IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 RCRev..No. 290 of 2009(B) ------------------------ RCA.18/2008 of DISTRICT COURT, MANJERI RCP.23/2005 of MUNSIFF COURT, TIRUR .................... REVN. PETITIONER/APPELLANT/RESPONDENT: --------------------------------------------------- MULLAMMADAKKAL KUNHIMUHAMMED, AGED 53 YEARS, S/O. BEERANKUTTY, TIRUR TALUK, THANALUR AMSOM, AREEKAD DESOM, THANALUR P.O., MALAPPURAM DISTRICT. BY ADVS. MR. K.RAMACHANDRAN MR. S.SREEDEV RESPONDENT(S): RESPONDENT ------------------------- KAVUMPURATH KAUNHEEN'S SON ALIKUTTY, AGED 68, TIRUR TALUK, PONMUNDAM AMSOM, PONMUNDAM P.O., MALAPPURAM DISTRICT. ADVS. MR. JAMSHEED HAFIZ MR. JAMSHEED HAFIZ (CAVEATOR) MS. K.A.SANJEETHA (ADV.COMMISSIONER) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.290 of 2009 ---------------------------------- Dated this the 4th day of February, 2010 O R D E R -------------- Abdul Rehim,J. Respondent/tenant in RCP.23/2005 on the files of the Rent Control Revision, Tirur, is in revision aggrieved by the order of eviction issued under Section 11(3) of the Kerala Building (Lease & Rent Control) Act, 1965 (hereinafter for short the Act) which is confirmed in appeal by the Rent Control Appellate Authority, Manjeri in RCA.18/2008. Eventhough the Rent Control Petition was filed seeking eviction under Section 11(2)(b) also, the same was not allowed. Hence this revision petition is confined only with respect to the validity of orders of eviction concurrently passed under Section 11(3) of the Act. The parties are referred to hereunder as 'landlord' and 'tenant' as referred by the Rent Control Court. 2. Eviction on the ground of bonafide need for own occupation was urged stating that, the third son of the landlord namely Sri.Yasir is not having any job or avocation RCR.290/09-B 2 and that he is depending on the landlord to occupy the scheduled room for conducting business in paper plates, glass and accessories, with the assistance of the landlord. It is contended that two other sons of the landlord is having business of manufacturing paper plates and that there are no shops in the locality dealing with the said products and therefore there is high potential for such business being started in the plaint schedule room. It is further stated that the plaint schedule room being situated adjacent to the house of the landlord, it is suitable for the said business conducted with the assistance of the landlord. It is also contended that the landlord is not having any vacant rooms available in his possession which is convenient for accomplishing the above said need. 3. The tenant resisted the petition contending that the need projected is not true and genuine. It is stated that the landlord is having several vacant room in his possession and that his children are having their own business. The need alleged is only a pretext and a ruse for evicting the tenant to let out the building for higher rent. It was also contended that the tenant is living on the income derived from the business carried on in the plaint schedule room and RCR.290/09-B 3 that no other suitable buildings are available in the locality to shift the business. 4. PW1 landlord and PW2 his son, for whom the need is projected, were examined and Ext.A1 documents was marked on behalf of the landlord. RW1, the tenant and RW2 to 10 witnesses on his behalf, were examined and Ext.B1 to B3 documents were marked on behalf of tenant. C1 and C2 reports and sketch prepared by the Advocate Commissioner was also marked in evidence. 5. On an appraisal of entire evidence on record and oral testimonies of PW1 and 2, the Rent Control Court found that the need projected by the landlord is genuine and bonafide. The Rent Control Court noticed that even the tenant had admitted that the petitioner’s son Yasir is depending on the petitioner for the purpose of the room and that he is not successful in proving the allegation that Sri.Yasir is conducting an industry. The Rent Control Court further found that the tenant was not successful in proving that the landlord is in occupation of any other room suitable for accomplishing the need projected. Evaluating Ext.C1 and C2 commission report and sketch, as well as Ext.B2 and B3 abstracts of the Assessment Register of the Panchayat RCR.290/09-B 4 concerned, the Rent Control Court arrived at a conclusion that there are no suitable buildings available in the ground floor of the two buildings owned by the landlord for starting the business activity for which eviction is sought for. It is also found that there are special reasons available to the landlord to insist that the schedule building is the most suitable one for starting the business intended. On further evaluation of evidence on record the Rent Control Court found that tenant had miserably failed in proving that the income derived from the business conducted is the sole means of his livelihood. Considering oral testimonies of PW2 to 10 the court arrived at a conclusion that suitable other buildings are available in the locality for shifting the business of the tenant. Hence it is held that tenant is not entitled for protection for the second proviso to Section 11(3). 6. Before the Appellate Authority, strenuous arguments were advanced based on Ext.B2 & B3 abstracts of Building Tax Assessment Register and based on C1 and C2 commission report and sketch, in order to establish that landlord was in possession of other rooms suitable for establishing the business proposed. Relying on oral testimony of PW1 it was contended that even after filing of RCR.290/09-B 5 the Rent Control Petition, the landlord came into possession of the other rooms which he had let out to various tenants. Specific emphasis was placed on the admission of PW1 to the effect that, one room was let out for conducting shop dealing with Ayurvedic medicines of Coimbatore Arya Vaidya Sala. But the Rent Control Appellate Authority specifically found that the landlord was justified in insisting upon the petition schedule room for starting the business intended, because of the special circumstances regarding suitability of that room. It was also observed by the Appellate Authority that no subsequent event having material effect of eclipsing genuineness and bonafides of the need projected has been established by the tenant, warranting reversal of the findings rendered by the Rent Control Court. Hence order of eviction under Section 11(3) was confirmed. 