IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 RCRev..No. 185 of 2008() ------------------------ RCA.51/2006 of DISTRICT COURT, KOTTAYAM OP BRC.5/2005 of SUB COURT, PALA .................... PETITIONER/APPELLANT/RESPONDENT -------------------------------- JOSEPH ALEXANDER, ANDOOKKUNNEL AGENCIES, WARD NO.8, BUILDING NO.888, PALA MUNICIPALITY, MARKET ROAD, PALA P.O. BY ADV. SRI.BABY THOMAS SRI.LATHEESH SEBASTIAN RESPONDENTS: RESPONDENT/PETITIONER ---------------------------------- K.S.ABRAHAM, AGED 53 YEARS, S/O.DEVASIA, KATTAKKAYATHU, PALA MUNICIPALITY, LALAM KARA, LALAM VILLAGE, MEENACHIL TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1725/2008 in R.C.R.No.185/2008 DISMISSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 04/08/2008 \\TRUE COPY// P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ R.C.R.No.185 of 2008- ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 4th day of August, 2008 ORDER ORDER RAMAN, J. The petitioner/tenant who faced with an order of eviction under Sections 11(2)(b) and 11(3) of the Kerala Building (Lease and Rent Control) Act, hereinafter referred to as the Act, has filed this revision petition. The landlord sought eviction on the ground of bona fide need as also on the ground of arrears of rent. 2. As per the averments made in the rent control petition, the tenanted premises which belonged to the landlord was leased out to the tenant for a monthly rent of Rs.650/-, wherein, the tenant is conducting an agency business of bricks, tiles etc. He defaulted payment of rent from 01/05/2004. Lawyer notice was issued on 07/06/2005. Still he did not pay the amount. Earlier, the landlord was carrying on a business in bakery in another building situated to the opposite side of the petition schedule building but that had to be stopped five years ago because that building was acquired by the Municipality. The landlord has another building consisting of two rooms situated at a distance of about 100 metres away from the R.C.R.NO.185/2008 -:2:- petition schedule building. Those two rooms were earlier let out to the workers. Now the wife of the landlord is occupying one of the two rooms for conducting a flour mill and the other is let out for a tailoring shop for a monthly rent of Rs.750/-. It is also averred that the tenant is having three acres of rubber plantation, a lorry and a goods auto rickshaw and also conducting business in timber business. The main source of income of the tenant is from agriculture and timber business. It is also averred that there are other buildings available in the locality for the tenant to shift his business, if he so desires. 3. The tenant resisted the petition. It was contended that the tenant was occupying the petition schedule building for the past several years that the rent was paid but receipt was not issued. The landlord had been conducting bakery business five years ago and then he stopped that business and started a flour mill in another building. He also has let out another building portion belonging to him for conducting a tailoring shop. Yet one more building was vacant and remains in the possession of the landlord. He has got other buildings in the Municipality. Therefore, the bona fide need as alleged is wrong. The tenant is also solely depending on the income derived from the business and there is no alternate building available. R.C.R.NO.185/2008 -:3:- Therefore, he has a bona fide need and he is not liable to be evicted from the petition schedule building in the light of the first proviso to Section 11(3) of the Act. 4. PW's.1 and 2 were examined on the side of the landlord and Exts.A1 to A3 were marked. On the side of the tenant CPW's.1 to 4 were examined and Exts.B1 to B5 were marked. The commission report is marked as Ext.C1. The trial court after analysing the evidence of the case found that the bona fide need of the landlord, as alleged in the petition is proved and that the tenant is not entitled for the benefit of the first and second proviso to Section 11(3) of the Act. It is also found that there are arrears of rent and therefore, the landlord is entitled the benefit of Section 11(2)(b) of Act. In appeal filed by the tenant, the finding of the Rent Control Court was confirmed by the appellate authority. 5. We have gone through the orders passed by the courts below and also heard learned counsel appearing for the revision petitioner. The fact remains that the landlord was conducting a bakery business for sometime in a building situated opposite to the tenanted premises. Thus, he had requisite experience in conducting a bakery. The building was acquired for the construction of Municipal Market Complex and he was compelled to discontinue the bakery R.C.R.NO.185/2008 -:4:- business. Even though it was contended that two other buildings got vacant, it has been proved in evidence and appreciated by the appellate authority and the rent control authority that the said two rooms are already occupied. One room is already occupied by his wife where a flour mill is being conducted and other room is let out. Even though it is contended that the landlord has other buildings there is no such vacant room available. Both sides have examined some independent witnesses to support their case. The court below has appreciated the evidence adduced in that regard. It came to the conclusion that there are no vacant buildings in the possession of the landlord and hence the tenant is not entitled to get protection under first proviso to Section 11(3) of the Act. The bona fide need of the landlord is also proved. We do not find any reason to interfere with the said finding. 6. As regards the benefit of the second proviso to Section 11 (3) of the Act, there is ample evidence to show that the tenant is having income from other sources. The burden is on the tenant to prove that he is solely depending on the income derived from the business he is conducting in the tenanted premises and that there no other buildings available in the locality to shift his business. The court below found on analysis that the tenant has not proved the R.C.R.NO.185/2008 -:5:- ingredients of the proviso to claim the benefits thereunder. We are are also satisfied that the said findings cannot be said to be perverse. The view taken by the authorities below is a plausible one and not liable to be interfered with under Section 20 of the Act. Accordingly, we find no merit in this revision, the same is dismissed. At this stage, the learned counsel for the petitioner prayed for sometime to surrender vacant possession of the premises. We grant him three months' time from today on the following conditions: i. That the petitioner/tenant shall file an undertaking in the form of an affidavit before the Execution Court agreeing to surrender vacant possession of the premises on or before the expiry of three months, i.e. before 05/11/2008, and such undertaking shall be given within a period of three weeks from today. That he shall also deposit the entire arrears of rent, if any, less whatever that has been deposited within the aforesaid period of three weeks before the Execution Court. ii. That he shall not induct any third party into the premises. iii.That he shall continue to pay the amount equivalent to the monthly rent for use and occupation, until vacant possession of the premises is surrendered to the landlord. R.C.R.NO.185/2008 -:6:- In case of failure to comply with any of the aforesaid conditions, the order of eviction passed by the authorities below shall become enforceable forthwith. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms