IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 RCRev..No. 383 of 2010() ------------------------ RCA.45/2004 of RENT CONTROL APPELLATE AUTHORITY THRISSUR RCP.36/2000 of PRL.MUNSIFF COURT,THRISSUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT/RESPONDENT: ------------------------------------------------------------- T.A.SULAIMAN, S/O.ABDUL RAHMAN, THEKKINIMADATHIL HOUSE, PERINGOTTUKKARA P.O., THANNYAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.T.C.SURESH MENON RESPONDENT(S): APPELLANT/PETITIONER: ------------------------------------ AMINABI, W/O.O.B.MUHAMMED ALI, OLAVAKKOT HOUSE, VADAKKUMMURI DESOM, VADAKKUMURI P.O., THRISSUR TALUK, THRISSUR DISTRICT.680001 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 383 OF 2010 ------------------------ Dated this the 6th day of December, 2010 O R D E R Gopinathan, J. The revision petitioner is the tenant/respondent in RCP No.36/2000 on the file of the Rent Control Court, Thrissur. The respondent herein instituted the above petition seeking order of eviction under section 11(2)(b), 11(3), 11(4)(ii) and 11(8) of the Kerala Buildings (Lease & Rent Control) Act (hereinafter referred to as 'the Act' for short). The respondent contended that the rent of the petition schedule building @ Rs.500/- per month was kept in arrears and despite the demand notice, the arrears of rent was not cleared. It was further contended that the respondent had been running a shop by name and style “Favourite shoppe” in an adjacent room and that the RCR.No.383/2010 2 petition schedule building is situated near the Government High School and that the respondent proposed to expand the business by converting the petition schedule building along with another room to a general store -cum- Ice- cream Parlour for which purpose the petition schedule building is bona fide needed and that the respondent had no other suitable building in his possession in the locality and that the revision petitioner had caused damages, so that the value and utility of the petition schedule building was reduced permanently and materially. 2. The revision petitioner denied the arrears of rent, the need for additional accommodation, the bona fides of the need and also denied the damages caused to the petition schedule building. 3. During the course of the enquiry, on the side of the respondent, Pws 1 to 3 were examined. The revision petitioner was examined as RW1. Exts.A1 to A5 were marked on the side of the respondent. On the side of the RCR.No.383/2010 3 revision petitioner, Exts.B1 to B14 were marked. Exts.C1 & C2 reports and Ext.C1(a) sketch were also marked. 4. The Rent Control Court on appraisal of the evidence allowed the petition in part and the revision petitioner was directed to put the respondent in possession of the petition schedule building under section 11 (2)(b) and 11 (8) of the Act. Eviction sought under Section 11(3) and 11 (4)(ii) was declined. 5. Being aggrieved by the order of eviction, the revision petitioner preferred an appeal as RCA NO.55/2004 before the Rent Control Appellate Authority. Assailing the order declining eviction sought under Section 11(3) and Section 11 (4)(ii), the respondent preferred cross objection. The rent control appellate authority on reappraisal of the evidence on record arrived at a finding that in addition to the eviction granted under Section 11 (2)(b) and 11 (8), the respondent is entitled to order of eviction under Section 11 (4)(ii) also. Consequently, while dismissing the appeal, RCR.No.383/2010 4 the cross objection was allowed in part. Assailing the legality, correctness and propriety of the above judgment, this revision petition was preferred under Section 20 of the Act. 6. We heard Sri. T.C.Suresh Menon, learned counsel for the revision petitioner and perused the judgment impugned as well as the order of the trial court. The learned counsel for the revision petitioner submitted that the arrears of rent was already deposited. However, it remains a fact that the revision petitioner did not discharge the arrears of rent within the time stipulated in the notice. Therefore, the order of eviction under section 11(2)(b) is perfectly correct. In the event the revision petitioner had deposited the arrears of rent, he can get the order of eviction under Section 11 (2)(b) vacated by filing a petition under Section 11 (2)(c). We find no reason to interfere with the order of eviction granted under Section 11 (2)(b) . 7. As regards the eviction sought under Section 11 RCR.No.383/2010 5 (8), the learned counsel submitted that the respondent had two other rooms and it was subsequently demolished. According to the learned counsel, that conduct tell tales lack of bona fides. Going by the evidence on record, it is seen that those two rooms were constructed without obtaining sanction from the local authority. The building was not assessed and there was no electric connection. So the respondent was not in a position to use those buildings. Therefore, the demolition of those two rooms constructed unauthorisedly would not be a reason to doubt the bona fides of the respondent. Sometimes, the retention of those buildings may attract penal action against the respondent at the hands of the local authority. The fact that the respondent had been running a business in the building in her possession is not disputed. Regarding the intention to expand the business by converting the present business into a general store & Ice cream parlor there is supporting evidence which was meticulously considered by the fact RCR.No.383/2010 6 finding authorities and arrived the findings in favour of the respondent. Going by the judgment impugned as well as the order of the trial court, we find no reason to interfere with the finding of fact by the authorities concurrently. The learned counsel for the revision petitioner could not point out any illegality, irregularity or impropriety committed by the authorities below in appraising the evidence on record regarding the bona fides of the additional accommodation sought for. The comparative hardship that the revision petitioner has to suffer in the event of eviction was also meticulously considered by the authorities below. Appellate authority had noticed that the revision petitioner has no case that no suitable building is available in the locality . So, it is to be presumed that the revision petitioner can shift to another building. So there is no chance for any hardship to the revision petitioner. We find no reason to interfere with that finding of the appellate authority. RCR.No.383/2010 7 8. In the light of the above findings regarding the eviction granted under Section 11(8), we find that the order of eviction under Section 11 (4)(ii) is not very significant However, we have gone through the findings of the appellate authority regarding the eviction under Section 11 (4)(ii). It is seen that the petitioner had demolished the portion of the wall and roof of the building. It is revealed that the petition schedule building was obtained by lease for running stationery business and instead of that he started hotel by erecting smoke pipe. To erect smoke pipe, a portion of the building was demolished. Because of the erection of the smoke pipe, the nature of the building itself was changed. The appellant is quite justified in stating that the utility of the building was permanently and materially reduced. An additional window was also put by the tenant. The commissioner had noticed lengthy cracks over the wall near the smoke pipe and the newly put up window. Thus damages reducing the value of the building RCR.No.383/2010 8 was also caused. In the above circumstance, we find that the eviction granted under Section 11 (4)(ii) by the appellate authority is also in tune with the evidence and require no interference. 9. In the result, the revision petition fails and accordingly it is dismissed. 10. The learned counsel for the revision petitioner, having failed to impress us to admit the revision petition, sought for 10 months time to vacate the premises. Having heard the learned counsel, we find that it would be just and proper to grant time till 30/9/2011 on the following conditions; i). The revision petitioner shall file an affidavit before the Eent Control Court/Execution Court as the case may be within three weeks undertaking to vacate the premises on or before 30/9/2011 without raising any RCR.No.383/2010 9 objection. ii). The arrears of rent, if any, shall be discharged with one month from today. iii). The revision petitioner shall continue to pay occupational charges at the rate of Rs.600/- per month with effect from 1/1/2011 till the premises are vacated. iv). In the event the revision petitioner files the affidavit as above and honours the undertaking, the rent control court/execution court shall keep the order of eviction in abeyance till 30/9/2011. In the event of failure to comply with any of the conditions, the respondent is at liberty to get the order of eviction executed. RCR.No.383/2010 10 11. The learned counsel for the revision petitioner submitted that the revision petitioner had made deposit of Rs.20,000/- at the time of lease and that he is entitled to get it back. In the event the petitioner had made any deposit, he can make request to the Execution Court to settle the dispute amicably. In the event the execution court cannot arrive at a settlement regarding the so called dispute, the revision petitioner is relegated to seek appropriate remedies in appropriate forum. No order as to costs. If the revision petitioner so choses he is at liberty to apply under section 11 (2)(c) within one month from today to get the order of eviction under section 11(2)(b) vacated. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk