IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 RCRev..No. 130 of 2007() ------------------------ RCA.15/2003 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.20/1999 OF RENT CONTROL COURT, KUTHUPARAMBA .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ K.P.SHEREENA, AGED 43 YEARS, W/O JAGANATHAN, KAIRALI HOUSING COLONY, THOTTADA, KANNUR. BY ADV. SRI.M.SASINDRAN SRI.K.T.POULOSE (KORATTY) RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ P.P.ABDUL KHADER, AGED 57 YEARS, S/O KHADER, VELLIYANNUR AMSOM, VAROM DESOM, KANNUR. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 8-11-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.1036/07, IA.2920/09 DISMISSED SD/- PIUS C.KURIAKOSE, JUDGE. 8-11-2010 SD/- P.S.GOPINATHAN, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------------------- RCR. No. 130 of 2007 ----------------------------------------------- Dated this the 8th day of November, 2010 O R D E R Gopinathan, J. The respondent tenant in RCP. No. 20 of 1999 on the file or the Rent Controller, Kuthuparamba is the revision petitioner. The respondent herein, the landlord filed the above petition before the Rent Controller seeking order of eviction under section 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act. During the pendency of the petition, the arrears of rent was discharged. The claim for eviction under Section 11(4)(i) was not pressed. Hence we are not mentioning the facts leading to the claim for eviction under Section 11(2)(b) and 11(4)(i). Regarding the eviction sought under Section 11(3), the respondent contended that the respondent has no house of his own for his occupation with family and that he had been residing in a house owned RCR. 130 of 2007 -2- by the mother of his wife and that the respondent bonafide needed the petition schedule building for residence as well as to start a textile business and a garment making unit. 2. The revision petitioner denied the bonafide need and contended that the petition is only a ruse to evict the revision petitioner and that the petition was filed since the revision petitioner did not heed to enhance the rent of the petition schedule building exorbitantly. It was further contended that the house in which the respondent had been occupying is very spacious and there is no inconvenience in the said house and that the respondent had no intention to start any business in garment manufacturing and that the petition schedule building is not fit for either residence or for running business. It was further contended that the respondent has no aptitude or experience in garment manufacturing and prayed for dismissal of the petition. 3. The Rent Controller during the course of the enquiry RCR. 130 of 2007 -3- recorded the evidence of the wife of the respondent as PW- 1 and that of the clerk of the revision petitioner as RW-1. On the side of the respondent Exts.A1 to A4 were marked. On the side of the revision petitioner Exts.B1 to B4 were marked. Ext. C-1 report submitted by the commissioner was also marked. The Rent Controller on appraisal of the evidence arrived at a finding in favour of the respondent regarding the bona fide need. The Rent Controller also had arrived a conclusion that there is no evidence to come to a finding that the respondent had any building of his own in his possession to meet his requirement. It was further found that the revision petitioner had been running parallel college in yet another building and that there is no evidence on record to come to a conclusion that the revision petitioner had been depending mainly on the income from the parallel college run in the petition schedule building for her livelihood. Hence it was found that the provisos to RCR. 130 of 2007 -4- Section 11(3) wouldn't hit the request for order of eviction. Consequently, the revision petitioner was directed to put the respondent in possession of the petition schedule building under section 11(3) of the act. Aggrieved by the said order the revision petitioner preferred appeal as RCA. No. 15 of 2003 before the Appellate Authority, Thalassery. By the impugned judgment dated 28-7-2006, the Appellate Authority concurred with Rent Controller. Consequently the appeal was dismissed. Now this revision. 4. We heard the learned counsel for the revision petitioner as well as the respondent. The learned counsel for the revision petitioner assailed the finding of the authorities below. But we fail to find that the fact findings authorities below had any way gone erred in appreciating the evidence. In support of the bona fide need, the wife of the respondent had given evidence. The revision petitioner could not impeach veracity of testimony of PW-1 regarding RCR. 130 of 2007 -5- the bona fide need. It is pertinent to note that part of the need urged is for residential purpose. The revision petitioner has no case that the respondent has got any house of their own to meet their residential requirement. It is very specifically pleaded that the respondent had been residing along with his wife in the house owned by the mother of the respondent's wife. It is alleged that there was some bickering between the other members and on that reason they decided to shift the residence. Though the revision petitioner would contend that the allegation of bickering between members of the family is not correct we find little reason to disbelieve the evidence of PW-1 on that aspect. So also it is revealed that the respondent has no independent source of income for his livelihood. In such event if the respondent thought of starting a business of his own, there is little room to doubt the bonafides. The fact finding authorities below had analysed the evidence of PW-1 RCR. 130 of 2007 -6- and arrived at a finding of fact that the need urged is bonafide. We find little reason to come to a conclusion that the authorities below had anyway erred in appreciating the evidence. So we find no reason to interfere with the concurrent findings of fact entered by the authorities below regarding the bonafide need in exercise of the revisional jurisdiction vested on this court under Section 20 of the Act. 5. As regards possession of any building by the respondent, there is no evidence, even an allegation at all. So the eviction sought cannot be declined under the first proviso to section 11(3) of the Act. 6. As regards the benefit of the second proviso, in fact the revision petitioner had not adduced any evidence. Whereas her clerk was examined as RW-1. RW-1 cannot give any evidence regarding the income of the revision petitioner. Further from the evidence of RW-1, it is revealed that the revision petitioner had been running a parallel RCR. 130 of 2007 -7- college wherein 1500 students are studying. Out of that only 400 students are studying in the petition schedule building. So by that reason also it could not be said that the main source of the income of the revision petitioner is from the parallel college run in the petition schedule building. The learned counsel for the revision petitioner submitted that no suitable building is available in the locality to meet the requirement of the revision petitioner. Since there is no evidence to come to a conclusion that the revision petitioner had been depending mainly on the income from the college run in the petition schedule building for her livelihood, the question as to whether any vacant building is available in the locality does not arise. However, the learned counsel had canvassed our attention to Exts. B1 and B2 and submitted that the Accommodation Controller had reported that no vacant building is available in his custody. Going by B1 and B2 we see that the request of the revision petitioner RCR. 130 of 2007 -8- to the Accommodation Controller was to allot a vacant building to meet the requirement of the revision petitioner. We notice that under rule 24 the Accommodation Controller is not bound to allot any building to any private party. So, Ext.B1 and B2 wouldn't enure to the benefit of the revision petitioner. The revision petitioner had not adduced any evidence to show that in fact the Accommodation Controller is maintaining a register detailing the availability of the vacant building within his jurisdiction. On the other hand, it is submitted by the learned counsel appearing for the respondent that though there is provision mandating the Accommodation Controller to maintain register regarding the vacancy of buildings it is not complied with. However, we notice that the revision petitioner had not cared to enter the witness box and to depose that she had made any enquiry regarding the availability of the building to meet her requirement. In the circumstance, we are not entering upon RCR. 130 of 2007 -9- a finding as to whether the Accommodation Controller is really maintaining a register regarding availability of the vacant building or not. We find that the revision petitioner had not at all succeeded to establish that no vacant building is available in the locality to meet the requirement. In addition to that, as we stated earlier, the revision petitioner has not succeeded to establish that she is depending mainly on the income from the college run in the petition schedule building for her livelihood. Therefore, she is not entitled to the benefit of second proviso to Section 11(3). The result is that we find no reason to interfere with the judgment of the Appellate Authority. 7. In the result the revision petition fails and hence it is dismissed. The learned counsel for the revision petitioner alternatively sought for granting one year time to vacate the premises. The prayer was stoutly opposed by the learned RCR. 130 of 2007 -10- counsel for the respondent. Having heard either side and taking note that the revision petitioner had been running parallel college for a pretty long time, we find that it would be just and proper to grant the time sought for so as to enable the revision petitioner to find out suitable accommodation for shifting the college. In the above circumstance, we direct the Rent Controller to keep the order of eviction in abeyance till 30-11-2011 on the following conditions: 1) The revision petitioner shall file an affidavit before the Rent Controller/execution court as the case may be, within three weeks from today undertaking to vacate the premises on or before 30-11-2011 without raising any objection. 2) The revision petitioner shall pay damages for occupation at the rate of Rs.1,250/- per month with effect from 1-12-2010. RCR. 130 of 2007 -11- The revision petitioner will be entitled to the extended time for vacating the premises only if the above conditions are complied with. In the event of failure to comply with any of the conditions, the respondent is at liberty to execute the order of eviction. There will be no order as to costs. (PIUS C.KURIAKOSE, JUDGE) (P.S. GOPINATHAN, JUDGE) ksv/-