IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 CRP.No. 2729 of 2002() ---------------------- RCA.112/1999 of DISTRICT COURT, THRISSUR RCOP.5/1996 of PRL.MUNSIFF COURT,THRISSUR .................... REVN. PETITIONER(S): 1ST RESPONDENT/1ST RESPONDENTS --------------------------------------------------- CHERU S/O. NELAKAVIL DEVASSY, ARANATTUKARA VILLAGE, LALUR DESOM, THRISSUR TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): APPELLANTS & 2ND RESPONDENT/PETRS & 2ND RESPONDENT ----------------------------------------------------------------- 1. RUKMINI D/O. LATE VERABHADRA CHETTIYAR, ALENGATTUPARAMBIL HOUSE, ST.THOMAS COLLEGE ROAD, THRISSUR TOWN, THRISSUR TALUK. (DIED) ( RESPONDENT NOS.2 TO 6 ARE RECORDED AS LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT VIDE ORDER DATED 9/11/2009 IN I.A. NO.3210/2009 IN CRP 2729/2002) 2. CHANDRAN S/O. LATE ALENGATTUPARAMBIL VEERABHADRA CHETTIYAR, DO.DO. 3. GOPI, SON OF DO.DO. 4. SUNILKUMAR S/O. ALENGATTUPARAMBIL THANKAM, ST.THOMAS COLLEGE ROAD, THRISSUR TOWN, THRISSUR TALUK. 5. SEETHA D/O.LATE ALENGATTUPARAMBIL VEERABHADRA CHETTIYAR, DO.DO. 6. BALAN, S/O. OF LATE ALENGATTUPARAMBIL VEERABHADRA CHETTIYAR, ST.THOMAS COLLEGE ROAD, THRISSUR TOWN, THRISSUR TALUK. ADV. SRI.G.UNNIKRISHNON FOR R1 TO 6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CMP NO.6902/2002 IN CRP NO. 2729/2002 DISMISSED 16/11/2009 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- K.SURENDRA MOHAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ C.R.P.No. 2729 OF 2002 ------------------------ Dated this the 16th day of November, 2009 O R D E R Surendra Mohan, J. The tenant is in revision. He challenges the judgment of the Rent Control Appellate Authority, Thrissur, ordering eviction of the tenant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ( hereinafter referred to as the “Act” for short). The Appellate Authority has thereby reversed the findings of the Rent Control Court, Thrissur in RCP No.5/1996 holding that the tenant was entitled to the benefit of the second proviso to Section 11(3) of the Act. 2. The Rent Control Petition was filed by the respondents/landlords on the ground that they required vacant possession of the petition schedule premises for the 4th respondent to conduct a stationery business since he was jobless. The tenant is conducting a business in electroplating from the tenanted premises. He resisted the need of the landlords CRP.No. 2729/2002 2 contending that the need was not bonafide. According to the tenant, 4th respondent was not having any previous experience in conducting the stationery business. Eviction was also sought under Section 11(2) (b) of the Act alleging that there were arrears of rent. However, the Rent Control Court found that the entire arrears of rent was remitted during the pendency of the petition and therefore the said ground was not pursued thereafter. 3. The evidence in the case consists of Exts.A1 to A3 documents and the oral evidence of PW1 on the side of the landlords and Exts.B1 to B6 documents and the oral testimonies of RW1 and RW2 on the side of the tenant. Ext.C1 commission report was marked as a court exhibit. 4. On a consideration of the contentions of the rival parties, the Rent Control Court came to the conclusion that the need that was put forth by the landlords was genuine and bonafide. However, on the question of granting protection of the second proviso to Section 11(3) to the tenant, the court found that the process of electroplating requires the assistance of various items of machinery that are to be installed on the floor of the CRP.No. 2729/2002 3 premises. The Rent Control Court found that such machinery could not be installed other than on the ground floor of a building and that generally, landlords would not permit the installation of such machinery in tenanted premises. It was also found that electroplating process involved use of poisonus substances like cyanide for the use of which the consent of neighbouring property owners was required. On the above reasoning, the Rent Control Court found that there was no other suitable building available in the locality for the tenant to shift his business. 5. The landlords challenged the findings of the Rent Control Court in R.C.A. No.112/1999 filed before the Rent Control Appellate Authority, Thrissur. The tenant did not file any appeal against the findings of the Rent Control Court. The Appellate Authority on a reappraisal of the evidence found that the Rent Control Court was not right in giving protection of the second proviso to Section 11 (3) to the tenant. The Appellate Authority found that it was not necessary to have the entire process of electroplating conducted in one and the same premises. The electroplating process could be conducted elsewhere. The CRP.No. 2729/2002 4 business in electroplated articles alone was necessary to be conducted in a commercial locality. The presumption of the Rent Control Court that generally landlords would not permit the machinery required for electroplating to be installed in the premises given on rent also was found to be without any basis. Therefore, the findings of the Rent Control Court were set aside and the appeal was allowed, directing the tenant to put the landlords in vacant possession of the premises. This revision is filed against the said judgment of the Appellate Authority. 6. The counsel for the revision petitioner strenuously contended that the Rent Control Appellate Authority went wrong in reversing the findings of the Rent Control Court. According to the counsel, there were no other suitable premises available in the locality for the tenant to shift his business. He placed reliance on Ext.P4 commission report. The alternative premises pointed out by the landlords were reported by the Commissioner as not being available for rent. The counsel for the landlords on the other hand pointed out that the Advocate Commissioner had no authority to conduct investigation into the question of availability of other rooms or to take oral evidence. According to CRP.No. 2729/2002 5 him, the Advocate Commissioner has not disclosed the source of his information in his report, as rightly found by the Appellate Authority. Therefore, he contended that the revision was liable to be dismissed. 7. We have heard Sri.P.C.Chacko, who appears for the tenant and Sri.G.Unnikrishnan, who appears for the respondents/landlords. We have anxiously considered the rival contentions of the counsel. 8. It is worth noticing that both the Authorities below have concurrently found that the need put forth by the landlords was genuine and bonafide. It is also to be noticed that the tenant had not filed any appeal challenging the said finding of the Rent Control Court. In fact, the Appellate Authority has not even considered the question of genuineness of the need put forth by the landlords. Therefore, the question as to whether the need of the landlords is bonafide or not, cannot be agitated in this revision as it has become final. In this revision, there is also no ground taken against the said finding. In the above circumstances, the only question that arises for consideration here is whether the tenant is entitled to the benefit of the second CRP.No. 2729/2002 6 proviso to Section 11 (3). According to the tenant, the business of electroplating conducted by the tenant in the tenanted premises requires licence from the local authority. Such licence is granted only to the premises that are considered non objectionable by the local authority, since the process involves use of poisonous substances like cyanide. The consent of the neighbours is also required for locating the business at some other premises. It is further contended that since the process involved use of various items of heavy machinery that are to be installed on the premises, it would be difficult to obtain suitable premises for shifting the business. The fact that certain requirements would have to be satisfied for obtaining a licence does not mean that no suitable premises would be available for the purpose of shifting the business of the tenant. It is for the tenant to search out a suitable premises for the purpose of shifting his business since the need of the landlord has been found to be bonafide. The burden is on the tenant to show that other premises suitable for his business are not available in the locality. Apart from certain statements in the commission report, there is no other evidence to show that other premises CRP.No. 2729/2002 7 suitable for the business are not available in the locality. Though the commissioner, who has filed Ext.C1 report, had visited the locality, he was not shown the other premises pointed out by the landlords so as to report why they were not suitable. Therefore, this is a case in which the tenant has not been able to show why the premises pointed out by the landlords were not suitable for his business. 9. It is also worth noticing that it is not necessary for the electroplating process and the business in the electroplated articles to be carried on from one and the same premises. The electroplating process could be carried on at a suitable place elsewhere while the business in electroplated articles could be located in the commercial area. It is for the tenant to decide as to how his business should be conducted. For our purpose, it is only necessary to find that the contention of the tenant that no suitable premises are available in the locality for shifting his business has no merit. Therefore, the Rent Control Revision fails and is accordingly dismissed. 10. As his last plea, the counsel for the revision petitioner requested for the grant of sufficient time for the petitioner to CRP.No. 2729/2002 8 vacate the premises subject to appropriate conditions. In the above circumstances the tenant is granted time to vacate the premises up to 31/3/2010 subject to the following conditions; i). The tenant shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within a period of three weeks from today, unconditionally undertaking to surrender vacant possession of the tenanted premises to the landlords on or before 31/3/2010. ii). The tenant shall pay all arrears of rent due in respect of the premises to the landlords and shall continue to pay rent in respect of the tenanted premises at the contracted rate till he surrenders vacant possession of the premises to the landlords. In the event of default by the tenant of any of the above conditions, the landlords shall be free to execute the order of eviction granted in this case. CRP.No. 2729/2002 9 In the above circumstances, there will be no order as to costs. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk CRP.No. 2729/2002 10 PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ C.R.P.No. 2729 OF 2002 ------------------------ O R D E R 16th November, 2009