7. Heard, Sri.K. Ramachandran, learned counsel appearing for the Revision Petitioner/tenant and Senior counsel Sri.T.Krishnanunni, who appeared on behalf of the Respondent/landlord. Emphasis was placed by Sri. K. Ramachandran on the aspect that there was no proper plea regarding details of the need projected, especially because the details of such need was not narrated in Ext.A1 lawyer RCR.290/09-B 6 notice. But on a perusal of averments contained in the Rent Control Petition, we are satisfied that the landlord had in so many words described the need for which the eviction was sought for. It is trite law by this time that, meticulous pleading with respect to the minute details are not a legal requisite for granting eviction, if there are evidence adduced to substantiate the claim. Hence we are not much impressed on the arguments based on such grounds. 8. However, much reliance was placed with respect to the first proviso to Section 11(3) based on Ext.C1 and C2 commission report and sketch, as well as based on Ext.B2 and B3 Assessment Registers. Specific admissions in the oral testimony was brought to our notice, which goes to the effect of admitting that the landlord had let out a room in a building situated nearby, for the “Coimbatore Arya Vaidya Sala”, even within a period of six months from the date of his examination. It was pointed out that the said building bearing Door No.401 was not occupied by the landlord for the purpose projected in the Rent Control Petition and that such a failure has got considerable relevance in evaluating genuineness of the need projected. On the basis of the above said contention we were persuaded to appoint an Advocate RCR.290/09-B 7 Commission from this Court to examine the relative suitability of the plaint schedule building and the said room bearing Door No:401. The relative nearness of the rooms to the residential building of the landlord and availability of working area with respect to both these rooms, were requested to be ascertained. In the commission report filed before this court, the Advocate Commissioner has pointed out that the house of the landlord is situated on the southern side of the plaint schedule room and there is a courtyard on the southern side suitable for parking vehicles for loading and unloading of goods. It is further pointed out that there is another courtyard in front of the residential building which situates adjacent to the plaint schedule room and if a door is fixed on the southern wall, the landlord can use the petition schedule room as well as the courtyard in front of the house for conducting business. It is noticed tat the distance from the plaint schedule building to the landlord’s house is only 8 Ft. At the same time the Advocate Commissioner had reported that no parking place is available with respect to the building having Door No:401 wherein “Coimbatore Arya Vaidya Sala” is presently running. It is stated that the said building is at a distance of about 88½ Ft: from the landlord’s RCR.290/09-B 8 house. It is further pointed out that there is a Bus Stop in front of the building. 9. From the above said facts, which are brought out to the notice of this court through the report of the Advocate Commissioner, we are convinced that even if the room bearing Door No.401 was available in vacant possession of the landlord subsequent to filing of RCP, the landlord has got sufficient reasons for not utilising the said buildings for the avowed purpose. 10. Learned counsel Sri.K.Ramachandran made a further attempt pointing out that yet another room mentioned in the commission report situated near to the shop wherein “Coimbatore Arya Vaidya Sala” is being conducted, had started business only 4 days back and that it is evident that the landlord is still letting out various rooms without occupying the same for the business purpose projected in the RCP. But as stated above, we are convinced of the fact that there exists substantial special reasons for the landlord to claim that the plaint schedule building is the most suitable premises wherein the business intended can be accommodated. Hence we are of the considered opinion that eviction sought for could not be denied on the ground RCR.290/09-B 9 contemplated under the first proviso to Section 11(3). 11. Under the above mentioned circumstances, we find no illegality, irregularity or impropriety with the findings arrived by the courts below. Accordingly the revision petition deserves no merit and the same is liable to be dismissed. 12. Sri.K. Ramachandran, learned counsel for the Revision Petitioner/landlord sought indulgence of this court in granting the tenant a further period of one year for surrendering vacant possession of the scheduled room, on the ground that abrupt stoppage of business conducted therein will seriously affect livelihood of his family. Sri.T. Krishnanunni learned senior counsel appearing for respondent landlord had vehemently opposed the prayer. Having considered the fact that a small time business of Cool Drinks and Ice cream Parlour os being conducted in the premises, as evidenced from the commission report, we are inclined to grant one year period for the tenant to surrender vacant possession of the building. But at the same time we are of the view that the present rate of rent of Rs.650/- per month which is being paid by the tenant is too low comparing with the current rate of rent prevalent in the locality. RCR.290/09-B 10 Therefore we are inclined to tentatively fix occupational charges payable during the period which is proposed to be extended for surrendering vacant possession, as Rs.1000/- per month. 13. In the result the Revision Petition is disposed of on the following terms: (i) While dismissing the revision petition the revision petitioner/tenant is granted time till 15.2.2011 to handover peaceful and vacant possession of the premises to the respondent/landlord, on condition that he shall file an affidavit before the Executing Court or the Rent Control Court, as the case may be, undertaking to handover vacant possession of the schedule premises to the landlord on or before 15.2.2011 and also undertaking to pay arrears of rent if any due within a period of one month from today. Tenant shall also undertake to make periodic payment of occupational charges @ Rs.1000/- per month from 1.3.2010 onwards till surrender of the premises. The affidavit as directed above shall be filed within a period of one month from today. The Executing Court is directed to put off delivery of the schedule premises till 16.2.2011, provided filing of the RCR.290/09-B 11 affidavit and payment of arrears of rent and occupational charges, as stipulated above, is noticed. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb