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 24TH JANUARY 2008 / 4TH MAGHA 1929 RCRev..No. 27 of 2008() ----------------------- RCA.34/2002 of ADDL. DISTRICT COURT, THALASSERY RCP.37/2000 of MUNSIFF COURT, THALIPARAMBA .................... PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------ KUTTUKKAN ABDULKHADER,S/O.ASSAN, AGED 56 YEARS, RESIDING AT TALIPARAMBA AMSOM DESOM, TALIPARAMBA MUNICIPALITY, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.P.BABU RESPONDENTS: PETITIONER ----------------------- CHULLIYODAN PUTHIYAPURAYIL SULAIKHA, D/O.ASSANKUNJI HAJI, AGED 28 YEARS, RESIDING AT HOUSE NO. 62,WARD NO.VI OF TALIPARAMBU MUNICIPALITY,TALIPARAMBU AMSOM,DESOM KANNUR DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- R.C.R.NO.27 OF 2008 -------------------------------------------------------------- Dated this the 24th day of January, 2008. O R D E R Balakrishnan Nair, J: Tenant is the revision petitioner. Land lady is the respondent. She sought eviction under 11(3) of the Kerala Building(Lease and Rent Control) Act (hereinafter referred to as the Act). Both the authorities concurrently upheld the claim. Hence, this revision. 2. The scheduled building was given on lease to the tenant on 16.9.1996 at a monthly rent of Rs.200/=. The petitioner's husband wants the said room to start a business in stationary items. He is presently unemployed. The land lady's husband is depending on her for the room. The tenant has got other rooms in his possession. He is not depending on the income from the tenanted premises. Therefore, land lady sought eviction under Section 11(3). The tenant resisted the claim by contending that there is no bonafides in the claim of the land lady's husband. He is doing business along RCR.NO.27/08 . 2 with his father in Thaliparamba. If her husband wants to conduct business, there are other rooms in her possession. Further, the tenant has no other suitable room to shift his business. Therefore, he prayed for dismissal of the petition. The husband of the land lady was examined as PW1 and Exts.A1 to A6 were marked from her side. the tenant was examined as RW1 and Exts.B1 to B8 were marked. The Rent Controller allowed the application holding that the need urged by the land lady is bonafide. It was held that the tenant is not entitled to get protection of any of the provisos to Section 11. The appellate authority considered the case of the tenant in detail with reference to the evidence and materials on record and affirmed the findings. Hence, this revision. 3. The petitioner attacked the orders of the courts below mainly canvassing that the need urged is not bonafide. Learned counsel for the petitioner submitted that the marriage between the land lady and her husband took place in 1996 and entrustment of the room to the tenant was made on 16.9.1996. If the land lady's husband had a genuine desire to start a business, the room would not have been entrusted to the tenant. We feel that even if he did not want to start a business in 1996, nothing prevents him RCR.NO.27/08 . 3 from starting a business in 2006 and moving for eviction of the tenanted premises. It is also urged that the land lady's husband is running a stationary business along with his father and therefore, there is no need for him to start an independent business . The said contention also is plainly untenable. Even if he is having his own business, he can decide to start a new business. There is nothing in law which prevents a person from starting a new venture even if he is affluent. The learned counsel for the petitioner submitted that the land lady's father died during the trial of the rent control petition. He is admittedly the owner of several rooms. The landlady has inherited them and therefore, one of them could be used by her husband. This contention was considered by both the authorities. They found that there was no evidence on record to show that rooms owned by the land lady's late father were vacant. It was also noticed by the authorities below that there is no evidence on record to show that one of those rooms was alloted to the landlady. She may be one of the co-owners of the building owned by her late father. Benefit of the first proviso can be granted if only there is a vacant room in the possession of the land lady. Both the authorities found that the tenant has failed to prove the said fact. The same is a finding on fact which we RCR.NO.27/08 . 4 cannot disturb . Therefore the claim of the learned counsel for the petitioner for the benefit of the first proviso cannot be upheld. No other point was urged. The learned counsel for the petitioner prayed for some time to vacate the premises as the tenant is conducting a business there. Having regard to the facts of the case , the revision petitioner is granted six months' time from today to vacate the tenanted building on condition that he shall file an unconditional undertaking in the form of an affidavit before the execution court undertaking to vacate the premises within six months from today. The undertaking shall be filed within three weeks from today. The arrears of rent, if any, shall be deposited within one month from today. The rent due from time to time shall also be paid without fail till the building is vacated. Subject to this direction, the Rent Control Revision is dismissed. K. BALAKRISHNAN NAIR, JUDGE P.N. RAVINDRAN, JUDGE. cl RCR.NO.27/08 . 5