IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 RCRev..No. 169 of 2011() ------------------------ RCA.122/2008 of WAKF TRIBUNAL, KOZHIKODE RCP.41/2007 of RENT CONTROLLER/PRINCIPAL MUNSIFF, KOZHIKODE-I. .................... REVISION PETITIONERS/RESPONDENTS/PETITIONERS: ----------------------------------------------------------------------------------- 1. SAYED ABOOBACKER BAFAKI THANGAL, AGED 55, S/O.SAYED ABDURAHIMAN BAFAKI THANGAL, 2. THARAMMAL NAFEESA, AGED 46, W/O.SAYED ABOOBACKER BAFAKI THANGAL, BOTH RESIDING AT VALIYAKATH BUNGALOW, OORALUNGAL AMSOM, VATAKARA TALUK, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): APPELLANT/RESPONDENT ----------------------------------- P.P.HAMSA, S/O.LATE S.P.AHAMMED, KILTAN ISLAND, LAKSHWADWEEP, RESIDING AT ZAM ZAM HOUSE, VENGERI AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVS. SRI.V.S.CHANDRASEKHARAN, SMT.LEKSHMI SWAMINATHAN. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss PIUS C.KURIAKOSE & P.BHAVADASAN, JJ. --------------------------------------------------- R.C.R.No. 169 of 2011 ---------------------------------- Dated this the 5th day of July, 2011 ORDER P.BHAVADASAN,J The revision petitioners filed petition for eviction of the tenant under Section 11(3) of the Act 2 of 1965 for starting a super market in the ground floor of the building. The tenant resisted the plea for eviction pointing out that the petition lacks bonafide. He also claimed protection of the 2nd proviso to Section 11(3). 2. Based on the pleadings issues were raised by Rent Control Court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A6 and A3 series. The respondent was examined as RW1 and Ext.B1 was marked. Exts.C1 and C2 are the commissioner's report and plan. The Rent Control Court on an evaluation of the evidence, allowed the petition and ordered eviction under Section 11(3) of the Kerala Buildings(Lease & Rent Control) Act. 3. The tenant carried the matter in appeal before the Rent Control Appellate Authority. The appellate court reversed the R.C.R.No. 169 of 2011 2 order of the Rent Control Court and dismissed the petition for eviction. 4. The learned counsel appearing for the revision petitioner submitted that the first respondent has no job and income of his own and he wanted to start a super market using the three rooms in the ground floor of the building of which one is the petition schedule building. According to him one of the tenants surrendered the room. Though R.C.P 47/2009 filed was dismissed in R.C.A 1116/2009 filed against that order matter was compromised and the tenant surrendered the building. At present petitioner is in possession of two rooms and he can start the margin free shop only if he gets the petition schedule room also by converting the rooms into a hall by removing the intervening partitions. The learned counsel for the revision petitioner stated that the reasons given by the appellate authority to deny eviction are untenable. The view of the appellate authority that since rooms in the first floor are vacant if there was any bonafides in the claim the petitioner could have started the business there is untenable. The landlord R.C.R.No. 169 of 2011 3 had significantly stated the reason for opting the ground floor. 5. After hearing both sides and perusing the records and the evidence, we find considerable force in the submissions made by the learned counsel for the petitioners. Both in the petitions as well as in evidence, the petitioner had clearly stated that they want to start a super market in the ground floor after removing the intervening walls of the room let out to various tenants. The observations of the lower appellate court that since rooms were available in the first floor, if the landlord was sincere in his claim, he could have started business there, is without foundation. Apart from the fact that those rooms are not suitable for the functioning of a super market, the revision petitioners had specifically stated in the petition and adduced evidence to show as to why they intend to start a super market in the ground floor of the building. 6. The reasons given by the Rent Control Appellate Authority for finding in favour of the tenant are entitled to protection of the first proviso to Section 11(3) cannot have support in law. The landlord had clearly stated the reasons as to R.C.R.No. 169 of 2011 4 why he cannot start a supermarket in the first floor. Much of the discussions of the Lower Appellate Authority centers around the point of time at which the availability of the room has to be considered. The claim of the landlord is that a supermarket cannot function in the first floor of the building and he needs ground floor for effective running of a super market. The fact that rooms are available in the first floor is therefore irrelevant in the present context. It is not for the tenant to dictate as to place where the landlord has to start a supermarket. The finding of the appellate authority that the landlord is liable to be non-suited on the basis of 1st proviso to Section 11(3) is therefore clearly unsustainable 7. Both the authorities below have, for convincing and cogent reasons, found that tenant is entitled to the benefit of the proviso 2 to Section 11(3) to confirm that finding. In the result, the R.C.R. is allowed. The order of the Rent Control Appellate Authority is set aside and the order of the Rent Control Court is restored. However, the respondents herein are given four months' time from today to vacate the premises on R.C.R.No. 169 of 2011 5 condition that they file an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before expiry of four months within three weeks' from the date of this order and also on continuing to pay the occupational and other charges at the same rate at which they were paying before. PIUS C.KURIAKOSE, JUDGE P.BHAVADASAN, JUDGE. ln