IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 RCRev..No.525 of 2005 (D) & CROSS OBJECTION NO.58/06 --------------------------------- RCA.45/2004 of 1ST ADDL.DISTRICT COURT/ RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.49/2000 of PRL.M.C., KOZHIKODE-II .................... PETITIONERS IN RCR APPELLANTS IN RCA/RES.IN RCP ------------------------------------------------------------- 1. CHALIYIL HARIDASAN, S/O.LATE KUTTAYI, AGED 44, HARSHA NIVAS, VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK. 2. DEVU, AGED 63, W/O. LATE KUTTAYI, KUTTITHODI HOUSE,VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK. 3. CHALIYIL SUSHEELA, AGED 39, D/O.LATE KUTTAYI, RESIDING IN -DO- 4. CHALIYIL GIRIJA, AGED 37, D/O. LATE KUTTAYI, RESIDING IN -DO- 5. CHALIYIL SASI, AGED 35, S/O. LATE KUTTAYI, RESIDING IN -DO- BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): RESPONDENTS IN RCR,RES.IN RCA, PETITIONERS IN RCP ------------------------------------------------------------------------------------ 1. MANIYOLI RATHNAVATHI,W/O. LATE GANGADHARAN, AGED 63, GIRI NIVAS, RAMANATTUKARA, VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK. RCR.525/05 -2- 2. M.USHADEVI, D/O. LATE GANGADHARAN, AGED 39, GIRI NIVAS, RAMANATTUKARA, VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK. 3. M.ASHALATHA, D/O. LATE GANGADHARAN, AGED 37, GIRI NIVAS, RAMANATTUKARA, VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK. 4. M.NISHARANI, D/O. LATE GANGADHARAN, AGED 31, GIRI NIVAS, RAMANATTUKARA, VELIPRAM AMSOM DESOM, KOZHIKODE TALUK. 5. M.JISHARANI, D/O. LATE GANGADHARAN, AGED 28, GIRI NIVAS, RAMAATTUKARA, VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK. 6. M.GIREESH, S/O. LATE GANGADHARAN, AGED 28, GIRI NIVAS, RAMANATTUKARA, VELIPRAM AMSOM DESOM, KOZHIKODE TALUK. 7. M.SHALINI, D/O. LATE GANGADHARAN, AGED 26, GIRI NIVAS,RAMANATTUKARA, VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK. ADV. SRI.R.SUDHISH FOR R1 TO 7 SRI.P.P.BALAN FOR R1 TO 7 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ALONG WITH C.O. NO.58 OF 2006, ON 09/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.525 of 2005 & Cross Objection No.58 of 2006 ------------------------------------------------ Dated this the 9th day of November, 2010 ORDER Gopinathan, J The respondents/tenants in RCP.49/2000 on the file of the Rent Control Court, Kozhikode-II are the revision petitioners. The respondents herein were the petitioners before the trial court. The respondents herein filed the above petition before the Rent Controller seeking order of eviction under Sections 11(2)(b); 11(3); 11(4)(ii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the “Act”) with an allegation that the petition schedule building originally belonging to late Gangadharan, R. C. R. No.525 of 2005 -2- the predecessor of the respondents, was let out to late Kuttayi, the predecessor of the revision petitioners on 01/07/1982 for a monthly rent of Rs.100/- and that on death of Gangadharan on 23/11/99, the petition schedule building devolved upon the respondents. On death of the tenant Kuttayi, the leasehold right devolved upon the revision petitioners. The original rent was subsequently enhanced to Rs.150/- per month. It was kept in arrears from January, 2000. It was further contended that the husband of the third respondent, Vijayanand was employed in Kerala Transport Company and that he had resigned the job for personal reasons and the main income of the family of the 3rd respondent was lost and that R. C. R. No.525 of 2005 -3- the petition schedule building was bona fide required for the third respondent for starting a garment manufacturing business and that the third respondent had got sufficient experience in garment manufacturing and that no other building suitable for the requirement of the third respondent is in the possession of the respondents. It was further contended that the revision petitioners had been using the petition schedule building in such a manner that it has sustained damages reducing its value and utility materially and permanently and that the revision petitioners had not been doing any business in the petition schedule building and it was kept closed for more than six months. It was further R. C. R. No.525 of 2005 -4- contended that the first revision petitioner was owning a taxi car with airport permit and that the 5th petitioner is a taxi driver. Daughters of Kuttayi were married and were residing with their husbands at different places and none of them are doing any business in the petition schedule building. The second petitioner, the widow of Kuttayi was being looked after by the 5th respondent and they did not require the petition schedule building any more. 2. The revision petitioners admitted the lease transaction, but denied the arrears of rent; the bona fide need urged; the damages caused to the petition schedule building and the cessation of occupation. R. C. R. No.525 of 2005 -5- 3. On the side of the respondents, PWs.1 to 4 were examined. On the side of the revision petitioners, RWs.1 to 3 were examined. Exts.A1 to A6 were marked on the side of the respondents. On the side of the revision petitioners Exts.B1 to B3 were marked. Exts.C1 to C3 and Exts.X1 to X6 were also marked. On appraisal of the evidence recorded during the enquiry, the Rent Controller arrived at a finding that the bona fide need urged by the respondents was established. Consequently, the petition was allowed in part and the revision petitioners were directed to put the respondents in possession of the petition schedule building under Section 11(3) of the Act. The eviction sought under other grounds were declined. R. C. R. No.525 of 2005 -6- Aggrieved by the order of eviction under Section 11(3), the revision petitioners preferred appeal as RCA.45/04. The respondents on the other hand filed a cross appeal so far as the order declining eviction under other grounds. The Appellate Authority considered the appeal and cross appeal and by judgment dated 06/08/05 dismissed the appeal as well as the cross appeal. Assailing the legality, correctness and propriety of the above judgment dismissing the appeal and the cross appeal, this revision petition was preferred. Assailing the judgment so far as it dismissed the cross appeal the respondents had preferred cross objections. 4. We heard Sri.S.V.Balakrishna Iyer, senior R. C. R. No.525 of 2005 -7- counsel appearing for the revision petitioners and Advocate Sri.R.Sudheesh appearing for the respondents as well as for the cross objectors. We were taken through the relevant parts of the evidence of both side by Sri.S.V.Balakrishna Iyer and the judgment impugned. The third respondent who was examined as PW2 had given evidence regarding the bona fide need urged. The main attack against the evidence of PW2 is that her husband had not been going for any job since 1995. The bona fide need was urged stating that since her husband left the job there was no income for the family and to find out income, the business was proposed. According to the learned counsel, it was five years after the husband R. C. R. No.525 of 2005 -8- quitting the job the bona fide need was urged and the petition was filed. So, there is lack of bona fides. It was also argued that the third respondent had got a fractional share in a factory and she had been receiving income and so it is not at all necessary for her to start a garment manufacturing business. We find that it is not for the tenants to dictate, but for the landlords to decide whether they or any one of them should go for their own another business or not, what, when and where ? Both the fact finding authorities below had meticulously analysed the evidence on the side of the respondents and found that the bona fide need urged is genuine. While sitting in revision, we find little material to conclude that R. C. R. No.525 of 2005 -9- the fact finding authorities below had anyway gone wrong in appreciating the evidence regarding bona fide need. 5. The revision petitioners have got a contention that attached to a brick factory there were three rooms lying vacant and two of them were let out immediately before the institution of the petition and one room is still remaining vacant. Other than the so called statement there is no evidence on record to come to a conclusion that any such building was remaining vacant, let out or in the possession of the respondents. The revision petitioner had not cared to bring out the extract of the Assessment Register to establish the defence that the respondents are having R. C. R. No.525 of 2005 -10- vacant possession of any other building. So, the claim for bona fide need cannot be defeated because of the first proviso to Section 11(3). 6. As regards the second proviso, it is now fairly conceded by Sri.S.V.Balakrishna Iyer that at present the first revision petitioner alone is doing the business in the petition schedule building and other revision petitioners are not exercising any right over the petition schedule building as legal heirs of the deceased original tenant. According to him, revision petitioner is running business in plastic goods under the name and style “Bombay Fancy”. On the other hand, it is admitted that he was owning a taxi with airport permit. What is the income from the business run in the petition R. C. R. No.525 of 2005 -11- schedule building or what is the income from the taxi service is not brought in evidence. Therefore, the revision petitioners had not succeeded to establish that the main source of livelihood of the first revision petitioner is the business run in the petition schedule building. It is in that background the authorities below had declined the benefit of the second proviso. We find no error, illegality or impropriety committed by the authorities below in appreciating the evidence regarding the prayer for eviction sought under Section 11(3) so as to be rectified in exercising revisional powers. 7. As regards the prayer for eviction under Sections 11(2)(b), 11(4)(ii) and 11(4)(v), the authorities below had concurrently found against R. C. R. No.525 of 2005 -12- the respondents. The concurrent finding declining eviction under Sections 11(2)(b) and 11(4)(ii) was not at all assailed before us. On the other hand, Advocate Sri.Sudheesh had argued that the report of the Commissioner would show that the building was kept closed. The revision petitioners had got an explanation that for taking stock, the first revision petitioner had gone to Bombay and at that time, the respondents stage-managed to take out a commission and what is reported by the Commissioner is not correct. The authorities below had believed the explanation given by the revision petitioners. We find no error or illegality or impropriety. The revision petition as well as the cross objection fails. Accordingly, both are R. C. R. No.525 of 2005 -13- dismissed. 8. Sri.Balakrishna Iyer, the learned senior counsel sought for one year time to vacate the premises. It was stoutly opposed by Advocate Sri.R.Sudheesh. Having heard either side, we find that it would be just and appropriate to grant time till 15/07/11 on the following conditions:- (i) The revision petitioners shall file an affidavit within three weeks from today before the Rent Controller/execution court undertaking to vacate the premises on or before 15/07/11 without raising any objection. (ii) The revision petitioners shall pay damages for occupation at the rate of Rs.500/- per month with effect from 01/12/10 till the petition schedule building is vacated. R. C. R. No.525 of 2005 -14- In the event the revision petitioners comply with the above conditions and the undertakings are honoured, the order of eviction shall be kept in abeyance till 15/09/11. In the event of failure to comply with any of the conditions, the respondents are at liberty to get the order of eviction executed on proof of such failure to comply with such condition. There will be no order as to costs. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/- The date “15/09/11” occurring in the last paragraph of the final order dated 09/11/2010 in RCR 525/2005 is corrected as “15/07/2011” vide order dated 04/02/2011 in I.A.3054/2010 in R.C.R.525/2005. Sd/- Registrar (Judicial)