IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 RCRev..No. 77 of 2008() ----------------------- RCA.17/2003 of II ADDL. DISTRICT COURT, TRIVANDRUM RCP.32/2002 of I ADDL.M.C.,TRIVANDRUM .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER ----------------------------------------------------------------- C.VASUDEVAN, S/O CHELLAPPAN, AGED 74 YEARS, KATTIL VEEDU, KUMARAPURAM, CHERUVAKKAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: RESPONDENTS/PETITIONERS ------------------------------------ 1. SAKUNTHALA, W/O SADASIVAN, T.C.1/2066, PANAYIL PUTHEN VEEDU, THAMARA BHAGOM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 2. REMANI, D/O LATE SADASIVAN, RESIDING AT -DO- -DO-. 3. GEETHA, D/O LATE SADASIVAN, RESIDING AT -DO- -DO-. 4. LATHA, D/O LATE SADASIVAN, RESIDING AT -DO- -DO-. 5. MANIKANTAN, S/O LATE SADASIVAN, RESIDING AT -DO- -DO-. 6. KANNAN, S/O LATE SADASIVAN, RESIDING AT -DO- -DO-. 7. AJITHA, D/O LATE SADASIVAN, RESIDING AT -DO- -DO-. BY ADV. SRI.D.GANESH KUMAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- R.C.R.NO.77 OF 2008-E -------------------------------------------------------------- Dated this the 24th day of March, 2008. JUDGMENT Balakrishnan Nair, J: The revision petitioner is the tenant. The respondents are the landlords. The R.C.P was filed claiming eviction under 11(2)(b) and 11(3) of the Kerala Building Lease and Rent Control Act by the landlords. The Rent Controller allowed the application on both grounds. The tenant appealed. The appeal was also dismissed. Hence, this revision. The main ground urged by the petitioner against the appellate order is against the finding under Section 11 (3). The pleadings on that point are the following: 2. The 2nd respondent herein is a widow. She is one of the co- owners of 2.25 cents of land and a building thereon. The tenant is in occupation of a portion of the building. The balance portion is in the possession of the 2nd respondent. She is running a tuition centre else where to earn her livelihood. Now, she intends to start a business in the petition scheduled building. She knows tailoring and, therefore, proposes to start a tailoring cum readymade R.C.R.NO.77/08 . 2 garment shop. The scheduled room has been given to the 2nd respondent by other co-owners by releasing their rights in her favour. 3. The revision petitioner contested the claim under Section 11 (3) stating that the need put forward is a convenient ruse to evict him. The 2nd respondent is having sufficient means. She is running a tuition centre and earning sufficient income for her livelihood. The release deed stated to be executed in favour of the 2nd respondent is a sham document. If at all she wants to start a business, it can be done in the room in her possession in the building. The revision petitioner is conducting a ration shop. There is no other suitable building in the locality to shift the shop. 4. From the side of landlords, PW1 was examined and Exts.A1 to A5 were marked. The tenant was examined as CPW1 and Exts.B1 to B4(a) were marked from his side. As third party document, Ext.X1 was also marked. The 2nd respondent was examined as PW1. She deposed that she has studied upto B.A and she is a widow and she has no other job. She is not getting sufficient income from the tuition centre. Therefore, she wants to R.C.R.NO.77/08 . 3 start a tailoring cum readymade garment shop. Both the courts found that, in the light of the above facts, the claim made by her for the room is bonafide. We notice that it is a finding of fact which cannot be disturbed by us in this revision petition. While the tenant was examined, he deposed that he is maintaining the family from the income derived from the ration shop. But, he did not adduce any further evidence on this point. So, the appellate authority found that the 1st limb of the 2nd proviso to Section 11 (3) is against the tenant. It was also found that the tenant is having another room adjacent to the ration shop and his son is having a building which is now vacant. So, if the tenant wants to shift his ration shop, he can shift it to that building. Though the tenant examined accommodation controller, who stated that no vacancy is reported, the courts below did not act upon the said officer's evidence. It is common knowledge that the register maintained by the accommodation controller will record the vacancies, only if the same is reported to him. Normally, no landlord cares to report about the vacant buildings. 5. We are of the view that the view taken by the appellate authority on the 2nd proviso to Section 11 (3) is also a plausible R.C.R.NO.77/08 . 4 view on facts, which we cannot reverse while hearing a revision. The learned counsel for the petitioner submitted that since the 2nd respondent is already in possession of a portion of the building, her claim should have been made under Section 11(8). So the petition under Section 11(3) was not maintainable. It is common case that the 2nd respondent is not doing any business in the premises occupied by her. It is remaining vacant. If that be so, the petition is more appropriate under Section 11(3) than under Section 11(8). So, the contention of the learned counsel for the revision petitioner cannot be accepted. 6. In the result, the revision petition fails and it is dismissed. But, the learned counsel for the petitioner prayed that he may be granted some time to vacate the tenanted room. Having regard to the facts of the case, the petitioner is granted six months' time from today to vacate the scheduled room on condition that he files an unconditional undertaking in the form of an affidavit before the execution court undertaking to vacate the room within six months from today. The undertaking shall be filed by him within three weeks from today. The arrears of rent, if any remaining unpaid, shall be paid within one month from today. The R.C.R.NO.77/08 . 5 rent due from time to time shall also be paid without fail till he room is vacated. K. BALAKRISHNAN NAIR, JUDGE P.N. RAVINDRAN, JUDGE. cl