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 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 RCRev..No. 269 of 2009() ------------------------ RCA.23/2007 of RENT CONTROL APPELLATE AUTHORITY,TRIVANDRUM RCP.11/2006 of RENT CONTROL COURT, TVM .................... : REVISION PETITIONER/APPELLANT/COUNTER PETITIONER -------------------------------------------------------------------- SHIKHA AGARWAL, PROPRIETOR, AMBA AUTO MOBILES, T.C.28/1304(1) TO (4), SABARI SHOPPING COMPLEX, THAKARAPARAMBU, THIRUVANANTHAPURAM. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. VIJAYA GOPAL, AGED 54 YEARS, W/O.GOPAL, MANINI, 106, SANTHI NAGAR, SREEKARIYAM.P.O, THIRUVANANTHAPURAM, NOW RESIDING AT 3348, MPONAGE CRESCENT, KANINI, NOOLA, ZAMBIA. 2. MANU GOPAL, S/O.LATE V.GOPAL, SPS NO.106, KANINI SANTHI NAGAR, SREEKARIYAM.P.O, THIRUVANANTHAPURAM. 3. MINI ANIL, D/O.LATE V.GOPAL, SPS NO.106, KANINI SANTHI NAGAR, SREEKARIYAM.P.O, THIRUVANANTHAPURAM. SRI.M.SREEKUMAR (CAVEATOR) SRI.P.GOPALAKRISHNAN NAIR (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07/12/2009, ALONG WITH RCR NO. 280 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO. 3527/2009 IN R.C.R. NO.269/2009 DISMISSED 7/12/2009 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- K.SURENDRA MOHAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No.269 & 280 OF 2009 ------------------------ Dated this the 7th day of December, 2009 O R D E R Surendra Mohan, J. The tenants are the revision petitioners. They challenge the concurrent orders of eviction passed against them by the Rent Control Court, Thiruvananthapuram in RCP Nos.11 & 19/2006 and confirmed by the Rent Control Appellate Authority in RCA Nos.23 & 24/2007. The respondents/landlords filed the Rent Control Petitions alleging that the petitioners therein, husband and wife, had been working in Zambia and by utilising their earnings they had purchased a three storied building by name “Sabari Complex” at Thiruvananthapuram. Their intention was to settle down in their house at 'Sreekariyam', Thiruvananthapuram, and to do business in sanitary wares in the commercial building purchased by them so as to earn their livelihood. It is on record that the building was later renamed by the petitioners as 'Vijayam Tower'. 2. The ground floor of the aforesaid building and southern hall on the first floor were let out to the revision petitioner in RCR RCR.No.269/2009 2 No.269/2009 by R.Kannan, who was the then owner of the building, as per lease deed dated 26/9/2001 for a period of three years. The northern portion of the first floor of the building having an extent of 994 sq.feet was let out to the revision petitioner in RCR No.280/2009 on similar terms by the then landlord Sri.R.Kannan. It was the case of the landlords that the period of lease had expired. However, the tenants contended that the period of lease had been extended by the original landlord. It is also on record that criminal proceedings have been initiated by the original landlord alleging that the document evidencing such extension of lease was a fabrication by the tenant. Since the disputes regarding the said document are the subject matter of other proceedings, we do not propose to consider the genuineness of the said document here. During the pendency of the Rent Control Appeals, the husband – the first petitioner in the Rent Control Petition passed away and his legal representatives have been brought on record. 3. The need put forth by the landlords was resisted by the tenants in both the Rent Control Petitions raising identical contentions. According to the tenants, the need was bereft of RCR.No.269/2009 3 bonafides and was a ruse for eviction. The tenants even disputed the genuineness of the sale deed by which the landlords had purchased the building. According to them, the sale transaction itself was a sham, intended only to save the original landlord from his liability to pay back the amount that was given by them as advance at the time of taking the building on rent. The two grounds on which the landlords sought eviction are the grounds under sub section 11(3) and 11(4)(ii) of the Kerala Buildings(Lease and Rent Control)Act, 1965, hereinafter referred to as the 'Act' for short. 4. The evidence in the case consists of Exts.A1 to A35 documents and the oral testimony of PW1 on the side of the landlords and Exts.B1 to B6 and the oral testimonies of CPWs 1 to 3 on the side of the tenant. Exts.C1 and C2 have been marked as courts exhibits and Exts.X1 and X2 have been marked as witness exhibits. 5. On an elaborate consideration of the contentions of the parties in the light of the evidence on record, the Rent Control Court found that the landlords had succeeded in establishing the ground under Section 11(3) of the Act. However, the ground RCR.No.269/2009 4 under Section 11 (4) (ii) was found against. Therefore, eviction was ordered only under Section 11 (3) of the Act. 6. The orders of the Rent Control Court was challenged by the tenants before the Rent Control Appellate Authority Thiruvananthapuram in RCA Nos.23 & 24/2007. The Rent Control Appellate Authority reappraised the entire evidence and confirmed the order of eviction granted by the Rent Control Court under Section 11(3) of the Act. The Appellate Authority has also found that the order of the Rent Control Court disallowing eviction on the ground under Section 11(4)(ii) was justified. The tenants have filed the present revisions challenging the concurrent orders of eviction granted by the authorities below as stated above. 7. Sri.V.G.Arun, who appears for the tenants, contended that Exts.A2 sale deed by which the landlords have purchased the tenanted building itself was a sham document executed in collusion with the original landlord for the purpose of saving him from his liability to pay back the amount of Rupees Twenty Lakhs that had been deposited by the tenants as advance at the time of taking the building on rent. It is further contended that the need RCR.No.269/2009 5 that was put forth under Section 11(3) of the Act was that the first petitioner in the Rent Control Petitions wanted to start a business in sanitary wares. Since he had passed away during the pendnecy of the proceedings, it is contended that the said need does not survive. 8. Sri.P.Gopalakarishnan Nair, who appears for the respondents/landlords, points out that the need that was projected in the Rent Control Petitions was for the petitioners to conduct a business in sanitary wares jointly and not for the first petitioner alone. Therefore, according to him the need survives the demise of the first petitioner in the Rent Control Petitions. It is further contended that the respondents/landlords have not received any amount from the petitioners in the revisions and if the original landlord had received any amount from the tenants, it was for the tenants to recover the said amount from the original landlord. Though it has been contended on behalf of the tenants that the first respondent in the revision was still residing in Zambia, it is asserted by her counsel that she is permanently residing at Thiruvananthapuram. 9. We have considered the rival contentions of the parties RCR.No.269/2009 6 anxiously. We have also scanned the relevant portions of the evidence and records. 10. The counsel for the revision petitioners has not been able to point out any illegality, irregularity or impropriety warranting interference with the concurrent findings of the authorities below. We notice from the averments in the Rent Control Petitions and the affidavit filed lieu of chief examination of PW1 that the need that was projected was for the joint requirement of both the husband and wife who were joint petitioners in the Rent Control Petitions. Therefore, the need has survived the demise of the first petitioner under the Rent Control Petitions. We have no hesitation in endorsing the finding of the authorities below that the need put forth is genuine and bona fide. The counsel for the petitioners expressed apprehension that the landlords may not occupy the premises after getting the same vacated. Any such apprehension has no substance in view of Section 11(12) of the Act, which the tenant can press into service, in the event of such an eventuality. 11. The learned counsel for the revision petitioners requested that the amount that was deposited with the original RCR.No.269/2009 7 landlord as advance may be directed to be returned to them or at least permitted to be set off from the rent that was payable to the present landlords. We refrain from making any observation regarding the above aspect. It is for the tenants to file a suit against the original landlord for the purpose of recovery of the amounts that were deposited by them as security or advance at the time of taking the building on rent. If the tenants file a suit for the purpose within two months of the date of this judgment, then we make it clear that the tenants will be entitled to exclude the time taken in prosecuting the present proceedings under Section 14 of the Limitation Act. 12. Both the Rent Control Court as well as the Appellate Authority have concurrently found that the tenants are not entitled to the benefit of the second proviso to Section 11 of the Act. The findings of the authorities below are confirmed. 13. As his last plea, the learned counsel for the revision petitioners requested for the grant of at least one year's time for vacating the tenanted premises. Considering the facts and circumstances of the case, we feel that the tenant can be granted time upto 30/6/2010 to vacate the premises subject to RCR.No.269/2009 8 conditions. 14. In the result, the Rent Control Revisions are ordered as follows; i). RCR Nos. 269/2009 & 280/2009 are dismissed. ii). The tenants are granted time upto 30/6/2010 to surrender vacant possession of the premises to the landlords on condition that each of the tenants file separate affidavits before the Rent Control Court or the Execution Court as the case may be, unconditionally undertaking to surrender vacant possession of the premises to the landlords on or before the said date. Such affidavits shall be filed within a period of one month from today. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk