IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 RCRev..No. 142 of 2008() ------------------------ RCA.61/2006 of ADDL. DISTRICT COURT, VADAKARA RCP.32/2005 of MUNSIFF COURT, NADAPURAM .................... : APPELLANTS/RESPONDENTS: ---------------------------------------- 1. POOKKOTTUVAYIL RADHA, W/O.BALAN, 57 YEARS, SWASTHAM, VATAYAM AMSOM, NITTOOR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. POOKKOTTUVAYIL USHA, D/O.BALAN, 35 YEARS, SWASTHAM, VATAYAM AMSOM, NITTOOR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 3. POOKKOTTUVAYIL JAYASREE, D/O.BALAN, 33 YEARS, SWASTHAM, VATAYAM AMSOM, NITTOOR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 4. POOKKOTTUVAYIL SUJITH, S/O.BALAN, 31 YEARS, VATAYAM AMSOM, NITTOOR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.MOHANAN V.T.K. RESPONDENTS: RESPONDENT/PETITIONER: ----------------------------------- KURUNGODANTE PARAMBATH SANTHA, D/O.KANARAN, AGED 57 YEARS, RESIDING AT CHAMBILOREMMAL, NARIPPATTA AMSOM, CHEEKKONNUMMAL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.142 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2008. O R D E R Ramachandran Nair, J. The tenant is the revision petitioner. The landlord sought eviction under Sections 11(3) and 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act'). The Rent Control Court ordered eviction under Section 11(3) and dismissed the petition under Section 11(4) (v) of the Act. The Appellate Authority having concurred with the said order, the tenant has field this revision petition challenging the above orders. 2. The landlord of the petition schedule room obtained the same on the strength of a settlement deed executed by her father. The room was rented out to one Balan, the predecessor-in-interest of the tenants, by her father on 30.11.1973. The said Balan died on 12.12.2004. After his death, the tenants are not doing any business in the petition schedule room and thus have ceased to occupy the same from November, 2004 onwards and rent has also been kept in arrears. The bonafide need pleaded is for starting a stationery business for her son Sajeesh who is an unemployed youth. RCR 142/2008 -2- 3. The petitioners contended that after the death of their father, a few months the shop was closed down and thereafter it was reopened by engaging one K.T. Chandran. The tenants have been conducting a Barber shop in the schedule room. It was also contended that the need pleaded is not bonafide and the landlord obtained vacant possession of another shop room by projecting the bonafide need of another son of her and the said room remains vacant. 4. On an analysis of the evidence, the Rent Control Court found that the bonafide need pleaded is genuine and that the tenants are not entitled to claim the benefit under the second proviso to Section 11(3) of the Act. 5. Attacking the findings rendered by the Rent Control Court and the Appellate Authority, learned counsel for the petitioner contended that the bonafide need pleaded is not a genuine one and that the tenants actually are doing business in the Barber shop which is their sole livelihood. It is further pointed out that the order of eviction cannot be sustained in the light of the facts pleaded and evidence adduced before the Rent Control Court. 6. The authorities below accepted the bonafide need pleaded as sufficient under Section 11(3) of the Act in view of the proved circumstance that the son of the landlord is unemployed. It was observed that this need pleaded by the landlord was not specifically denied in the objections filed RCR 142/2008 -3- by the tenant. The suggestion to P.W.1 was that the son was engaged in electronics business which was denied by P.W.1. No other adverse material was brought to the notice of the Rent Control Court by the tenants. Even though while being examined as R.W.1 the first petitioner deposed about P.W.1's involvement in electronics business as well as the conduct of a private bank, during cross examination she admitted that the private bank belongs to the sister of P.W.1. Thus, practically no materials were before the Rent Control Court to accept the contention of the petitioners that the son has got other avocations in life. Therefore, on an overall assessment of the materials, the Rent Control Court was of the view that the bonafide need stands established. The Appellate Authority has also discussed the evidence both oral and documentary in detail and confirmed the said findings. Even though learned counsel for the petitioners strenuously contended that the approach made by the authorities below are not correct, we are not persuaded to take a contrary view. 7. Even though the tenants attempted to prove that the landlord is in possession of another room which was got evicted pursuant to the order in R.C.P.No.10/2005 of the Rent Control Court, Nadapuram, they could not establish by reliable evidence the availability of the said shop room at the time of filing of the present Rent Control Petition. The delivery was RCR 142/2008 -4- ordered through court on 21.10.2005 and that was to accommodate another son of the landlord who is conducting an electronics repair shop in the said premises. This is supported by Ext.A3 profession tax receipt and Ext.A4 licence. We are of the view that the said contention of the tenants was rightly rejected by the authorities below. 8. As regards the benefit of the second proviso to Section 11(3) of the Act also, there was no evidence to show that the tenants are depending solely on the income derived from the business conducted in the petition schedule shop room. The 4th petitioner herein is an Automobile Mechanic and petitioners 2 and 3 have already been given in marriage. Even though the tenants contended that they have engaged one Chandran to do the business in the petition schedule room, the report of the Commissioner showed that when she visited the shop room, it was remaining closed. The Commissioner had reported cessation of occupation of the shop room for a considerably long period. The 4th petitioner was not examined also to prove the income they get from the business conducted in the petition schedule room. Therefore, in the absence of any convincing evidence, the authorities below rendered findings against the tenants on the first limb of the second proviso to Section 11(3) of the Act. On going through the evidence, we also concur with the said view taken by the authorities below. As regards the RCR 142/2008 -5- second limb of the second proviso to Section 11(3) also, it was observed by the Appellate Authority that in the counter statement, the respondents (tenants) admitted that there are vacant shop rooms available in the locality. That plea was taken to show that the landlord can make available such rooms to accommodate her son. Thus, the tenants have failed to establish the grounds to claim the benefit of both limbs of the second proviso to Section 11(3) of the Act. 9. We find that the authorities below have assessed the evidence correctly and their view cannot be said to be so erroneous or perverse warranting interference in the exercise of revisional jurisdiction by this court. 10. At this stage, the learned counsel for the petitioner sought for some time to vacate the premises. We grant three months time from today to the petitioners to vacate the premises on condition that they file an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry of three months from today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. If any of the conditions aforesaid is violated, then the order of eviction will become RCR 142/2008 -6- enforceable at once. Subject to the above, the revision petition is dismissed, however there will be no order as to costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/