IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 RCRev..No. 366 of 2010(B) ------------------------------ RCA.10/2008 of RENT CONTROL APPELLATE AUTHORITY/DISTRICT COURT, KASARAGOD RCP.31/2005 of RENT CONTROL COURT/MUNSIFF COURT, HOSDRUG .................... REVISION PETITIONER/RESPONDENT/RESPONDENT --------------------------------------------------------- CHAKKALAKKAL C.G.JOHN, S/O.C.M.GEORGE, SWEATS & SWEATS CONFECTIONARY, BAKERY, NAVARANG BUILDING, KOTTACHERY, KANHANGAD POST, BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): APPELLANTS/PETITIONERS -------------------------------------------------- 1. KOYIKKAL THRESIAMMA, AGED 80 YEARS, W/O.JOSEPH, CHIRISTIAN, LAND LORD, R/AT KOTTACHERY, P.O.KANHANGAD POST, BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. KOYIKKAL JOGI GEORGE, AGED 48 YEARS, S/O.GEORGE, CHIRISTIAN, LAND LORD, R/AT KOTTACHERY, KANHANGAD POST, BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-671503. ADV. SRI.JAWAHAR JOSE FOR R1-2 SMT.CISSY JAWAHAR FOR R1-2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/03/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.366 of 2010 ------------------------------------------------ Dated this the 21st day of March, 2011 ORDER Balakrishnan, J The challenge in this revision by the tenant is against the order of eviction passed by the Rent Control Appellate Authority under Section 11(3) of the Act. The landlords claimed eviction on the ground of bona fide need for enabling the second landlord/the second petitioner in the RCP for conducting the business in bakery products. It was contended that the landlords were not having any other suitable building for starting the business. The claim was resisted by the tenants contending that PW1, the second landlord/second petitioner in the RCP is a billionaire and he is a partner in a partnership business concern and is getting huge income as a partner in a Bar Hotel. The tenant also contended that he is depending mainly on the income from the petition schedule building for his livelihood. On considering the R. C. R. No.366 of 2010 -2- evidence adduced by both sides, the learned Rent Controller found that the need projected by the landlord is not bona fide. The Rent Control Court found that even as per the admissions made by PW1, another building is required for manufacturing bakery products but no other building was shown to be available and as such it was found that the need projected cannot be sustained. Further it was also found by the Rent Control Court that the landlords have come into possession of another room where now one Kunhiraman is conducting textile business. It was stated that Kunhiraman was put in possession of the said room just prior to the filing of the Rent Control Petition. Thus the petition was dismissed by the Rent Control Court. The Rent Control Court also found that the tenant could not establish both the limbs of the second proviso to sub Section 3 of Section 11. 2. The learned Rent Control Appellate Authority re- appreciated the evidence and found that the need projected by PW1, one of the landlords, is genuine and honest. Since the R. C. R. No.366 of 2010 -3- tenant could not substantiate the claim for protection under the second proviso, order of eviction was passed under Section 11 (3). 3. Sri.Kodoth Sreedharan, the learned counsel appearing for the revision petitioner would submit that just prior to the filing of the Rent Control Petition a room was got vacant possession of by the landlords but it was not properly considered by the learned Appellate Authority. In this connection, the learned counsel would submit that originally that building was under the possession of the landlords and after getting vacant possession of the same it was let out to Kunhiraman who is now conducting textile business in that shop. Sri.Jawahar Jose, the learned counsel for the landlords would submit that the said room was let out to Kunhiraman mentioned above in September, 2004 by executing a rent deed whereas the need for starting a business was conceived of only in April, 2005 as can be discerned from the notice which preceded the filing of the petition. Sri.Kodoth Sreedharan would R. C. R. No.366 of 2010 -4- then submit that though there is a time gap of a few months between the sending of the notice and filing of the RCP, it cannot be said that the landlord did not conceive of the need for starting a bakery business or any other business, had there been a genuine need and so, simply by projecting the time gap it cannot be said that the leasing out of the room which came into possession of the landlords in September, 2004 has no bearing on the genuineness of the need put forward. According to Sri.Kodoth Sreedharan it would only depict the oblique motive of the landlords to eject the tenant by hooks or crooks. The learned counsel would further submit that if really PW1 had the real intention to start a business, the other room which was in their possession would not have been leased out to Kunhiraman. 4. Sri.Jawahar Jose appearing for the landlords would submit that PW1 did conceive the idea of starting a business in Bakery in April, 2005 and so it cannot be said that the leasing out of the other room would in any way tell upon the bona fides of R. C. R. No.366 of 2010 -5- the claim projected in this case. The contention raised by the tenants that since PW1 is a partner in a Bar Hotel and he is getting huge amount as a partner of the said business and also other business may not stand in the way of thinking of starting an independent business by himself. There is no case for the tenant that PW1 is conducting an independent business so as to doubt the need projected by him. The learned Appellate Authority has scanned the evidence carefully and has come to the conclusion that the need set up by PW1 is genuine and honest. It is not prompted by any extraneous consideration or oblique motives. Unless there is reason to hold that the finding entered by the learned Appellate Authority is wholly erroneous, this Court will not be justified in upsetting that finding entered by the Appellate Authority. We have scanned the evidence carefully and found that the finding entered by the learned Appellate Authority does not warrant interference. 5. Admittedly, the tenant did not adduce satisfactory R. C. R. No.366 of 2010 -6- evidence to claim protection under the second proviso to sub Section 3 of Section 11 and as such the order of eviction passed by the learned Appellate Authority under Section 11(3) is only to be confirmed. The revision, therefore must fail and is hence, dismissed. 6. Sri.Kodoth Sreedharan, the learned counsel for the revision petitioner would submit that at least one year time may be granted to the tenant to vacate the petition schedule building. Though this request is opposed by Sri.Jawahar Jose, considering all the aspects, we are inclined to grant time to the revision petitioner till 31/03/12 to vacate the petition schedule building subject to conditions. The revision petitioner will file an affidavit within three weeks from today undertaking that he will surrender vacant possession of the petition schedule building to the landlords on or before 31/03/12 and further that he will discharge the entire arrears of rent, if any due, within one month from today and that he will continue to pay the occupation charges at R. C. R. No.366 of 2010 -7- the current rent rate till date of actual surrender. The revision petitioner will get the benefit of time granted as above only if he files the affidavit as directed above on time and honours the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-