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 18TH OCTOBER 2010 / 26TH ASWINA 1932 RCRev..No. 312 of 2010 --------------------------- RCA.3/2008 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE, (ADHOC)-III, KASARAGODE RCP.13/2005 of PRL.MUNSIFF, KASARAGOD .................... REVISION PETITIONER/APPELLANT/1ST RESPONDENT ----------------------------------------------------------- A. I. MOHAMMED ASHRAF, AGED 42 YEARS, S/O P.B.I. ABDUL KHADER, RESIDING AT OPP. SCOUT BHAVAN, VIDYANAGAR, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT, REP. BY HIS GENERAL POWER OF ATTORNEY HOLDER, MASHOOD A.I., S/O P.B.I ABDUL KHADER, RESIDING AT OPP. SCOUT BHAVAN, KASARAGOD. BY ADV. SRI.P.K.MUHAMMED RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 5 & 2: ---------------------------------------------------------------------------------- 1. K. RAVEENDRA KAMATH, AGED 48 YEARS, S/O LATE BHASKER KAMATH, RESIDING AT NEKKILADY VILLAGE, P.O., UPPINANGADI, DK DISTRICT, PUTHUR TALUK, KARNATAKA STATE. PIN-681014 2. K.S. NAGESH KAMATH, AGED 54 YEARS, S/O LATE BHASKER KAMATH, RESIDING AT CHINMAYA COLONY, VIDYANAGAR, KASARGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT. PIN 671123 RCR.312/10 -2- 3. K. SARVOTHAMA KAMATH, AGED 52 YEARS, S/O LATE BHASKER KAMATH, RESIDING BEHIND GEETHA TALKIES, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT. PIN 671121 4. SMT.PRAVEENA R. MALLYA, AGED 50 YEARS, D/O LATE BHASKER KAMATH, RESIDING AT FLAT NO.201, BUILDING NO.18, SHAKTHI NAGAR 3RD CROSS, DAHISAR EAST, MAHARASHTRA STATE – 400068. 5. MOHAMMED SALI, AGED 49 YEARS, S/O IBRAHIM MUSLIYAR, WORKING AT NAMA FRESH CHIPS AND BAKERY, M.G.ROAD, KASARAGOD PIN 671121. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.312 of 2010 ------------------------------------------------ Dated this the 18th day of October, 2010 ORDER Gopinathan, J In this revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, the first respondent/tenant in RCP.13/05 on the file of the Rent Controller, Kasaragod assails concurrent finding and order of eviction granted under Section 11(2)(b), 11 (3) and 11(4)(i) in favour of the first respondent. 2. The first respondent herein contended that the petition schedule building was let out to the first respondent on 22/12/85 for a monthly rent of Rs.1,000/- and that since August, 2003 the rent of the petition schedule building was kept in arrears; that R. C. R. No.312 of 2010 -2- petition schedule building was sub let to the second respondent and that the petition schedule building is required for the bona fide need of the wife of the first respondent for starting an automobile spare parts shop. 3. The revision petitioner inter alia contended that the bona fide need urged is a ruse to evict the revision petitioner and that there was no arrears of rent and that the petition schedule building was not sub let to the second respondent and that the father of the revision petitioner was running the business and that the second respondent is only an employee under the father. 4. During the course of the enquiry before the Rent Controller, the wife of the first respondent herein R. C. R. No.312 of 2010 -3- was examined as PW1. Exts.A1 to A6 were marked. On the side of the revision petitioner no contra evidence was let in. Exts.B1 series to B11 were marked. The Rent Controller on appraisal of the evidence arrived at a finding in favour of the first respondent herein. Consequently, the petition was allowed directing the revision petitioner to surrender the petition schedule building under Section 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. Aggrieved by the above order of eviction he preferred RCA No.3/08 before the Appellate Authority, Kasaragod. The Appellate Authority on appraisal of the evidence concurred with trial court. Therefore, by the judgment impugned dismissed the appeal. Assailing the legality, R. C. R. No.312 of 2010 -4- correctness, regularity and propriety of the said judgment, this revision was preferred. 5. We heard Sri.P.K.Mohammed, the learned counsel appearing for the revision petitioner and perused the judgment of the Appellate Authority as well as the order of the Rent Control Court. 6. Regarding the arrears of rent, it is submitted by the learned counsel for the revision petitioner that it was discharged during the pendency of the proceedings. However, no document was produced to prove the discharge. Plea being discharge, it is for the revision petitioner to prove the same. But there is no proof of discharge. In the above circumstances, we find no reason to interfere with that finding. The revision petitioner is at liberty to apply under Section R. C. R. No.312 of 2010 -5- 11(2)(c) for vacating the order on deposit of the arrears of rent. 7. As regards the bona fide need urged by the first respondent, his wife was examined as PW1. Her evidence remains un-controverted. There is nothing on record to show that the bona fide need urged by the landlord is with any mala fides. We find that the revision petitioner has not even cared to enter the witness box and to deny the bona fide need urged and deposed by PW1. Evidence of PW1 remains un- controverted. So we find no reason to interfere with the concurrent findings of the fact by the authorities below regarding bona fide need. There is no case for the revision petitioner that the need urged is hit by the 1st proviso to Section 11(3). Since the revision R. C. R. No.312 of 2010 -6- petitioner is now admittedly employed abroad, the benefit of 2nd proviso is also not available to him. The order of eviction granted under Section 11(3) is perfectly in tune with the evidence on record. 8. As regards the sub lease, it is now not disputed that the revision petitioner is abroad and he is not at all doing any business in the petition schedule building. Whereas the 5th respondent herein who was the second respondent before the Rent Control Court is doing the business. The learned counsel very vehemently argued that the business was being done by the father of the revision petitioner and the 5th respondent is only an employee and that there is no sub lease at all. It is in support of that plea, Exts.B1 to B11 were produced by the revision petitioner. Though R. C. R. No.312 of 2010 -7- it is seen by those documents that licence was obtained in favour of the father of the revision petitioner there is no evidence at all to show that either the father of the revision petitioner or the revision petitioner has got any interest in the business or that they are getting any income out of the business run in the petition schedule building. The circumstance under which the 5th respondent was put in possession of the building and business thereon is a matter within the knowledge of the revision petitioner. But no evidence was let in. In the absence of such evidence, the evidence of PW1 is to be believed. In the above circumstances, the authorities below had correctly appreciated the evidence and rightly arrived at the conclusion that there is sub lease in favour of R. C. R. No.312 of 2010 -8- the 5th respondent in the revision petition who is now doing business. The judgment impugned suffers no vice to be rectified in exercise of revisional powers. We find no merit in the revision petition. Accordingly, it is dismissed with liberty to the revision petitioner to get the order of eviction under Section 11(2)(b) vacated by invoking the provision under Section 11(2)(c) within one month from today. 9. The learned counsel for the revision petitioner having failed to impress us to admit the revision, submitted that in the event of a notice being issued to the first respondent, there is every likelihood of settling the matter for ever. Though we find no reason to admit the revision, we find merit in the submission. Therefore, we order notice to the first respondent to R. C. R. No.312 of 2010 -9- see whether there is any possibility for settlement as submitted by the learned counsel. Issue notice by speed post to probe possibility for settlement. Post after a month. The execution court is directed to keep the order of eviction in abeyance for a period of one month from today. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-