IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 RCRev..No. 133 of 2010() ------------------------ RCA.176/2003 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.75/2002 OF RENT CONTROL COURT, ,KANNUR .................... RESPONDENT/APPELLANT/PETITIONER --------------------------------------------------- T.A.JUVANCE, AGED 46 YEARS, S/O. LATE T.J.ANTONY, MANAGING PARTNER, ABHILASH JEWELLERY, (SRINGAR JEWELLERS), BANK ROAD, KANNUR, KANNUR TALUK. BY ADV. SMT.SARITHA DAVID CHUNKATH SRI.C.R.REKHESH SHARMA RESPONDENT(S): RESPONDENTS/COUNTER PETITIONERS ---------------------------------------------- 1. POYILIL PUTHENPURAYIL SHAHUL HAMEED, S/O. SUHARA AGED 32 YEARS, CAMP BAZAR, EAST WARD, KANNUR-1 AMSOM, KANNUR TALUK. 2. POYILIL PUTHENPURAYIL ANWAR (DIED), S/O. SUHARA, AGED 32 YEARS, CAMP BAZAR, EAST WARD, KANNUR-1 AMSOM, KANNUR TALUK. 3. P.P.SUHARA, W/O. P.T.ABDULSATHAR, AGE AND OCCUPATION NOT KNOWN, RESIDING AT "SUHAG", THAVAKKARA ROAD, KANNUR. 4. SHANI ANWAR, W/O. LATE ANWAR, AGE AND OCCUPATION NOT KNOWN, RESIDING AT ARENA, MUZHATHADAM, THANA, KANNUR. 5. MOHAMMED SAIN, S/O. LATE ANWAR, AGE AND OCCUPATION NOT KNOWN, RESIDING AT ARENA, MUZHATHADAM, THANA, KANNUR. 6. FATHIMA NABELLA, D/O. LATE ANWAR, AGE AND OCCUPATION NOT KNOWN, RESIDING AT ARENA, MUZHATHADAM, THANA, KANNUR. 7. SEENA MAVIYAM, D/O. LATE ANWAR, AGE AND OCCUPATION NOT KNOWN, RESIDING AT ARENA, MUZHATHADAM, THANA, KANNUR. 8. NASEELA, D/O. LATE ANWAR, AGE AND OCCUPATION NOT KNOWN, RESIDING AT ARENA, MUZHATHADAM, THANA, KANNUR. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 133 OF 2010 ------------------------ Dated this the 10th day of June, 2010 O R D E R Abdul Rehim, J. In this revision petition filed by the tenant, challenge is against concurrent orders of eviction passed on the ground of bonafide need for own occupation by the landlords, under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act 1965 (for short the 'Act'). The original landlords, the the two brothers filed the rent control petition seeking eviction on the ground of their common need for own occupation. During pendency of the appeal one of them died and the legal heirs were impleaded as supplemental respondents. Even though eviction was also sought on the ground of arrears of rent, that issue no more survives for consideration, since no eviction was ordered on that ground. 2. The need projected by the landlords was that, they RCR.No.133/2010 2 propose to start an exclusive shop of 'Men's ready- wear' in the petition schedule building. The landlords claimed that they are doing textile business and have got sufficient experience in the line of business. It is stated that the petition schedule building is suitable for starting the proposed business and no other suitable room is available in the possession of the landlords for starting the business proposed. The rent control petition was resisted by the tenant disputing genuineness and bona fides of the need projected. It is contended that the landlords are doing textile business in a shop which situates about 50 Feet away from the schedule building and if they actually intent to start the proposed business, the same can be done there itself. It was also contended that the landlords are having other buildings in their possession suitable for accommodating the business proposed. The tenant also claimed benefit of the second proviso to section 11 (3), claiming that the income derived from the business in the schedule premises is their sole means of livelihood, and that no other suitable rooms are available in the locality to shift the business. 3. Evidence before the rent control court consisted of oral RCR.No.133/2010 3 testimony of PW1, who is the second petitioner ( one among the original landlords) and documentary evidence of Exts.A1 to A3 (a) on behalf of the petitioners. The tenant was examined as RW1 and Exts.B1 to B11(a) were marked on his behalf. Inspired by the evidence adduced on behalf of the landlords, rent control court found that the need projected is genuine and bonafide. Argument of the tenant that the need projected is only a ruse to evict the petitioner with an intention to get higher rent, was not accepted by the rent control court, on evaluating evidence adduced on both sides. Even though the tenant contended that there are other suitable rooms available in the possession of the landlords, it is found that no convincing evidence is forthcoming to substantiate such a contention. It is also found that the tenant had failed to produce any evidence to prove the income derived out of the business to claim the benefit of the 2nd proviso. From the evidence adduced by the landlords the rent control court also found that there is availability of other buildings in the very same locality. Hence it is held that the tenant is not entitled for the benefit of both the proviso under section 11(3). RCR.No.133/2010 4 4. Before the Appellate Authority the tenant contended that