IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 CRP.No. 2395 of 2002(G) ----------------------- RCA.143/2000 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.29/2000 OF RENT CONTROL COURT, VADAKARA .................... REVN. PETITIONER(S): RESPONDENT-RESPONDENT IN R.C.P. ---------------------------------------------------- U. JANARDHANAN, JAWAN'S CLINIC, 21/200 (WRONGLY SHOWN AS 21/2000 IN THE CERTIFIED COPIES OF THE IMPUGNED JUDGMENT AND RCP ORDER) VADAKARA. BY ADV. SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP RESPONDENT(S): APPELLANT-PETITIONER IN R.C.P. --------------------------------------------- VATTAKKANDY PALAPARAMBATH VINOD KUMAR, S/O. NANU, VADAKARA AMSOM, DESOM & TALUK, VADAKARA P.O. ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CMP. 5980 OF 2002 DISMISSED. SD/- PIUS C.KURIAKOSE, JUDGE. 15-9-09 SD/- K.SURENDRA MOHAN, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------ CRP. No. 2395 of 2002 ----------------------------------------------- Dated this the 15th day of September, 2009 O R D E R Surendra Mohan, J. This is the tenant's revision challenging the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority ordering eviction of the revision petitioner tenant from the petition schedule premises. 2. The petition schedule premises is occupied by the tenant wherein he was conducting a business under the name and style “Jawan's Clinical Laboratory” along with his father, K.R. Kurup from September 1974 onwards. On the death of his father, he continued to conduct the Lab and he is in occupation of the tenanted premises. Earlier landlord was one Ummer Haji from whom, the shop room was purchased by the respondent's father, in his name. After the said purchase the tenant attorned to the respondent and has been paying rent to him. Though initially eviction was CRP. N0. 2395/02 -2- sought on the ground of arrears of rent also, the same was found against and has not been pursued thereafter. According to the respondent landlord, the building was needed by him for starting a business of his own in the premises. Therefore, a lawyer's notice was issued and thereafter, the Rent Control Petition was filed. 3. The claim of the landlord was stiffly resisted by the revision petitioner tenant. According to the tenant, there was absolutely no bonafides in the need that was put forward. According to him, the landlord was the only son of his father and was conducting a business in textiles, by name 'Sobha Textiles', along with his father. The claim that he wanted to start another business was only a ruse for eviction. It is the further case of the tenant that there is another shop room, No.21/199 just on the eastern side of the petition schedule premises, which belongs to the father of the respondent, which is vacant. So, if the landlord CRP. N0. 2395/02 -3- wanted to start a business of his own he could very well do so in the said vacant room. Therefore, the tenant prayed for dismissal of the rent control petition. 4. The evidence in the case consists of the oral testimonies of PW-1 and RW-1 and Exts.A1 to A3 and B1 to B3 documents. 5. The court below considered the rival contentions of the parties in the light of the evidence on record and came to the conclusion that the need put forward by the landlord was not bona fide. According to the Rent Control Court, if the landlord wanted to start a business of his own in textiles he could very well do so in the room belonging to his father that was already vacant. Regarding the benefit of the proviso to Section 11(3), the Rent Control Court did not enter any definite finding since bonafides of the need alleged by the landlord was found against. 6. The findings of the Rent Control Court were CRP. N0. 2395/02 -4- challenged by the landlord before the Rent Control Appellate Authority in RCA. No. 143 of 2000. The Appellate Authority on a reappraisal of the entire evidence found that the findings of the Rent Control Court were not justified. There was nothing unnatural or unbelievable in the need that was put forward by the landlord, who was a young man wanting to start a business of his own. The desire was only natural. The room that was alleged to be vacant did not belong to the respondent-landlord and therefore, existence of the said room cannot be a ground for negativing the need that was put forward by the landlord. On the question of the protection of proviso to Section 11(3) also the Appellate Authority found that there was no evidence to entitle the tenant to the benefits of the said provision and therefore, disallowed the claim of the tenant for the protection of the said proviso also. The findings of the Rent Control Appellate Authority are under challenge in this revision. CRP. N0. 2395/02 -5- 7. We have heard Sri.A.R.Dileep for the revision petitioner and Sri.K.Lakshminarayanan for the landlord respondent. We have been taken through the pleadings as well as the evidence in the case. We have also anxiously considered the submissions of the rival parties. 8. As rightly held by the Rent Control Appellate Authority, there is nothing unnatural in a young man desiring to start a business of his own though he is the only son of his father. Any such desire cannot be negatived for the reason that the father was having a flourishing business of his own. It is worth noticing that the landlord is married but is still living with his father, with no independent income of his own. Therefore, there is nothing wrong in his desire to have a business of his own for an independent income. Hence, for the said reason it cannot be found that the need was lacking in bonafides. 9. Counsel for the revision petitioner strenuously CRP. N0. 2395/02 -6- contended that there was another room, No.29/199 that was already vacant, which belongs to the landlord's father. Therefore, it is contended that the landlord could very well start his business in the said shop room. It is to be noted that the room that is alleged to be vacant belongs to the father of the landlord and therefore, the statutory bar under the first proviso to Section 11(3) is not attracted. It is submitted by the counsel for the landlord that the said room was in a dilapidated condition. The assessment records of the Panchayat does not show that the room is vacant or unoccupied. Therefore, the existence of a room that does not belong to the respondent landlord cannot be held to disentitle the landlord from seeking vacant possession of the petition schedule premises. 10. The counsel for the revision petitioner has relied on the decision of this Court in Muhammed Basheer v. Mujib Rahman, (2005)4 KLT 697 to contend that even a vacant CRP. N0. 2395/02 -7- room in the possession of the landlord's father would disentitle him from claiming vacant possession of the scheduled premises. However, the facts in the said case are totally different from the facts of the present case. That was a case in which the court found that the landlord's father had constructed a shopping complex containing 30 shop rooms of which 7 shop rooms were lying vacant. In the present case, as noticed above, though the landlord's father is alleged to be keeping a room vacant, the Panchayat records does not show that the same is vacant. The same is also submitted to be in a dilapidated condition. In such circumstances, the decision relied on by the revision petitioner has no application to the facts of the present case. 11. The counsel for the revision petitioner has not seriously contested the findings of the Appellate Authority regarding the eligibility of the tenant to the protection of CRP. N0. 2395/02 -8- the second proviso to Section 11(3). Therefore, we are not considering the said aspect of the matter. In view of the above, we confirm the findings of the Rent Control Appellate Authority that the landlord is entitled to an order of eviction under Section 11(3) of the Act. 12. As a last plea, the counsel for the revision petitioner pleaded for the grant of sufficient time to surrender vacant possession of the premises to the landlord. In the facts and circumstances of the case, we feel that time up to 30-4-2010 can be granted to the tenant to surrender vacant possession of the premises subject to the following conditions: 1. The tenant shall file an affidavit before the Rent Control Court or the Execution Court as the case may be, undertaking to surrender vacant possession of the premises to the landlord on or before 30-4- 2010, which affidavit shall be filed within a period of CRP. N0. 2395/02 -9- 3 weeks from today. 2. The tenant shall pay the arrears of rent if any due in respect of the tenanted premises and shall continue to pay rent at the current rent rate regularly till he surrenders vacant possession of the premises. 3. The landlord shall be free to execute the order of eviction in the event of default on the part of the tenant with respect to any of the above conditions. The civil revision petition is dismissed subject to the above conditions. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/- CRP. N0. 2395/02 -10- PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. CRP. No. 2395 of 2002 JUDGMENT 15th September, 2009