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 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 RCRev..No. 344 of 2010() ------------------------ RCA.86/2008 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.108/2007 of RENT CONTROL COURT, KOZHIKODE-I .................... PETITIONERS/APPELLANTS/RESPONDENTS ------------------------------------------------------ 1. THAYYIL VISALAKSHI, AGED 58 YEARS, W/O.THAYYIL CHANDRAN, 'CHANDRAKANTHAM', KRISHNAPOYIL, P.O.MEDICAL COLLEGE, KOVOOR AMSOM, DESOM, KOZHIKODE. 2. THAYYIL JYOTHISH KUMAR, AGED 38 YEARS, S/O.THAYYIL CHANDRAN, 'CHANDRAKANTHAM', KRISHNAPOYIL, P.O.MEDICAL COLLEGE, KOVOOR AMSOM, DESOM, KOZHIKODE. 3. THAYYIL JISHA, AGED 35 YEARS, D/O.THAYYIL CHANDRAN, 'CHANDRAKANTHAM', KRISHNAPOYIL, P.O.MEDICAL COLLEGE, KOVOOR AMSOM, DESOM, KOZHIKODE. 4. THAYYIL JITHESH, AGED 31 YEARS, S/O.THAYYIL CHANDRAN, 'CHANDRAKANTHAM', KRISHNAPOYIL, P.O.MEDICAL COLLEGE, KOVOOR AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.SAKIR.K.H. RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. M/S.SWARGA LODGE, SITUATED AT KOVOOR AMSOM DESOM, KOZHIKODE TALUK, PIN 673 008, REPRESENTED BY ITS PARTNERS. 2. EDAKKOTH SURESH BABU, AGED 56 YEARS, S/O.EDAKKOTH KUTTAPPAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK, PIN 673 008. 3. MOHANAN, AGED 54 YEARS, S/O.EDAKKOTH KUTTAPPAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK, PIN- 673 008. 4. KISHOR KUMAR, AGED 48 YEARS, S/O.EDAKKOTH KUTTAPPAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK, PIN- 673 008. 5. SANDEEP, AGED 39 YEARS, REPRESENTED BY THE POWER OF ATTORNEY HOLDER E.SURESH BABU, AGED 56 YEARS, S/O.EDAKKOTH KUTTAPPAN, PANNIYANKARA AMSOM, DESOM,KOZHIKODE TALUK, PIN- 673 008. ADV. SRI. B.KRISHNAN & PARTHASARATHY FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No.344 OF 2010 ------------------------ Dated this the 4th day of November, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the tenants under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of eviction which was passed by the Rent Control Court on the grounds of arrears of rent under Section 11(2)(b), bona fide need for own occupation under Section 11(3) and the ground that the tenants have used the building in such a manner as to reduce the value and utility of the building materially and permanently under Section 11(4)(iv). 2. As for the order of eviction passed on the ground of arrears of rent, the only submission made before us by Sri.K.H.Sakir, learned counsel for the revision petitioners, is that almost the entire arrears of rent found by the rent control RCR.No.344/2010 2 court is already deposited. But, the learned counsel conceded that the order of eviction under Section 11(2)(b) was not yet to be formally vacated. Under the above circumstances, we confirm that order giving to the revision petitioners two months' time from today to make further deposits, if necessary, and file an application under Section 11(2)(c) before the Rent Control Court for getting that order vacated. 3. The case of the landlords under sub section (3) of Section 11 was that PW1, who is one of the partners of the landlord firm, is without any job or avocation and that he wants to conduct hotel business in the petition schedule premises, wherein presently the tenants are conducting the very same business. The bona fides of the above need was disputed. It was contended that PW1 is already having other business. It was contended that the landlord firm is having other buildings elsewhere. It was also contended that at any rate the rent control petition is liable to fail by virtue of the first and second provisos to sub section (3) of Section 11. The allegation of the landlords in the context of ground under section 11(4)(ii) was that on account of misuser of the building by the tenants, the RCR.No.344/2010 3 value and utility of the building has become reduced materially and permanently. This allegation was also strongly disputed by the tenants, who contended that the present unsatisfactory state of the building is due to failure on the part of the landlords to attend to periodical repairs and maintenance. The Rent control Court conducted enquiry and at trial, the evidence consisted of Exts.A1 to A7, Ext.C1 commission report and testimonies of PW1 and RW1. As already stated, PW1 was the partner of the landlord firm for whose need the building was sought to be vacated. The evidence of PW1 inspired the rent control court. In fact, RW1 himself stated before the Rent Control Court that PW1 does not have any job or avocation unlike the other partners of the firm, who were otherwise well placed in life. The Rent Control Court noticed that the landlord firm was having vacant possession of the up stair portion of the multi storied building, the ground floor portion of which is the petition schedule building. The learned rent control court rightly found that the landlord firm has special reason for insisting on getting possession of the petition schedule building, which is ideal even according to the tenants for conducting hotel RCR.No.344/2010 4 business. Coming to the second proviso to sub section(3) of Section 11, the rent control court found on the basis of the evidence that the tenants were unsuccessful in showing that they satisfy either of the two ingredients of the said proviso. As regards the ground under Section 11(4)(ii), the rent control court relied on Ext.C1 commission report and also RW1's own admission regarding the unsatisfactory nature of the building. The court found that on account of the user of the petition schedule building in the present manner by the tenants, the situation was that the landlord firm was even unable to occupy a few rooms in the larger building belonging to the landlords. It was also found that the value and utility of the petition schedule building from the landlords' point of view has become materially and permanently reduced. 4. In this revision various grounds are raised challenging the findings of the learned appellate authority and Sri.K.H.Sakir, learned counsel for the revision petitioners addressed very strenuous arguments before us on the basis of those grounds. The submissions of Mr.Sakir notwithstanding, having scanned the judgment of the appellate authority we find that the findings RCR.No.344/2010 5 entered therein in confirmation of the similar findings entered by the rent control court that the need is bona fide, that the rent control petition is not liable to fail by virtue of the first proviso to section 11 (3), that the tenants have not established their eligibility for protection of the second proviso , that the tenants used the building in such a manner as to reduce the value and utility of the building materially and permanently are all findings entered on the basis of the legal evidence available on record. According to us, those are reasonable findings. As they are reasonable findings entered on the basis of the evidence, it is difficult for us to accept the argument of Mr.Sakir that there is warrant for invocation of revisional jurisdiction under section 20 of Act 2 of 1965. The revision necessarily has to fail. Accordingly, we dismiss the revision confirming the judgment of the appellate authority. 5. As a last plea, Mr.Sakir requested that at least one year's time be granted to the revision petitioners for surrendering the premises. We are not inclined to grant so much of time. However, we are inclined to grant six months' time from today for surrendering the premises subject to certain RCR.No.344/2010 6 conditions. 6. The result of the above discussion is as follows; i). The execution Court is directed to keep in abeyance proceedings for delivery of the building to the landlord firm for a period of six months from today subject to the following conditions; The revision petitioners tenants shall file an affidavit before the Execution Court undertaking to discharge the entire arrears of rent if any within one month and undertaking further to give peaceful surrender of the petition schedule building to the respondent landlord on or before 5/5/2011 and occupational charges at the current rent rate of Rs.750/- will also be paid without fail till actual surrender is made. ii). The affidavits as directed above shall be filed within three weeks from today. Iii). If affidavit is not filed and undertakings in the affidavit are not honoured, it will be open to the landlord firm to levy execution forthwith. We make it clear that the the revision petitioners will have two months time from today for getting the eviction order RCR.No.344/2010 7 under section 11 (2)(b) vacated under section 11(2)(c). PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk