IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 RCRev..No. 232 of 2008() ------------------------ RCA.167/2006 of D.C. & SESSIONS COURT,KOZHIKODE RCP.120/2005 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS -------------------- 1. D.V.UMMER KOYA, 53 YEARS,S/O.SV.MOOSA KOYA, 12/178, BIG BAZAR, CALICUT-1. 2. D.V.IMBICHAYISHABI, 88 YEARS, W/O.MOOSA KOYA HAJI, VALIYAKAM HOUSE, HALWA BAZAR, CALICUT-1. 3. K.IMBICHAMINABI, 66 YEARS, W/O.LATE K.MAMMED KOYA, SOUTH KARIMADAM, TRIKOVIL LANE KUTTICHIRA, CALICUT-1. 4. K.MUSTAFA, 46 YEARS, S/O.LATE K.MAMMED KOYA, DO.DO. 5. K.RAFEEK, 44 YEARS,S/O.K.K.MAMMED KOYA, DO.DO. 6. K.ALI KOYA, 42 YEARS, S/O.MAMMED KOYA DO.DO. 7. K.KADEEJA, 41 YEARS, D/O.K.MAMMED KOYA, DO.DO. 8. K.FOYSIYA, 37 YEARS, D/O.K.MAMMED KOYA, DO.DO. 9. K.TAHIRA, 37 YEARS, D/O.K.MAMMED KOYA. DO.DO. RCR.No.232/08 10. D.V.IMBICHIPATHUMMABI, 71 YEARS D/O.LATE S.V.MOOSA KOYA HAJI, DOOSA VEEDU IDIYANGARA ROAD, CALICUT-1. 11. D.V.AYISHABI, 67 YEARS, D/O.S.V.MOOSA KOYA HAJI, VALIYAKULAM HOUSE, HALWA BAZAR, CALICUT-1. 12. D.V.MARIYAMBI, 63 YEARS, D/O.S.V.MOOSA KOYA HAJI, THOPPIL HOUSE, CHAKKUMKADAVU, PO.KALLAI, CALICUT-3. 13. D.V.KADEESABI, 61 YEARS, D/O.S.V.MOOSA KOYA HAJI, VALIYAKAM, MUTHALAKULAM, CALICUT-4. 14. D.V.IMBICHAMINABI, 59 YEARS, D/O.S.V.MOOSA KOYA HAJI, THAMBURAN ROAD, NADUVATTOM, BEYPORE. 15. D.V.SAINABI, 54 YEARS, VALIYAKAM HOUSE HALWA BAZAR, CALICUT-1. 16. D.V.UMMUKULSU, 47 YEARS VALIYAKAM HOUSE HALWA BAZAR, CALICUT-1. BY ADV. SRI.A.A.ABUL HASSAN RESPONDENT(S): --------------- TRIBHU VASUDEVAN, 47 YEARS S/O.LATE A.VASUDEVAN, SREEVIDHYA U.K.S.ROAD, KOZHIKODE-1. ADV. SRI.A.SUDHI VASUDEVAN SMT.K.PUSHPAVATHI THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.232 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of January, 2009 ORDER Pius.C.Kuriakose, J. The defeated tenant who has suffered orders of eviction on the grounds under Section 11(3) and 11(4)(3) concurrently at the hands of the rent control court and the appellate authority is the revision petitioner. The landlord's case in the context of the ground under Section 11(3) was that he is presently working in Dubai as IT manager and that on coming to know that there is considerable scope for running a software business in Calicut he decided to start such a business in the petition schedule building. According to him, he bonafide needs the building for his own occupation for the purpose of starting the aforesaid business under the name and style “Rainbow Software and Consulting”. He averred that he will develop a strong client base remaining in Dubai for a while. He would interview the clients in Dubai for ascertaining their hardware and software requirements. For the time being, he will develop the software in Dubai. But the coding RCR.No.232/08 2 will be done by the staff at the office to be commenced in the petition schedule room. He intends to come back to Calicut and will settle down here and at that time he would have shifted his entire business over to the schedule room. The above ground was resisted by the revision petitioner tenant contending that the landlord has so many other buildings in his possession in Calicut city and hence the petition is liable to be dismissed in view of the first proviso to Section 11(3). It was also contended that the petition schedule building is situated in Big Bazar where the entire business is in grocery items. It is contended that the petition schedule building is not suitable for the commencement and conduct of IT based business. The bonafides of the claim and need were challenged and it was urged that the real motive behind instituting the RCP is to pressurise the tenant to pay enhanced rent. 2. The case of the landlord in the context of ground under section 11(4)(3) was that the first revision petitioner ( the first respondent in the RCP) has acquired possession and ownership of a building having door No. 9/238 at Marikkar Lane in Big Bazar itself RCR.No.232/08 3 and that he is conducting business in that building under the name and style of “Manar Agencies” It was avered that the building having door No. 9/233 is reasonably sufficient for the requirements of the revision petitioners tenants. The above ground was resisted by the revision petitioners contending that the RCP in so far as it is instituted on the ground under Section 11(4)(3) is barred by res judicata as envisaged by Section 15 of the Rent Control Act in view of the earlier orders dismissing RCP 27/1975 which was instituted for eviction on the same ground. It was also contended that the said building is not at all sufficient for the requirements of the tenants. Even though eviction was sought for on various other grounds also, the rent control court on evaluating the evidence adduced by the parties became inclined to order eviction only under Section 11(3) and 11(4)(3). In this RCR also we are concerned with the correctness of orders of eviction passed under Section 11(3) and 11(4)(3) only and hence it is unnecessary to refer to the pleadings of the parties in the context of the other grounds which no longer survive. 3. The rent control appellate authority considered the appeal RCR.No.232/08 4 preferred by the revision petitioners, made a de novo re-apprisal of the entire evidence on record and concurred with the findings of the rent control court and accordingly dismissed the appeals. 4. We have heard the submissions of Sri.A.A.Abul Hassan, learned counsel for the revision petitioner and those of Sri.Sudhi Vasudevan, learned counsel for the respondent landlord. Sri.Hassan argued that the claim for bonafide occupation for the conduct of business in IT implicitly lacks in bonafides in view of the fact that the schedule building is absolutely unsuitable for the conduct of the sophisticated business in IT. The learned counsel highlighted that the building was a dilapidated building in Big Bazar where only business in grocery items is being conducted. IT business according to the learned counsel requires a serene atmosphere and the petitioner has got a very spacious residential building presently not occupied by him which can be conveniently and ideally used for conducting the sophisticated business which he claims to be desirous of conducting in the schedule building. Sri.Hassan argued that it is an absolute bar which is created by Section 15 of the Rent Control Act, though RCR.No.232/08 5 principles of res judicata and constructive re judicata as known to regular civil law may not be applicable. The bar under Section 15 according to Sri.Hassan is of wider scope than the bar under Section 11 CPC. On the merits, he argued that the building pointed out by the landlord in the context of Section 11(4)(3) was only a godown building and the board of Manar Agencies had to be installed in that building in view of the insistence of principals of that business that the conduct and that business should be in an exclusive building. 5. The submissions of Sri.A.A.Abul Hassan were resisted by Sri.Sudhi Vasudevan who reminded us of the contours of our jurisdiction under Section 20 of Act 2 of 1965. Learned counsel submitted that this court is not expected to make a de novo re-apprisal of the evidence. The finding entered by the authorities below according to the learned counsel are based on evidence and being reasonable findings there is no warrant for interfering with those findings. Under Section 20, this court is concerned only with legality, propriety of the orders passed by the appellate authority, counsel argued. The learned counsel would answer the argument based on RCR.No.232/08 6 Section 15 by pointing out that there has been change of circumstances since the time when the earlier RCP was instituted and disposed of. The alternate building pointed out by the landlord was used as godown only at that time. But presently the documentary evidence will show that the building is being used for carrying out business. As for the arguments raised by Sri.Abul Hassan in the context of big bazar, Sri.Sudhi Vasudevan would submit that the schedule building is the only building belonging to the landlord in which he can conduct business. He has no other choice. The residential building cannot be utilised for commercial purpose and at any rate that building is already let out and is presently in the occupation of a tenant. 6. We have anxiously considered the rival submissions addressed at the Bar. We have gone through the order of the rent control court and the judgment of the rent control appellate authority. Having regard to the contours of our jurisdiction under Section 20, we do not find any warrant for interfering with the decision concurrently taken by the authorities below. It is not disputed that the petitioner is an IT professional. It is not contended that he is permanently settled RCR.No.232/08 7 down in Dubai. Petitioner has his roots in Calicut and when he says that he desires to come back to Calicut and do business in Calicut by starting business in a small way in the schedule building and then to expand the business and finally settle down in Calicut, we do not find any reason to doubt the bonafides of the claim. The findings of the rent control court and the appellate authoirty in this regard are reasonable findings based on evidence. Even though the benefit of second proviso was claimed by the revision petitioners, they were unsuccessful in substantiating that either of the ingredients of the second proviso to Section 11(3) is satisfied in their case. 7. As for the order under section 11(4)(3), we find that it is not seriously disputed that the first petitioner has ownership and possession and the other petitioners are having possession of the building pointed out by the landlord. What is disputed is only the averment of the landlord that the revision petitioners are carrying on business in that building. Once it is shown that the tenant is possessed of another building, then it is for the tenant to adduce cogent evidence to substantiate his contention that that building is not sufficient for his RCR.No.232/08 8 requirements. We do not find any convincing evidence having been let out by the petitioner in that context. We find that the tenants are in possession of the building in which going by all records relating to the business of Manar Agencies, the business is carried on in that building. In the absence of any evidence to show that that building is not sufficient for the requirement of the petitioner to carry on the business in the schedule building, the courts below were justified in ordering eviction under Section 11(4) (III) also. 8. As his last submission, Sri.Hassan requested for grant of one year's time to vacate. Sri.Sudhi Vasudevan would oppose the request tooth and nail. According to him there is no justification for granting anything more than four months time. Having considered the totality of circumstances which attend on this case, we are of the view that there is justification for granting six months time. 9. Accordingly, the RCR will stand dismissed, without any order as to costs. The execution court will put off execution of the order of eviction till 15/07/2009 on condition that : 1) the revision petitioners file undertakings in the form of RCR.No.232/08 9 affidavits before the execution court within one month from today stating unconditionally that they will give peaceful surrender of the petition schedule building to the respondent on or before 15/07/2009. 2) The revision petitioners will pay to the respondent the entire arrears of rent which has fallen due in respect of the schedule building within one month from today and will continue to pay the rent which falls due till they surrenders the building without fail. 3) If the revision petitioners default either of the above conditions, it will be open to the respondent to levy execution of the eviction orders, under which contingency, the execution court will facilitate execution and effect delivery of the schedule building to the respondent at the earliest. PIUS.C.KURIAKOSE JUDGE M.C.HARI RANI JUDGE sv. RCR.No.232/08 10