IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 RCRev..No. 370 of 2005() ------------------------ RCA.52/2004 of II ADDL. DISTRICT COURT, TRIVANDRUM RCP.7/2004 of I ADDL.M.C.,TRIVANDRUM .................... REVISION PETITIONERS/RESPONDENTS/PETITIONERS(L.L) ------------------------------------------------- (*)1. G.VISALAKSHY AMMAL, (died) AGED 81 YEARS, W/O. LATE A.ANANTHA PADMANABHAN OF T.C 4/1617, "VAIDYANATH", KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM-3, PRESENTLY AT T.C NO.4/1704, BELHAVEN GARDENS, KOWDIAR THIRUVANANTHAPURAM. 2. V.BHAGAVATHY S.MONY, AGED 55 YEARS, D/O.G.VISALAKSHY AMMAL, SENIOR ASSISTANT, KSRTC, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, RESIDING AT T.C. NO.4/1704, BELHAVEN GARDENS, KOWDIAR, THIRUVANANTHAPURAM. (*) THE SECOND PETITIONER IS RECORDED AS THE LEGAL HEIR OF THE FIRST PETITIONER VIDE ORDER DATED 04/02/2008 IN RCR 370/2005 BY ADV. SRI.NAIR AJAY KRISHNAN SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENT(S): RESPONDENT/APPELLANT/COUNTER PETITIONER(TENANT) -------------------------------------------------------------- BELHAVEN CONSUMERS CO-OPERATIVE SOCIETY LTD, T.205, T.C.NO.4/1705 BELHAVEN GARDENS, KURAVANKONAM WARD, KOWDIAR, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. ADV. SRI.R.MANOJ SRI.P.RAVEENDRAN PILLAI SMT.I.INDIRA RAVEENDRAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R.No.370/2005-G ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of October, 2008. O R D E R Raman, J. The landlady is the revision petitioner. R.C.P No.7/2004 was filed by the aged mother and her daughter as petitioners 1 and 2 seeking eviction under Section 11(3) of the Kerala Buidings (Lease and Rent Control) Act, 1965, for short 'the Act' on the plea of bona fide need for own occupation by the second petitioner. It is a two storied building where the petitioners are residing in the upstair portion and the ground floor is let out to a Co- operative Society where a ration shop is conducted. During the pendency of this revision, the first petitioner died and the second petitioner who is the sole legal representative, has succeeded to the estate of the deceased. The bona fide need as alleged in the R.C.P was that the second petitioner was suffering from arthritis and, therefore, she cannot climb staircase. She was working in K.S.R.T.C, Vaikom, who subsequently was transferred to Thiruvananthapuram and, thereafter, filed R.C.P. Exts.A9 to A10(g) are the prescriptions, medical certificates etc. to show that the second petitioner was suffering from arthritis. The second petitioner gave evidence as PW.1. R.C.R No.370/2005 -:2:- On the side of the counter petitioner Ext.B1 was marked which is an attested copy of the order in R.C.P.No.28/1993 and Sri.P.Ayyappan was examined as CPW1. 2. The Rent Control Court, after analysing the evidence on record, found that the bona fide need as pleaded is true and ordered eviction. Even though the counter petitioner/respondent contended that the building is not suitable for residential purpose, as according to him, it is a shop building and having iron shutters, PW.1 gave evidence to the fact that the building was originally constructed for residential purpose and, subsequently, shop shutters were erected. It has also come out in evidence of CPW.1 that the petitioner schedule building is having five rooms and a kitchen type room with bathrooms, which clearly shows that the petition schedule building was originally constructed for residential purpose. Therefore, that the building is not suitable for residential purpose is belied by the evidence in the case. It is only when it was let out for purposes other than residential, that the iron shutters were fixed. Therefore, the changes that was brought out to the ground floor of the building, by no means is a reason to say that the building as such is a non-residential building. The Rent Control Court found that the benefit of the second proviso to Section 11(3) of the Act was not pleaded as R.C.R No.370/2005 -:3:- it is only a Co-operative Society. The fact remains that the second petitioner is suffering from arthritis was proved on evidence. It is a fact that a person suffering from such ailment cannot often climb the stairs and therefore, the need as such for the ground floor was proved. 3. However, the Appellate Court reversed the finding of the trial court, mainly relying on the fact that the R.C.P filed under Section 11(2)(b) of the Act has no mention of the health condition of the second petitioner. 4. In an application for eviction on the ground of arrears of rent, there is no need or necessity to mention the health condition of the petitioner. Such contentions are required to be stated only when a building is sought to be evicted on the ground of bona fide need. Therefore, the finding of the Appellate Court for reversing the order of the trial court on such reasoning is clearly illegal. It is true that the petitioner has not contented that she wanted larger area for occupation. It is not the case of the landlady that the ground floor is also required as an additional space. Therefore, Section 11(8) of the Act will not be attracted. 5. Therefore, a building where the upstair portion is being occupied for residential purpose and in view of fact that the landlady wanted the ground floor, that itself explains the circumstance under which R.C.R No.370/2005 -:4:- upstair portion could not be continued to be used for residential purpose. A separate plea explaining the circumstances why the upstair portion is not suited to the need is unnecessary. In the circumstances, the Appellate Court was not right in reversing the order of the Rent Control Court. 6. We in the circumstances, allow this revision petition affirming the orders passed by the Rent Control Court and set aside the order of the Appellate Authority. It is contended by the learned counsel for the respondent, that the Co-operative Society is running a ration shop in the ground floor though the petitioner has a case that the same has become defunct, there is no acceptable evidence in this regard. In the circumstances, we give ten months time to the respondent to give vacant possession of the building on the following conditions: i. The respondent herein shall give an undertaking in the form of an affidavit before the Execution Court agreeing to surrender vacant possession of the premises on or before 28/08/2009, and such an undertaking shall be given within a period of one month from today, and they shall also deposit the entire arrears of rent, if any. ii. The respondents shall continue to pay the amount equivalent to the monthly rent for use and occupation, until vacant possession of R.C.R No.370/2005 -:5:- the premises is surrendered to the landlady. iii. No third party shall be inducted into the premises. In case of failure to comply with any of the aforesaid conditions, the order of eviction passed by the Rent Control Court will forthwith become enforceable or otherwise the same shall stand deferred for 10 months. The R.C.R is allowed as above. (P.R. Raman, Judge.) (T.R. Ramachandran Nair, Judge.) ms