the petition schedule building is not suitable for starting the proposed business. But relying on the dictum laid by this court and the Hon'ble Apex Court in various precedents, it is held that the tenant is not entitled to resist a claim for eviction on the ground of suitability of the place in which the landlords are intending to establish the business. It is found that that tenant is not entitled to dictate terms on the landlord or to advise him with respect to suitability of the room in question. It was further argued that the intention of the landlords is only for getting enhanced rent. Relying on various decisions, the appellate authority found that the demand for higher rent on previous occasions could not be taken as a reflection of oblique motive on the part of the landlords in claiming eviction on the ground of own need and it is only a propensity of the landlords to desire for increase in rent of his own building from time to time. With respect to the first proviso under section 11(3), the appellate authority found that, apart from averments in the petition and oral testimony of the tenant, no reliable evidence has been produced to prove that the landlords are in possession RCR.No.133/2010 5 of any other buildings suitable for accomplishing the need. Regarding the second proviso to section 11(3), the appellate authority concurred with the finding that the tenant had not succeeded in proving the ingredients required for both the limbs. Therefore, the eviction order was confirmed. 5. Mr.C.R.Rakesh Sharma, learned counsel for the revision petitioner advanced various arguments to assail the impugned orders. It is urged that the finding on the aspect of the first proviso to Section 11(3) is not proper and justified, because the courts below failed to appreciate that the landlords have got other suitable buildings in their possession or that they can even start the business in the textile shop wherein they are already conducting business in textiles, situated at 50 Feet away from the schedule building. As observed by the appellate authority, it is trite law by this time that the tenant is not entitled to dictate terms regarding suitability of the premises for establishing the proposed business. It is the consistent case of the landlords that they are having business in textile and they have got necessary experience and expertise in the field. At the same time, the specific need projected with respect to the RCR.No.133/2010 6 schedule room is that they are proposing to start an exclusive 'Men's Readymade' Shop. 6. In exercise of the revisional jurisdiction under Section 20 of the Act, we do not find any material illegality, irregularity or impropriety to hold that there is any non appreciation or mis appreciation of the evidence on record or any error in the findings arrived at regarding bona fides and genuineness of the need projected. Under the scheme of the statute, the appellate authority is the final fact finding court. We do not find any infirmity with respect to the conclusions arrived while ordering eviction. On a scanning of the impugned orders, we are of the opinion that the findings arrived by the courts below on the aspects of the first and second proviso to Section 11(3), also warrants no interference. Accordingly, we find no merit in the revision petition and the same is liable to be dismissed. 7. Learned counsel for the petitioner submitted that the tenant is conducting business in jewellery and that the abrupt stoppage or shifting of the business will put him to heavy prejudices. Considering the factual circumstances prevailing, we are of the opinion that it is only just and proper to allow the RCR.No.133/2010 7 tenant a reasonable time to vacate the premises, which we fix till 31/1/2011. 8. In the result, the revision petition is disposed of on the following terms; While dismissing the revision petition, we permit the revision petitioner/tenant time till 31/1/2011 to surrender vacant possession of the building to the first respondent subject to the condition that the revision petitioner will file an affidavit before the Execution Court undertaking to surrender vacant possession of the building on or before 31/1/2011 and to clear arrears of rent if any due within a period of one month from today. The revision petitioner will also undertake by the very same affidavit that he will continue payment of occupational charges at the rate of Rs.4000/- per month, which according to the petitioner is the current rate of monthly rent prevailing, without any default. The affidavit as directed shall be filed within a period of 3 weeks from today. The Execution Court is directed to refrain from ordering delivery of possession of the schedule premises till 1-2-2011, once filing of the affidavit and payment of arrears of rent and RCR.No.133/2010 8 occupational charges as directed above is noticed by that court. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk