IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 RCRev..No. 231 of 2009() ------------------------ RCA.18/2006 of ADDL. DISTRICT COURT, PARAVUR RCP.16/2005 of MUNSIFF COURT,ALUVA .................... REVISION PETITIONERS/ADDITIONAL APPELLANTS: --------------------------------------------------------------- 1. BHAVANI, AGED 68 YEARS, W/O.RAMAKRISHNAN, PANTHALAKKAL HOUSE, WARD NO.VI, ALUVA MUNICIPALITY, ALUVA KARA, ALUVA WEST VILLAGE. ALUVA TALUK. 2. RAJAM.P.R., AGED 48 YEARS, W/O.CHANDRAN, PANTHALAKKAL HOUSE, WARD NO.VI, ALUVA MUNICIPALITY, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 3. AJITH KUMAR.P.R., AGED 45 YEARS, S/O.RAMAKRISHNAN, PANTHALAKKAL HOUSE, WARD NO.VI, ALUVA MUNICIPALITY, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 4. SHIBU P.R., S/O.RAMAKRISHNAN PANTHALAKKAL HOUSE, WARD NO.VI, ALUVA MUNICIPALITY, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 5. SHYAMJIRAM P.R., AGED 37 YEARS, S/O.RAMAKRISHNAN, PANTHALAKKAL HOUSE, WARD VI, ALUVA MUNICIPALITY, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 6. AMBILI P.R., AGED 35 YEARS, W/O.SAJEEV, PANTHALAKKAL HOUSE, WARD NO.VI, ALUVA MUNICIPALITY, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. BY ADV. SRI.KURIAN ANTONY EDASSERY SMT.ANN EMIL JOSEPH SRI.BOSE K.THACHIL RESPONDENT(S):/RESPONDENTS/ PETITIONERS: --------------------------- 1. ASHOKAN, AGED 51 YEARS, S/O.KARUNAKARAN PILLAI, PARAKKATTU, RESIDING AT PADMALAYAM, KAPRASSERY KARA, CHENGAMANADU VILLAGE, ALUVA TALUK. 2. AJAYAN, AGED 48 YEARS, S/O.KARUNAKARAN PILLAI, PARAKKATTU, RESIDING AT PADMALAYAM, KAPRASSERYKARA, CHENGAMANADU VILLAGE, ALUVA TALUK. 3. MANOJKUMAR, AGED 43 YEARS, S/O.KARUNAKARAN PILLAI, PARAKKATTU RESIDING AT PADMALAYAM, KAPRASSERY KARA, CHENGAMANADU VILLAGE, ALUVA TALUK. BY SRI.K.SASIKUMAR ( CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No.231 OF 2009 ------------------------ Dated this the 20th day of October, 2009 O R D E R Surendra Mohan, J. This is a tenants' revision against concurrent orders of eviction passed by the authorities below. 2. The Rent Control Petition was filed by the respondents/landlords seeking eviction of the petition schedule shop room alleging grounds under Section 11 (3) and 11 (4) (iii) of the Kerala Buildings (Lease & Rent Control) Act 1965 (hereinafter referred to as the 'Act' for short). The scheduled shop room is situate on the south western corner of a property having an extent of 2.58 Ares owned by the respondents/landlords. In the property there was already a three storied building constructed by the respondents. The petition scheduled premises was taken on lease by the revision petitioners/tenants for conducting a business in Pooja articles, country medicines, etc. on a monthly rent of Rs.40/-. The three storied building constructed by the respondents/landlords in the said property is being used by the landlords for conducting a RCR.No.231/2009 2 computer centre. The petition schedule shop room is situate in front of the three storied building. The landlords contended that the building, in which the petition schedule premises is located, has to be demolished to provide parking space for the newly constructed three storied building, since there was no sufficient parking facility for the same. It was also alleged that the tenants were in possession of another room immediately on the southern side of the temple road where they were conducting the very same business that was being conducted in the petition schedule premises on a larger scale. It was further alleged that the tenants had purchased three cents of land a little away from the petition schedule premises, where they had constructed a two storied building with shop rooms on the ground floor. The tenants were alleged to be residing on the first floor of the said building. Therefore, it was contended that the said rooms were sufficient for shifting the business of the tenant. 2. The need put forth by the landlords was disputed by the tenants. According to the tenants, they had taken the shop room on rent about 40 years ago from one Bakery Moosa. Since then they had been in continuous occupation of the premises RCR.No.231/2009 3 and paying the rent in respect of the premises regularly. They disputed the need on the ground that the same was not bona fide. According to them, there was already sufficient space for parking vehicles in the approved plan that was produced. The tenants contended that the RCP was filed solely for the purpose of harassing them. The Rent Control Petition was tried on the above pleadings. The evidence in the case consists of the oral testimonies of PWs1 and2 and Exts.A1 to A5 documents on the side of the landlords and the oral testimonies of RW1 and Ext.B1 document on the side of the tenants. The commission report and sketch are marked as Exts.C1 and C1(a). 3. The trial court after considering the contentions of the parties and the evidence on record found that the Rent Control Petition was maintainable and that the need that was alleged by the landlords was bona fide and genuine. On the question of the ground under Section 11(4) (iii), the court found that the ground had not been established. It was also found that the tenants were not entitled to the protection of first proviso to Section 11 (3) of the Act. 4. The order of the Rent Control Court was challenged by RCR.No.231/2009 4 the revision petitioners before the Rent Control Appellate Authority, North Paravur, by filing R.C.A. No. 18/2006 against the same. On an elaborate consideration of the evidence afresh, the Rent Control Appellate Authority confirmed the findings of the Rent Control Court. The findings of the Authorities below are assailed by the petitioners/tenants before us. 5. According to the learned counsel for the revision petitioners, the Rent Control Petition was not maintainable in view of the fact that the same was hit by Section 15 of the Act. It is contended that there was an earlier Rent Control Petition filed by the landlords seeking eviction of the petition schedule premises alleging that they needed the space occupied by the petition schedule building for the purpose of parking lorries. For that purpose, RCP No.7/1985 had been filed by the landlords which according to the tenants, had been dismissed. Therefore it is contended that the dismissal of the said petition bars the present Rent Control Petition. This is especially so in view of the fact that the need alleged in the present Rent Control Petition is also for providing parking space for the building of the respondent, it is contended. It is further pointed out that the RCR.No.231/2009 5 tenants had been in occupation of the petition schedule premises for the past more than 40 years and that there was no necessity for demolishing the building of which the said room is a part. It is contended that Ext.B1 plan was sanctioned in the year 2002 and that the landlords were aware that the building had to be demolished for the purpose of construction of the new building. Therefore, it is contended that a petition under Section 11 (4) (iv) should have been filed instead of a petition under Section 11 (3). 6. The contentions of the learned counsel for the tenants are resisted by the counsel for the landlords. According to the counsel, the earlier proceedings had terminated more than 20 years before the filing of the present petition and during the intervening period, there has been substantial change of circumstances justifying the filing of the present Rent Control Petition. Therefore, the petition was not hit by Section 15 of the Act. 7. We have heard the submissions of the learned counsel for the revision petitioner Sri.Kurian Antony Edassery and Sri.K.Sasikumar, learned counsel for the caveator. We have RCR.No.231/2009 6 anxiously considered the contentions put forward by the respective counsel. It is brought to our notice that construction of the respondents'/landlords' building has been done in accordance with Ext.B1 plan which has been got sanctioned in the year 2002. The earlier Rent Control Petition was of the year 1985. The present Rent Control Petition is of the year 2005. Therefore, there has been an intervening period of 20 years between the two rent control proceedings. It is true that the earlier rent control proceedings were initiated on the ground that space was required for parking lorries that were frequenting the godown of the landlords. However, the present building was not in existence at that time. The present building has been constructed only in the year 2002, which is a subsequent event and an important change in the circumstances that were existing at the time of filing the earlier RCP. It is to provide parking space for the building that has been constructed in the year 2002 that the landlords want to demolish the old building of which the tenanted premises is a part. The need cannot be said to have been in the contemplation of the landlords in the year 1985 when the earlier RCP was filed. Therefore, it cannot be RCR.No.231/2009 7 disputed that there has been a change of circumstances after the dismissal of the earlier Rent Control Petition. Consequently, Section 15 of the Act is not attracted in the present case. 8. Ext.B1 plan shows that the space occupied by the building of which the petition schedule premises is a part has been shown as the parking area for the newly constructed building. Therefore, it is clear that the space occupied by the said building is required by the landlord for the purpose of providing parking facility as per the approved plan. It is also to be noted that Ext.B1 stipulates demolition of the petition schedule premises as a condition for sanctioning the plan. In view of the above, the bonafides of the need that is put forward by the landlords cannot be doubted. We are not inclined to interfere with the concurrent findings of the authorities below on this aspect. On the question of grant of protection of the first proviso to Section 11 (3) to the tenants also, we do not find any ground to interfere with the concurrent findings of the authorities below. Therefore, we confirm the orders of eviction passed by the authorities below. 9. As his last request, the counsel for the revision RCR.No.231/2009 8 petitioners pleaded for the grant of one year's time for vacating the premises occupied by the tenants. The prayer for the grant of one year time is stiffly opposed by the learned counsel for the landlords. Considering the long period of occupation of the premises by the tenants, we feel that time could be granted to the tenants for vacating the premises up to 30/6/2010 subject to appropriate conditions. 10. The result is as follows: The Rent Control Revision is dismissed confirming the orders of the Authorities below. However, the tenants shall be granted time upto 30/6/2010 to surrender vacant possession of the premises to the landlords subject to the following conditions; i). The tenants shall file an affidavit before the Execution Court within a period of one month from today unconditionally undertaking to surrender vacant possession of the tenanted premises to the landlords on or before 30/6/2010. RCR.No.231/2009 9 ii). The tenants shall pay all arrears of rent due in respect of the tenanted premises to the landlords and shall continue to pay rent in respect of premises at the contracted rate till the vacant possession thereof is surrendered to the landlords. Iii). The landlords shall be free to execute the order of eviction granted in the event of default on the part of the tenants of any of the above conditions. In the circumstances of the case, there will be no order as to costs. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk