IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 RCRev..No. 79 of 2007() ----------------------- RCA.6/2005 of DISTRICT COURT, KASARAGOD RCP.17/2004 of PRL.MUNSIFF, KASARAGOD .................... REVISION PETITIONER/RESPONDENT/RESPONDENT: ---------------------------------------------------------- DR.P.VENUGOPALAN NAIR, AGED 55 YEARS, S/O UKKARAN NAIR, USHA CLINIC AND PHARMACY, BEDIYADKA ROAD, P.O.KUMBLA, KASARGOD. BY ADV. SRI.SURESH KUMAR KODOTH SMT.V.SETHUKUTTY AMMA RESPONDENT(S)/ APPELLANTS/PETITIONERS: -------------------------------------------------- 1. MOHAMEDKUNHI, S/O. LATE MOIDEENKUNHI HAJI, NEAR MUTTAM GATE, MANGALPADY P.O., KASARGOD TALUK. 2. ABDUL KAREEM, S/O. LATE MOIDEENKUNHI HAJI, NEAR MUTTAM GATE, MANGALPADY P.O., KASARGOD TALUK. 3. MOHAMED HANEEF, S/O. LATEMOIDEENKUNHI HAJI, NEAR MUTTAM GATE, MANGALPADY P.O., KASARGOD TALUK. ADV. SRI.D.KRISHNA PRASAD FOR R1TO 3 SRI.M.HARISHARMA FOR R1TO 3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/02/2010, ALONG WITH RCR.195 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR.79/07 ORDER ON I.A.635 OF 2007 IN RCR.79 OF 2007 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 10.2.2010 okb /True copy/ P.A. to Judge C.R. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------------------------------------ Rent Control Revision Nos. 79 & 195 of 2007 ------------------------------------------------------------ Dated this the 10th day of February, 2010 O R D E R Pius C.Kuriakose,J. The parties are referred to herein as the Landlord and the tenant. RCR.79/07 is filed by the tenant. RCR.195/07 is filed by the landlord. The revision petitioners/tenants are aggrieved by the judgment in the rent control appeals. Since the landlord's case for eviction in the context of the ground under Section 11(2)(b) was declined by the authorities below concurrently on the ground under Section 11(2)(b) and since we do not find any illegality, irregularity or impropriety with the decision of the authorities below in the context of the ground under Section 11(2)(b) we do not propose to refer to the rival contentions in the context of that ground. We confirm the order of authorities below declining eviction under Section 11(2)(b). We however observe that the cause of action for eviction on the ground of arrears of rent is a recurring one and it is always open to the landlord to seek eviction on the ground of arrears of rent once it is seen the tenant has defaulted payment of rent. RCR.79 & 195/07 2 2. The case of the landlord in the context of the substantial question under Section 11(3) was that 1st petitioner in the Rent Control Petition was without any job or avocation and he needs the petition schedule building which is in the first floor of a larger building belonging to the landlord for conducting business in plastic and stationery. The tenant is a Homeopath and is conducting a pharmacy in the petition schedule building. His contention was that the landlords are having vacant possession of other vacant rooms in the ground floor of the building and that the room in the ground floor of the building will be more ideal for conducting the proposed business even if the need is genuine. It was also contended that the Rent Control Petition is liable to be rejected in view of the 1st proviso to Section 11(3). It was also contended that the tenant is entitled to protection under the second proviso to Section 11 (3). The Rent Control Court evaluated the evidence which consisted of Ext.A1 to A4, PW1 and RW1 and came to the conclusion that the need was not bonafide. According to the Rent Control Court a room in the ground floor of the building will be more suitable for conducting of the business proposed by the 1st petitioner in the Rent Control Petition RCR.79 & 195/07 3 than the petition schedule building in the first floor. The learned Rent Control Court would infer and conclude that the action of the landlord in not seeking eviction of a room in the ground floor is indicative of absence of bonafides. That court however, held following the judgment of the Full Bench reported in Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (F.B) that the tenant was unsuccessful in establishing his entitlement for the protection of the 2nd proviso to S.11(3). However, in view of the finding that the need is not bonafide order of eviction was declined under Section Section 11(3). 3. The Rent Control Appellate Authority keeping in mind the judgment of the Full Bench referred to above concurred with the Rent Control Court's view that the tenant is not entitled to protection of second proviso to Section 11(3). That authority however held that it is for the landlord to decide where he should conduct his business. According to that authority, since there is no vacant room in the ground floor, the landlord has the prerogative to pick and choose one from among his various tenants and even the authorities under Rent Control Court were not empowered to sit in judgment over the wisdom exercised by RCR.79 & 195/07 4 the landlord under the rule of pick and choose. Accordingly interfering with the order of Rent Control Court the Appellate Authority would allow the Rent Control Petition on the ground of bonafide need for own occupation. 4. In the revision filed by the tenant various grounds have been raised assailing the decision of the Appellate Authority and Mr. Suresh Kumar Kodoth addressed us extensively on all those grounds. Sri.D.Krishna Prasad, learned counsel for the revision petitioner however would support the judgment of the Appellate Authority on the basis of various reasons stated therein. We have very anxiously considered the rival submissions addressed at bar. PW1 is the 1st petitioner in the Rent Control Petition the joint landlord and de facto claimant. His evidence inspired confidence in the mind of the Rent Control Appellate Authority which under the statutory scheme is the final court on facts. Bonafides of the need was sought to be assailed mainly on the reason that there are other buildings in the ground floor. No evidence was adduced by the tenant to show that any vacant building was available in the possession of the landlord. The evidence on the contrary is to the effect that all the rooms in the ground floor are RCR.79 & 195/07 5 occupied by the tenants. The Rent Control Court's view apparently based on common sense is that a ground floor room will be more ideal for conducting the proposed business of stationery and plastic and the landlord ought to have sought to evict a tenant in occupation of a ground floor room. But it should not be forgotten that the tenant is a Homeopath conducting Homoeo Dispensary catering to the needs of a large number of people and it is his own admission that he has been very successfully carrying on his dispensary in the petition schedule building despite it being in the first floor. The Rent Control Court is not expected to sit in judgment over the wisdom of landlord to identify one among his various tenanted rooms for conducting the proposed business. The rule or power of pick and choose, conceded to the landlord when a landlord has several tenants, has received recognition in rent control jurisprudence. Unless it can be said that it is with an oblique motive that landlord has chosen the tenant who is sought to be evicted for action in preference to the other tenants it is not for the authorities under statute to intervene. We feel that nothing has been brought out in this case which will show that the power of pick and choose has RCR.79 & 195/07 6 been exercised by the landlord in this case with malafides. In other words we do not find any illegality, irregularity or impropriety about the decision of the Appellate Authority that the order of eviction is liable to be passed against the tenant. 5. As a last plea Sri.Suresh Kumar Kodoth requested that at least one year's time be granted for surrendering the premises. The above request is opposed by Mr. Krishna Prasad. However, we feel that in the facts and circumstances of this case there is justification for granting time till 15.9.2010 subject to certain conditions. Result of the above discussions is as follows: Both the Rent Control Revisions are dismissed. The order of eviction passed against the revision petitioner in RCR.79/2007 under Section 11(3) is confirmed. However, execution court is directed not to order delivery of the petition schedule building to the landlord till 15.9.2010 subject to the following conditions:- (i). The tenant will file an affidavit before the execution court or the Rent Control Court as the case may be undertaking to give peaceful surrender of the building in question to the 1st respondent on or before 15.9.2010 . RCR.79 & 195/07 7 (ii). The tenant will also make an undertaking through the same affidavit that arrears of rent if any due as on date will be discharged within one month and occupational charges at the admitted contract rent rate of Rs.800/- per mensum will be paid as and when the same falls due. The affidavit shall be filed within three weeks from today and it is made clear that the tenant will get benefit of the time granted by this order only if the affidavit is filed on time. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb