IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 RCRev..No. 129 of 2008() ------------------------ RCA.57/2004 of ADDL.DISTRICT COURT (ADHOC)-III, THALASSERY RCP.128/2002 of ADDL.MUNSIFF COURT, KANNUR .................... : APPELLANT/RESPONDENT: -------------------------------------- KALFANTAVIDA MUSTAFA, S/O.MOIDU, AGED 50 YEARS, BUSINESS, M.K.525, CHAKKARAPANDIKASALA, FISH MARKET ROAD, NEERCHAL, KANNUR 670003. BY ADV. SRI.C.K.SREEJITH RESPONDENTS: RESPONDENT/PETITIONER: ----------------------------------- M.K.AYISUMMA, D/O.ALIPPIKEYI HAJI. AGED 57 YEARS, HOUSEWIFE, VADIKKAKAM DESOM, THALASSERY AMSOM, KANNUR DIST. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12/06/2008, ALONG WITH RCR NO. 130 OF 2008 RCR NO. 131 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. Nos.129, 130 & 131 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of June, 2008. O R D E R Ramachandran Nair, J. The tenant in an application for eviction filed by the respondent/landlord is the revision petitioner herein. Eviction was sought under Sections 11(2)(b), 11(3), 11(4)(ii)and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act'). The Rent Control Court ordered eviction under Section 11(4)(iii) of the Act and disallowed the same on the other grounds. In appeal, the Appellate Authority confirmed the same and further held that the grounds for eviction under Section 11(3) have also been established. Aggrieved by the same, the tenant has filed the above revision petitions. 2. Shortly, the facts are the following: The building in question is a line building having seven separate rooms owned by the respondent. Out of the seven rooms, two smaller rooms are in the possession of the landlord, three rooms have been let out to the petitioner/tenant herein and the remaining two rooms are let out to two other tenants. The three rent control petitions are in respect of room Nos.M.K.525, M.K.526 and M.K.529 which RCP 129, 130 & 131/08 -2- have been entrusted to the tenant under three separate rent chits. The landlord wanted to start a pickle manufacturing unit by making use of the three rooms in question and two small rooms in the possession of the landlord after necessary modification. She holds a licence for conduct of the said business and there are no other suitable buildings available for her also. It is also contended that the tenant had caused damage to all the three rooms by storing heavy articles in spite of the express stipulation in the kychit against such use. 3. The tenant denied the bonafide need pleaded by the landlord. It was contended that no modification or alteration is possible for starting the business proposed by the landlord and the rooms in the possession of the landlord are sufficient to conduct the business. The tenant is using the building for doing scrap business. He is having altogether eight rooms including the three petition schedule rooms which are highly necessary for doing the business in scrap materials. The Rent Control Court found that the need pleaded is not bonafide. It was found that there was no evidence to show that she was doing the same business on an earlier period and that the rooms in her possession are not at all sufficient to accommodate the volume of business. It was held that it is only a mere desire of the landlord. It was also found that going by the first proviso to Section 11(3) of the Act, the RCP 129, 130 & 131/08 -3- landlord has not pleaded special reasons, as admittedly two rooms are available with the landlord. But the Rent Control Court found that the landlord had been successful in proving the ground under Section 11(4)(iii) of the Act. Under Section 11(4)(iii), if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village, the landlord is entitled to get an order of eviction. As the tenant had admitted that he is in occupation of five rooms apart from the petition schedule rooms, the Rent Control Court held that the eviction is liable to be ordered under Section 11(4)(iii) of the Act. 4. The Appellate Authority has considered the matter in detail. Reliance was placed upon the report of the Commissioner marked as Ext.C1 to find that some of the rooms in the possession of the tenant are remaining vacant. It was therefore found that the ground pleaded under Section 11(4)(iii) is available to the landlord. The rooms in the possession of the tenant are reasonably sufficient for his requirements. 5. As far as the bonafide need pleaded by the landlord is concerned, the Appellate Authority noted that the landlord is doing the business in pickles and jams in her house at Edakkad Panchayat which is supported by Ext.A4 licence. Even though she had not applied to the Kannur RCP 129, 130 & 131/08 -4- Municipality wherein the petition schedule building is situated, for licence, it cannot be said that her intention to start the business is not a genuine one. It was therefore held that going by her experience and in view of the fact that the two rooms in her possession are not sufficient for doing the business, she is entitled for eviction under Section 11(3). On these findings, it was held that the tenant is not entitled to rely on the first proviso to Section 11(3) of the Act. 6. We are of the view that the view taken by the Appellate Authority on this aspect is a plausible one. Here, the landlord is already conducting business in a panchayat area. She is having experience in conducting the very same business. She wants to extend the business by starting the same in the buildings in question. Merely because licence has not been applied for, that will not cut at the root of the bonafide need pleaded by her. The need pleaded cannot be termed a mere desire, but as we have already noticed, it is clearly established that the said bonafide need is a genuine one. In these circumstances, we do not find any reason to interfere with the above finding rendered by the Appellate Authority on the ground of eviction ordered under Section 11(3) of the Act. As far as the ground under Section 11(4)(iii) is concerned, it is clear that the tenant is in possession of five other rooms apart from the schedule rooms. That itself goes against the case RCP 129, 130 & 131/08 -5- pleaded by the tenant. 7. For all these reasons, we agree with the orders passed by the authorities below. At any rate, the view taken cannot be said to be so perverse warranting interference under the revisional jurisdiction of this court. It was held, in these circumstances, that the tenant is not entitled for the protection of the second proviso to Section 11(3) of the Act. 8. Learned counsel for the petitioner then pleaded for some time to vacate the premises. It was pointed out that at least six months time may be granted in the facts and circumstances of the case. We grant two months time from today to the petitioner to vacate the premises on condition that he files 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 two 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 RCP 129, 130 & 131/08 -6- enforceable at once. Subject to the above, the revision petitions are dismissed, however no costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/