IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 RCRev..No. 211 of 2009 (A) ------------------------------- RCA.14/2008 of ADDL. DISTRICT COURT & RCAA, N. PARAVUR RCP.20/2005 of RENT CONTROLLER,ALUVA .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------- JOSEPH, AGED 88 YEARS, S/O.KURIAN, THADATHIL HOUSE, THOTTAKKATTUKARA, ALUVA, ALUVA TALUK. BY ADV. SRI.DINESH R.SHENOY RESPONDENT(S)/RESPONDENT/PETITIONER ------------------------------------------------- RAJU, S/O.POULOSE, EDASSERY HOUSE, ANGAMALY KARA, ANGAMALY VILLAGE. ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.211 of 2009 ------------------------------------------------ Dated this the 21st day of October, 2010 ORDER Gopinathan, J The Rent Control Court, Aluva, in RCP No.20/05 on a second round after remand, directed the revision petitioner to hand over possession of the petition schedule building to the respondent under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as the “Act”. The revision petitioner though preferred RCA.14/08 before the Additional Rent Control Appellate Authority, North Paravur, was not successful. Assailing the legality, correctness and propriety of the judgment in R. C. R. No.211 of 2009 -2- appeal whereby the eviction granted under Section 11(2)(b) and 11(3) by the Rent Controller was confirmed, this RCR was filed. 2. We heard Sri.Dinesh R. Shenoy, the learned counsel appearing for the revision petitioner and Sri.P.Viswanathan, the learned counsel appearing for the respondent/landlord. 3. The pleadings of the respondent as now amended is that the petition schedule building was let out to the revision petitioner on a monthly rent of Rs.1,100/- and that the rent was kept in arrears from May, 2005 and that despite the notice demanding to discharge the arrears of rent, the revision petitioner did not heed to clear the liability. It was further contended that the respondent/landlord bona fide needed the petition R. C. R. No.211 of 2009 -3- schedule building to start a Margin Free Market for which the respondent had got substantial financial resources. In addition to that the brother of the respondent also had agreed to assist the respondent financially. It was also contended that the respondent had no suitable building in his possession to meet the requirement of the respondent and that the revision petitioner who had been running a textile shop has no good business in the petition schedule building since there are so many big shops in an around the petition schedule building and that he is not depending upon the income from the petition schedule building for his livelihood and that there are suitable other vacant buildings available in the locality to meet the requirement of the revision R. C. R. No.211 of 2009 -4- petitioner. 4. During the course of the enquiry, the respondent and four others were examined as PWs.1 to 5. The son of the revision petitioner was examined as RW1. On the side of the respondent, Exts.A1 to A6 were marked. On the side of the revision petitioner Ext.B1 to B9 were marked. Two reports and sketch submitted by the Commissioner were marked as Exts.C1, C2 and C2(a). On appraisal of the evidence on record, the Rent Controller arrived at a finding that the revision petitioner had kept the rent of the building in arrears as pleaded in the petition and there is no discharge. The bona fide need urged by the respondent was also found in favour of the respondent. The benefit of the provisos to sub R. C. R. No.211 of 2009 -5- Section 3 of Section 11 was also found against the revision petitioner. In appeal, the learned Appellate Authority had analysed the evidence in detail and arrived at a finding that the evidence of the respondent regarding the arrears of rent requires no interference as there is no proof regarding the discharge pleaded by the revision petitioner. Bona fide need urged by the respondent was proved by the testimony of PW1. The revision petitioner had not adduced any evidence to prove that he was depending upon the business run in the petition schedule building for his livelihood or that no building was available in the locality to shift the business of the revision petitioner. Resultingly the Appellate Authority concurred with the Rent Controller. R. C. R. No.211 of 2009 -6- 5. Having heard the revision petitioner and the respondent we find little reason to arrive at a conclusion that the finding of facts by both the authorities below is any way erroneous or contrary to the pleadings and evidence. 6. The learned counsel for the revision petitioner submitted that earlier the Rent Controller dismissed the petition and in appeal the order dismissing the Rent Control Petition was set aside and the matter was remanded. According to the learned counsel for the revision petitioner, though the purpose of the remand was only to allow the parties to adduce evidence, in the judgment, the learned Appellate Authority had allowed the parties to amend the pleadings. According to the learned counsel, while amending R. C. R. No.211 of 2009 -7- the petition contradictory pleadings were incorporated and thus, the revision petitioner was highly prejudiced. Plea of prejudice because of the amendment of pleadings is the main argument that was advanced. We notice that the revision petitioner did not care to challenge the earlier order of the Appellate Authority remanding the matter to the Rent Controller with freedom to the parties to amend their pleadings. The order allowing the respondent to amend the pleadings was also not cared to be challenged and thus it had come final. Thereafter, the parties let in evidence. The revision petitioner had cross examined the witnesses of the respondent with reference to the further evidence adduced. The revision petitioner had also adduced additional R. C. R. No.211 of 2009 -8- evidence after remand. Therefore, now the revision petitioner cannot turn round and contend that since the Appellate Authority on an earlier occasion allowed the respondent to amend the pleadings and because of the consequent amendment the revision petitioner was any way prejudiced. We find no merit in the submission made by the learned counsel for the revision petitioner that the amendment of the petition or adducing further evidence touching the so called amendment has any way prejudiced the revision petitioner. The revision petitioner as we mentioned earlier had got opportunity to cross examine the respondent with reference to the amended pleadings and had also got opportunity to adduce further evidence touching the R. C. R. No.211 of 2009 -9- amendments made in the pleadings. So, that contention of the learned counsel for the revision petitioner regarding prejudice deserve no consideration as it is devoid of any merits. 7. The sustainability of the petition had to be considered with reference to the evidence already available on record. The learned counsel for the revision petitioner could not point out any material in the evidence of the respondent so as to disbelieve him regarding the bona fide need urged. There is little material to conclude that the respondent had any ulterior motive in advancing the bona fide need urged. There is no case for the revision petitioner that the respondent has got any building in his possession so as to meet the requirement. The respondent is now running a 'C' R. C. R. No.211 of 2009 -10- class shop in a small room adjacent to his house along the side of a pocket road. The income derived from the 'C' class shop is meagre to make both ends meet. His children are growing up and pursuing studies. He wanted to convert the room where 'C' class shop is run as a study room for his son. The petition schedule building is situated along the side of National Highway at Angamaly where there is every good chance for a good business. There is sufficient parking space. There is every chance for success in super market in the petition schedule building. On the other hand, the shop in which he is running 'C' class is too small to start a super market. There is no parking space. There is little chance for good business. Special reasons stated by the respondent is R. C. R. No.211 of 2009 -11- convincing. There is little reason to doubt about the bona fide need. 8. The revision petitioner did not care to adduce any evidence to show that he is depending on the income from the business in the petition schedule building for his livelihood. On the other hand, RW1, the son of the revision petitioner had deposed that RW1 is doing business in the petition schedule building and the revision petitioner is running Kuri business somewhere else. Adding to that the report of the Commissioner would show that vacant building is available in the locality to meet the requirement of the revision petitioner. So the revision petitioner is not entitled to the benefit of the 2nd proviso to Section 11(3). Both Authorities below well appreciated the evidence on R. C. R. No.211 of 2009 -12- record. Concurrent finding now assailed is perfectly in tune with the evidence on record. Learned counsel for the revision petitioner could not succeed to show that the findings of the Authorities below are anyway illegal, irregular, improper or erroneous so as to be interfered. In the above circumstances, we find little reason to interfere with the judgment impugned in exercise of the limited revisional powers vested on this Court under Section 20 of the Act. The Revision Petition is devoid of merit and is accordingly, dismissed. 9. The learned counsel for the revision petitioner having failed to impress us to interfere with the impugned judgment, alternatively submitted that the revision petitioner had been R. C. R. No.211 of 2009 -13- doing business for many decades and as a special case, a long time shall be granted to the revision petitioner to vacate the premises. The learned counsel requested for two years' time with a plea that the revision petitioner had to realise much amounts from some of his creditors. The learned counsel for respondent strictly opposed the demand stating that it is a baseless demand. Having heard either side, we find that it would be just and appropriate to grant one year's time from today to vacate the premises on the following conditions:- a) The revision petitioner shall file an affidavit within three weeks from today before the Rent Controller/Execution Court undertaking to vacate the premises on or before 21st October, R. C. R. No.211 of 2009 -14- 2011 without any objection. b) The revision petitioner shall clear off all arrears of rent, if any, within two weeks. c) The revision petitioner shall pay damages for occupation at the rate of Rs.2,500/- per month payable with effect from 01/11/10 till the date of delivery. 10. The failure to comply with any of the conditions would dis-entitle the revision petitioner to get extended time to vacate. In the event the revision petitioner fails to comply with any of the above conditions, the respondent is at liberty to get the order of eviction executed. In the event the revision petitioner complies with the conditions above, the Rent Controller/Execution Court shall keep the order of execution in R. C. R. No.211 of 2009 -15- abeyance till 21/10/11. There will be no order as to costs. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-