IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 RCRev..No. 118 of 2009() ------------------------------------ RCA.NO. 36/2007 of II ADDITIONAL DISTRICT COURT, PALAKKAD RCP.NO. 29/2005 of PRINCIPAL MUNSIFF COURT, PALAKKAD .................... REVISION PETITIONER/RESPONDENT/PETITIONER --------------------------------------------------------------------------- DR.CHOKKALINGAM ,S/O.OLAKANATHAN G.K.KUPPUSWAMY NAIDU MEMORIAL HOSPITAL ANNEX,PAPPANAIKENPALAYAM, COIMBATORE-37 TAMIL NADU. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE RESPONDENT(S)/ APPELLANTS/ RESPONDENTS ------------------------------------------------------------------------ 1. THE MANAGER, M/S.CARAVAN GOODS CARRIER MBT (WEST) MANNANCHIRA ROAD, PALAKKAD-1. 2. M/S.CARAVAN GOODS CARRIERS (P) LTD 4TH FLOOR, KARUNAKERI ESTATE, SHANMUGHAM ROAD, ERNAKULAM. R1 BY ADV. SRI.RAJESH SIVARAMANKUTTY THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 118 OF 2009 = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2011. O R D E R Balkrishnan,J. Landlord is in revision. His claim for eviction on the ground of bonafide need for own occupation of the petition schedule building was allowed by the learned Rent Controller but was reversed by the learned Appellate Authority. The landlord/revision petitioner is a Doctor by profession. He was working at Coimbatore. Later he joined another hospital- Craigmore Plantation India(PVt) Ltd, Nilgiris, Tamil Nadu. It is contended that he is a native of Palakkad and he wants to return to Palakkad and settle there. Adjacent to the petition schedule room there is another building which was formerly occupied by R.C.R. NO. 118 OF 2009 -:2:- one Abdul Sajith. The need projected is to construct a new building after getting eviction of the petition schedule building and the building which was occupied by Abdul Sajith. RCP 27/05 was filed to vacate Abdul Sajith. The petitioner was granted eviction in that case and he has already taken delivery of the building mentioned therein as is evidenced by Ext.A8. According to the landlord only if both the buildings are obtained vacant possession it can be demolished and a new building can be constructed wherein he can reside with his family and a part of the same can be used as his Clinic. 2. The claim for eviction was resisted by the other side. The tenant contends that this building is situated in the market place, a busy area bustling with business activities and so it cannot be said that the landlord-doctor can R.C.R. NO. 118 OF 2009 -:3:- start a clinic in such a busy area. It is also contended that this petition is only a ruse for eviction. Learned Rent Controller after analysing the evidence held that the need projected is bonafide. It was also found that the respondent is not entitled to the benefit of the 2nd proviso to S.11(3). 3. The learned Appellate Authority found that Ext.A2 plan obtained by the landlord from the Municipality is for the construction of residential building and not for the purpose of using it as a clinic and thus declined eviction reversing the order of the trial Court. 4. Sri.Chithambaresh, learned senior counsel would submit that0 there is no difficulty for residing in the reconstructed building and to use a portion of the very same building as a clinic. The learned senior counsel also pointed out that the very case R.C.R. NO. 118 OF 2009 -:4:- projected by the landlord is to construct the building to be used for his residence and also to use a portion of the same as a clinic and so it cannot be found that the pleadings are vague or scanty. Evidence was given by the landlord that he intends to start practice in a portion of the building after reconstruction. Learned counsel Smt.Premakumari argued vehemently that a Doctor who has been working or practising at Coimbatore will never intend to start practice at a new place, that too at a market place as he had no connection with the locality where the building is situated. Sri.Chitambaresh, the learned senior counsel submits that since his native place is Palakkad and since his relatives are also in Palakkad there is nothing unusual in the plea raised by the landlord. In fact no oblique motive was attributed or suggested by the respondent against the landlord. The R.C.R. NO. 118 OF 2009 -:5:- evidence given by PW1 was accepted by the learned Rent Controller giving cogent and valid reasons. The finding so entered by the learned Rent Controller was reversed by the learned Appellate Authority stating that the landlord should have claimed eviction u/s 11(4)(iv) of the Act. Since the case of the landlord is to reconstruct the building for starting a clinic, for his own occupation, the claim would fall only under S.11(3). The need projected by the landlord is not prompted by any extraneous reasons or oblique motives. Thus in reversal of the finding of the learned Appellate Authority we hold that the bonafide need alleged by the landlord is true, honest and sincere. Respondent is a Company having business concerns at several places all over India. Both the courts have concurrently found that the respondent is not entitled to protection under the 2nd proviso to R.C.R. NO. 118 OF 2009 -:6:- S.11(3). The result therefore is this revision petition is allowed granting order of eviction u/s 11(3) of the Act. 5. The learned counsel for the respondent/tenant would submit that the respondent may be given one year time to vacate the petition schedule building. Learned counsel for the revision petitioner has opposed this request. However, considering all the aspects we are inclined to grant one year time to the tenant to surrender possession of the petition schedule building to the landlord but on the following conditions. 6. The respondent/tenant shall file an affidavit within one month from today undertaking to give peaceful surrender of the building to the landlord/revision petitioner on or before 26.5.2012 and undertaking further that they will discharge the arrears of rent if any R.C.R. NO. 118 OF 2009 -:7:- within one month from today, and will continue to pay occupation charges at the rate of Rs.1,000/- per month with effect from 1-6-2011 promptly and regularly as and when the same falls due till the date of actual surrender. It is made clear that the respondent will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE, JUDGE. N.K. BALAKRISHNAN, JUDGE. ul/-