IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 RCRev..No. 46 of 2006() ----------------------- RCA.180/2004 of 1ST ADDL.DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.65/2002 of MUNSIFF COURT/RENT CONTROL COURT, QUILANDY .................... REVN. PETITIONER/APPELLANT/RESPONDENT-TENANT --------------------------------- C.K.KUMARAN, S/O.PACHAN, 60 YEARS, VEGITABLE MARKET, CHERIKUNNUMMAL HOUSE, PANTHALAYANI AMSOM AND KOTHAMANGALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT/RESPONDENT/PETITIONER-LANDLADY: ------------- T.P.VALSALA, D/O.KUTTIKRISHNAN, 44 YEARS, SWASTHAM, RESIDING AT KRISHNA SADANIL, PANTHALAYANI AMSOM, KOTHAMANGALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA. BY ADV. SRI.V.V.SURENDRAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17 /01 /2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR 46/2006 ORDER ON I.A.NO.338/2006 DISMISSED. 17.01.2008. SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/- P.N.RAVINDRAN, JUDGE. /TRUE COPY/ K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- R.C.R. NO. 46 OF 2006-G ----------------------------------------- Dated 17th January, 2008. ORDER Balakrishnan Nair, J. The tenant is the revision petitioner. The landlady is the respondent. Eviction was sought under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as “the Act”). The Rent Controller allowed the application under Section 11(2)(b) and 11(3). The tenant appealed. The appellate authority reversed the finding under Section 11(2)(b), but affirmed the finding under Section 11(3). Hence this revision. 2. The pleadings of the parties under Section 11(3) of the Act are the following: The landlady's husband Mr.Ganesh was an employee of the State Bank of India. He has no other job or income. He is depending on the landlady and he wants to start a business in fruits and vegetables in the petition schedule building. The landlady has no other building sufficient for the said business. So, she caused to send a lawyer notice dated 28.11.2002, Rcr no.46/2006 2 claiming vacant possession of the scheduled room. Since the room was not surrendered, the R.C.P was filed. 3. The tenant resisted the claim under Section 11(3), raising various contentions. The landlady's husband Mr.Ganesh is a very rich man. He has landed properties and buildings. The requirement alleged for the room is not bona fide. He is not depending on the landlady. The room on the western side of the petition scheduled room is lying vacant. The said room can be used by Mr.Ganesh, if he intends to start the business. But, the landlady transferred the said room in favour of her brother, to show that there is no vacant room in her possession. The main source of livelihood of the tenant is the income from the scheduled room. There are no other suitable rooms in the locality to shift his business. 4. As mentioned earlier, the Rent Controller allowed the claim under Section 11(3), which was affirmed by the appellate authority also. The learned counsel for the revision petitioner mainly attacked the finding of the authorities below that the requirement of the room by Mr.Ganesh is bona fide. According to the learned counsel, he is a resident of Kozhikode and it is quite unlikely that he will start a business in vegetables in Koyilandy. So, the claim regarding the bona fide requirement is made without any basis. Secondly, it is contended that the finding under the first proviso to Rcr no.46/2006 3 Section 11(3) entered by the authorities below is unsustainable and liable to be set aside by this Court. The learned counsel pointed out that the landlady got the petition scheduled room under a family settlement only on 28.7.1998, as per Ext.A2. Ext.A5 rent deed was executed by her brother Mr.Reghuram on 30.7.1998. Ext.X1(b) assessment register of the local Municipality would show that the name of the landlady was shown in the column relating to the owner of the shop. This entry is seen made only on 22.2.2001. But, the column showing the name of the occupier still shows the names of M/s.Abdul Khader and Moideenkutty. Admittedly, they vacated before 30.7.1998. That means, when the entry was made, they ceased to be the tenants and at the relevant time, if the landlady's case is correct, Mr.Reghuram was the tenant. But, the said register does not reflect the said change of the tenant. So, it is contended that the document Ext.A5 is a sham document, prepared for the purpose of this case. The entries in Ext.X1(b) will draw serious doubts on the claim of the landlady. It is also submitted that the running of the shop by the said Mr.Reghuram, when the Commissioner visited the room, is stage managed. Therefore, the learned counsel for the revision petitioner prays for interfering with the finding of the appellate authority under the first proviso to Section 11(3). 5. The learned counsel for the landlady, on the other hand, submitted Rcr no.46/2006 4 that the finding of the authorities below regarding the bona fide need is a finding of fact entered based on the evidence on record. He further pointed out that the contention that the running of the shop by the landlady's brother is a stage managed arrangement ill-comes from the mouth of the tenant, as there was no cross-examination on this point, when the commissioner was examined as P.W.2. It is also pointed out that the column relating to the tenant in the assessment register never reflects the correct position. Even if the room is shown as unoccupied in the register, there may be actual tenant occupying it and in some cases, if occupation by a person is shown, it may be vacant or it may be occupied by some other person. It is further pointed out that if the tenant has a case that the room was actually vacant, nothing prevented him from taking out a commission to prove the same. So, the learned counsel prayed for dismissing the revision petition. 6. As noticed earlier, in this revision, we need only consider the validity of the finding regarding the bona fide need of the husband of the landlady for the room and also the correctness of the finding under the first proviso to Section 11(3), as the appellate judgment was attacked before us only on those two points. Except the statement of the landlady when she was examined as P.W.1 that her husband is a native of Kozhikode, there is no evidence on record to show that he is a resident of Kozhikode. Further, Rcr no.46/2006 5 even assuming he is a resident of Kozhikode, nothing prevents him from doing some business in Koyilandy vegetable market, as the room is stated to be in the said market. So, the attack made against the bona fide requirement of the landlord on the ground that her husband is a resident of Kozhikode, cannot be accepted. 7. The appellate authority negatived the claim of the tenant under the first proviso to Section 11(3), relying on Ext.A5 rent deed executed by Mr.Reghuram and also the evidence of the Commissioner, including the report filed by him. We are of the view that the entries in the assessment register do not always reflect the correct factual position. Even though the landlady came to be the owner of the scheduled room in 1998, her name was entered only after the lapse of three years, in 2001. Normally, the entry regarding the name of the owner in the assessment register is changed from time to time, at the motion made by the new owner, when a change of ownership takes place. But, in the case of change of the name of the tenant, nobody is interested and for reflecting the said change in the register, it will take time. Going by Ext.X1(b), the rooms are not vacant. But, two persons are in occupation. The above fact itself would show that the register does not reflect the correct factual position. Further, the view taken by the appellate authority, relying on the Commissioner's evidence and Rcr no.46/2006 6 Ext.A5, is a plausible view on the facts. It cannot be said to be perverse or one which no man in his senses will arrive at. Therefore, while exercising our jurisdiction under Section 20 of the Act, we are not justified in reversing that finding of fact. In view of the above position, both the contentions raised by the learned counsel for the revision petitioner are rejected and the R.C.R is dismissed. 8. The learned counsel for the revision petitioner prayed for some time to vacate the scheduled building. We heard the learned counsel for the respondent also on this point. Having regard to the fact that the revision petitioner is running a business in the room, he is granted three months' time from today, to vacate the room, on condition he files an unconditional undertaking in the form of an affidavit before the execution court within three weeks from today, undertaking to vacate the scheduled room within three months from today. He shall pay the arrears of rent, if any, within one month from today and also continue to pay the rent promptly, till the room Rcr no.46/2006 7 is vacated. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/