IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 RCRev..No. 108 of 2008() ------------------------ RCA.18/1999 of ADDL.DISTRICT COURT (ADHOC), KASARAGOD RCP.48/1997 of MUNSIFF COURT, HOSDRUG .................... : PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------ P.KRISHNAN, S/O.LATE.KRISHNAN EMBRANTHIRI, MERCHANT, KRISHNAN STORES, PANDURANGA BUILDING, HOSDURG, P.O.HOSDURG, HOSDURG VILLAGE AND TALUK, KASARAGOD DISTRICT. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENTS: RESPONDENT ----------------------- M.SOORAJ KUMAR, S/O.M.PRABHAKARA RAO, SALESMAN, RESIDING AT HOSDURG, HOSDURG VILLAGE, P.O.KANHANGAD, HOSDURG TALUK, KASARAGOD DIST. 671315. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.108 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the day of May, 2008. JUDGMENT Ramachandran Nair, J. The tenant has come up in revision challenging the order of eviction passed by the Rent Control Court which stands confirmed by the Rent Control Appellate Authority. 2. The landlord sought eviction under Sections 11(2), 11(3) and 11 (4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, 1965. The need put forth is to start a furniture shop of his own in five rooms of the building. The schedule building is having three rooms in the ground floor and two rooms in the up stair and the schedule room is the middle room in the ground floor. The ground floor is to be used as sales-cum-showroom and the up stair rooms for storing purposes . By removing the northern and southern wall of the middle room, the three rooms can be used as a single room. The rooms on either side have already been vacated by the respective tenants. It was also alleged that certain actions of the tenant have resulted in diminishing the utility and value of the building materially and permanently. RCR 108/2008 -2- 3. The above grounds were strongly refuted by the tenant. It was mainly contended that the father of the landlord had sought eviction in R.C.P.No.14/1986 which was dismissed and the appeal and revision filed against the said order were also dismissed. It is thereafter, the property was gifted to the son. The tenant also pleaded that there are no other suitable building in the locality available for shifting the business and that he is depending mainly on the income from the business in the schedule building. 4. On an analysis of the evidence adduced by both parties, the Rent Control Court allowed eviction under Section 11(3) of the Act and the petition was rejected on other grounds. 5. Learned counsel for the petitioner Mr. K. Shri Hari Rao attacked the findings rendered by the Rent Control Appellate Authority on the bonafide need put forth by the landlord by contending that the concurrent orders passed by the Rent Control Court in R.C.P. No.14/1986 confirmed in R.C.A.No.23/1987 and RCRO NO.15/1989 filed by the father of the landlord herein, will show that the execution of the gift deed in favour of the son is only to seek eviction of the tenant herein. It is therefore contended that the bonafide need put forth is without any basis. It was also contended that he is having other rooms to conduct the business. 6. We find that the above contentions have been considered RCR 108/2008 -3- elaborately by the Rent Control Court and the Appellate Authority. It was found that the dismissal of the eviction petition filed by the father was in the year 1989, whereas Ext.A1 gift deed was executed only in the year 1996. Therefore, it was held that the argument raised by the tenant that it was a document which was never intended to be acted upon and was executed only to seek eviction of the tenant, cannot be accepted. We find that the above view taken by the Rent Control Court and the Appellate Authority, is a plausible one. The other contention that the northern and southern walls of the schedule room cannot be removed without causing damage to the building, was also not accepted by the authorities below. The report of the Commissioner, Ext.C2 will show that the same is possible and by removing the northern and southern walls of the building, the three rooms will form a single room. It has also been noticed in the report that if the wooden planks and supports are removed and substituted with rolling shutter, there would be more space and it will be more attractive. In fact, the petitioner could not successfully counter the above aspects contained in the report of the Commissioner. In regard to the argument that the other roms in the possession of the landlord are sufficient, the appellate authority was of the view that going by the measurement of the rooms given by the Commissioner and in view of the fact pleaded by the landlord, it cannot be RCR 108/2008 -4- said that the said room is not required for conducting the business. Since the landlord is proposing a furniture business, he will have to exhibit the show pieces in the show room. The Appellate Authority therefore held that the argument of the tenant has no merit. 7. Learned counsel for the petitioner then contended that the landlord is having interest in another business concern and therefore the bonafide need pleaded is not a genuine one. In fact, the Appellate Authority considered the said argument and found that the income from the said business is practically nil and the landlord cannot be compelled to continue a business which is not lucrative. We find no error in the findings rendered by the authorities below on this aspect also. 8. As regards the benefit of the second proviso to Section 11(3) of the Act also is concerned, the findings are against the tenant. It has been found that the evidence will show that the tenant is having other income agriculture and his children are also well placed and are not depending on him. Regarding the non-availability of suitable building, the Rent Control Court found that the tenant has not discharged his burden of proof. Therefore, he has obviously not established the facts for claiming the benefit of the second proviso. 9. We find that the view taken by the fact finding authorities are RCR 108/2008 -5- perfectly justified on the evidence adduced by the parties. For all the above reasons, the revision petition is dismissed. It cannot be said that the view taken is so perverse warranting interference in this revision. 10. At this stage, the learned counsel for the petitioner sought for some time to vacate the premises. We grant four months time from today to the petitioner to vacate the premises on condition that he files an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry of four months from today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. If any of the conditions aforesaid is violated, then the order of eviction will become enforceable at once. Subject to the above, the revision petition is dismissed, however no costs. (P.R. Raman, Judge.) (T.R. Ramachandran Nair, Judge.)