IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 RCRev..No. 281 of 2008() ------------------------ R.C.A.NO.3/2006 OF THE RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA RCP.NO.11/2004 OF THE RENT CONTROL COURT, CHERTHALA. REVISION PETITIONERS/APPELLANTS 2 TO 6 IN APPELLATE COURT ON IMPLEADING. --------------------------------- 1. PADMAKSHI, MANGALAPPALLIL, MUHAMMA P.O. 2. SUVARNA, W/O. M.K.SAHADEVAN MANGALAPPALLIL, MUHAMMA P.O. 3. SOUMYA, D/O.M.K.SAHADEVAN MANGALAPPALLIL, MUHAMMA P.O. 4. SILJA,D/O. M.K.SAHADEVAN MANGALAPPALLIL, MUHAMMA P.O. 5. SUJITH, S/O.M.K.SAHADEVAN MANGALAPPALLIL, MUHAMMA P.O. BY ADV. SRI.S.VINOD BHAT RESPONDENT/RESPONDENT/PETITIONER --------------- C.K.MURALEEDHRA PANICKER, S/O.KOCHUKRISHNA, PANICKER, CHONGALAKKATTU, MUHAMMA P.O. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- R.C.R.NO.281 OF 2008 -------------------------------- Dated this the 14th day of November, 2008 O R D E R Raman,J. Counter Petitioner in the RCP is the tenant, who is faced with an order of eviction passed by the Rent Control Court and affirmed by the Appellate Authority under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. Though the eviction was ordered under Section 11(2) (b) and 11) (3) of the Act, what survives for consideration is only the proceedings under Section 11 (3) of the Act. 2. According to the landlord, the petition schedule building belongs to him was let out to the tenant/counter petitioner on a monthly rent of Rs.45/- and he committed default in payment of the rent. The landlord bona fide needs the petition schedule building for the occupation of his wife, Beena, who is dependent on him, for the purpose of conducting motor winding, repairing and -2- R.C.R.No.281/2008 servicing shop. It is also alleged that the tenant has his own vacant building in possession adjacent to the petition schedule building. Pursuant to the issuance of notice and ultimately finding that the tenant is not vacating the building, the rent control petition was filed. The counter petitioner/tenant contended that the bona fide need alleged is only a ruse for eviction and that the need alleged for occupation of his wife for conducting motor winding, repairing and servicing business is false, that for the past several years she had been conducting tuition, that she had no intention to start any such occupation and that the landlord is having other rooms, if at all the need set up is bona fide. The allegation that the tenant is in possession of vacant room nearby the petition schedule building is denied. He also claimed the benefit of 2nd proviso to Section 11(3) of the Act. 3. On the side of the landlord PWs.1 and 2 were examined and Exts.A1 to A11 were marked. On the side of the tenant RW-1 was examined and Exts.B1 to B4(a) were marked. The report of the Commissioner was marked as Ext.C1. The Rent Control Court, -3- R.C.R.No.281/2008 after analysing the evidence on record, found that the bona fide need as alleged in the rent control petition is proved. Though it is alleged that the counter petitioner is in possession of other building reasonably sufficient for his requirement, no such point was raised and considered by the Rent Control Court. 4. The bona fide need is for occupation of his wife, who is dependent on him, for conducting business. To prove the said fact, evidence has been let in to show that she had been conducting an SSI Unit in the name and style “B.Tech Engineering” in motor winding, repairing and servicing. Ext.A10 provisional registration certificate issued by the Director of Industries and Commerce is produced to prove the same. PW-1 also gave evidence in support of the case as pleaded in the rent control petition. Wife was examined in this case as PW-2. The evidence of PW-2 also shown that she had attended the course in motor winding, repairing and servicing. Therefore, the bona fide need as alleged was found to be true. This finding was affirmed, even after re-appreciation of the evidence on record by the Appellate Authority. We have gone -4- R.C.R.No.281/2008 through the orders passed by both the courts below and we find that the finding of the Rent Control Court and affirmed by the Appellate Authority is in the realm of appreciation of the evidence and in the absence of anything to show that the said findings are perverse, we decline to interfere with the said findings. 5. Regarding the contention that the landlord is having other rooms, Ext.C1 Commission report would clearly show that three rooms are actually occupied and not vacant. It is found that in the northern room he is conducting gold, finance and public telephone booth, in the middle room, he is conducting gas agency and sale of gas stove and in the southern room he is doing repairing and servicing of gas stove. Evidence has been let in by PWs.1 and 2 in this regard. Ext.C1 report also supports the case as put forth by the landlord. Though the learned counsel for the petitioner submitted that he had filed an application before the Rent Control Court to summon the licence, if any, granted in favour of the landlord, no such licence was produced in the case, which according to him, thus discharges his primary burden and the burden shift on the -5- R.C.R.No.281/2008 shoulders of the landlord to show that he is in occupation of the building, as otherwise an inference should be drawn that in the absence of any licence at least one room is kept vacant. We are unable to accept this contention. The question that arises for consideration is as to whether the landlord is actually in occupation of the building. The Commissioner has inspected the property and found that all the rooms are occupied by the landlord and he is doing some business therein. It is not necessary for us to dwell into the question as to whether such business carried on without any licence is legal or otherwise. When the tenant takes up the contention that one or more rooms are kept vacant, the question has to be considered whether the landlord's claim for eviction on bona fide need is a mere ruse for eviction. If it is found that the bona fide need as alleged in the petition has been substantiated by the evidence adduced in the case and it has been found on a re- appreciation of the evidence on record that there is no other room kept vacant and in possession of the landlord, the finding as entered into by the Rent Control Court and affirmed by the Appellate -6- R.C.R.No.281/2008 Authority is not liable to be interfered with. 6. As regards the benefit of the proviso, the question has been considered by both the courts below in the proper perspective and after considering the evidence on record, the courts below found that the tenant is not entitled to any benefit of the proviso. In the factual situation, we do not find any merit in this revision and it is accordingly dismissed. 7. At this stage of the proceeding, the learned counsel for the petitioners submitted that the business is conducted by the 5th petitioner herein, after the death of his father and he will be thrown out without avocation in life, if sufficient time is not granted to give vacant possession of the building. 8. In the circumstances, we grant six months' time to the petitioners for surrendering vacant possession of the building on the following conditions: 1) The petitioners herein shall file an undertaking in the form of an affidavit agreeing to surrender vacant possession of the building on or before 14/5/2009 and also deposit the entire arrears of rent, if any, both within one -7- R.C.R.No.281/2008 month from today before the Rent Control Court. 2) They shall continue to pay the amount equivalent to the rent for use and occupation of the building till the vacant possession is surrendered. 3) They shall not induct any third parties to the tenanted premises. 4) On the aforesaid conditions, the execution proceedings will stand deferred till 14/5/2009. 5) In case of failure to comply with the aforesaid conditions, the order of eviction passed will become enforceable forthwith. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.