IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 RCRev..No. 45 of 2008 -------------------------------- (R.C.A. NO. 88/2006 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE) ............... PETITIONERS/APPELLANT/RESPONDENT: ------------------------------------------------------------- MALIKANDI SEKHARAN (DIED), (M. SEKARAN DIED ON 01/10/2007 HIS LEGAL HEIRS/LEGAL REPRESENTATIVES ARE THE FOLLOWING PERSONS AS PER THE SURVIVING FAMILY MEMBERSHIP CERTIFICATE DATED 06/11/2007 ISSUED BY THE VILLAGE OFFICER, KOTTOOLI. 1. M.RADHA, AGED 58, W/O. M.SEKHARAN, CHAKILIPADAM PARAMBA, HOUSE NO.27/1796, PUTHIYAPALAM, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE DIST. 2. M.REEJA, AGED 37, D/O. M.SEKHARAN, CHAKILIPADAM PARAMBA, HOUSE NO.27/1796, PUTHIYAPALAM, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE DIST. 3. M.RAJESH, AGED 35, S/O. M.SEKHARAN, CHAKILIPADAM PARAMBA, HOUSE NO.27/1796, PUTHIYAPALAM, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE DISTRICT. 4. M.REJASH, AGED 31, S/O. M.SEKHARAN, CHAKILIPADAM PARAMBA, HOUSE NO.27/1796, PUTHIYAPALAM, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE DIST. BY ADV. SRI.PHILIP ANTONY CHACKO. R.C.A. NO. 45/2008: RESPONDENTS/RESPONDENTS/PETITIONERS: -------------------------------------------------------------------- 1. BATTOLI SAINABI, AGED 52 YEARS, D/O. SAIDHALI, PALATT HOUSE, NAGARAM AMSOM DESOM, KOZHIKODE TALUK AND DIST., HEAD POST OFFICE, KOZHIKODE, PIN-673 001. 2. BATTOLI AYISHABI, AGED 57 YEARS, D/O. SAIDHALI, PALATT HOUSE, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK AND DIST.,HEAD POST OFFICE, KOZHIKODE, PIN-673 001. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18/02/2008,THE COURT ON 25/03/2008 PASSED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.45 of 2008 ======================== Dated this the 25th day of March, 2008. ORDER Ravindran,J. The legal heirs of the tenant in R.C.P.No.117 of 2005 on the file of the Court of the Rent Controller - Additional Munsiff-I, Kozhikode are the petitioners. The respondents are the land lords. They sought to evict the predecessor-in-interest of the petitioners, under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the "Act", for short. 2. The landlords contended that the tenant defaulted payment of rent from 17.11.1999, that inspite of receipt of notice, the tenant did not pay the rent, that against the terms of the entrustment, the tenant had made constructions on the eastern side of the petition schedule room and has thereby materially and permanently reduced the value and utility of the building, that the tenant has started a printing press in the RCR 45/08 -: 2 :- premises which was let out for his residential occupation without the consent or permission of the land lords and that thereby also the value and utility of the building was diminished. The land lords further contended that they need the petition schedule building and the land in which it is situated for constructing a residential house for the son of the first respondent herein. 3. The tenant resisted the Rent Control Petition. He contended that the rent was not kept in arrears as alleged by the land lords, that though the rent for 10 months after November, 1999 was paid, no receipt was issued and therefore, he did not pay the rent for the period thereafter. The tenant denied the allegation that the construction made by him had materially and permanently reduced the value and utility of the building. He further contended that he is in occupation of only one room in the building consisting of four rooms, that the remaining three rooms were demolished by the land lords with a view to evict him, that he is doing binding work in the petition schedule room, that Refeeq, the son of the first respondent is running a jewellery business, that the parcel of land in which the petition schedule room is situated has an area of more than 22 cents, that there is RCR 45/08 -: 3 :- adequate vacant space available with the land lords to put up a residential building for the occupation of the said Refeeq, that the other tenants had vacated the premises occupied by them since they had constructed their own houses, that he does not have the financial ability to construct a house and shift his place of residence, that he is depending for his livelihood solely on the income derived from the binding business being carried on by him in the petition schedule room and that no other suitable buildings are available in the locality to which he can shift his business. 4. In the Rent Control Court, on the side of the land lords, the son of the first respondent herein was examined as PW1 and Exts.A1 to A4 were marked. The tenant was examined as RW1. The Rent Control Court on an analysis of the evidence oral and documentary, held that the tenant has defaulted payment of rent from November, 1999 onwards, that towards the arrears he had paid a sum of Rs.1,680/- on 2.9.2005 and a further sum of Rs.600/- on 13.2.2006 and that the said payments will not cover the entire rent in arrears. On the question of bonafide need, the Rent Control Court held that the need put forward is bonafide. In RCR 45/08 -: 4 :- coming to the said conclusion, the Rent Control Court also took note of the fact that the tenants of the three other rooms had vacated the premises and those rooms were demolished. As regards the contention of the tenant that there is adequate space available in the land where the petition schedule building is situated to construct a residential building, the Rent control Court held that there is no evidence to show that sufficient space is available to put up a residential building. The Rent Control Court also held that there is no evidence to show what exactly is the extent of vacant land available for the construction of the building. The Rent Control Court accordingly repelled the contention of the tenant based on the first proviso to Section 11 (3) of the Act. Since the rooms had been let out to the tenant for residential occupation, the Rent Control Court held that the tenant is not entitled to the protection of the second proviso to Section 11(3) of the Act. On the question whether the construction made by the tenant will reduce the value and utility of the building permanently and materially, the Rent Control Court held that the land lords have failed to prove that the tenant has materially altered the building or has done anything which RCR 45/08 -: 5 :- will reduce its value and utility permanently and materially. The Rent Control Court accordingly ordered eviction under Sections 11(2)(b) and 11(3) of the Act. The tenant carried the matter in appeal. By judgment delivered on 24.8.2007, the Appellate Authority concurred with the findings of the Rent Control Court and dismissed the appeal. The tenant passed away on 1.10.2007. His legal heirs challenge the order passed by the Rent Control Court and the judgment of the Appellate Authority in this revision petition filed under Section 20 of the Act. 5. We heard Sri.Philip Antony Chacko, the learned counsel appearing for the petitioners. The learned counsel appearing for the petitioner contended relying on Annexures A and B produced along with the revision petition that the Appellate Authority ought to have permitted the tenant to take out a commission to inspect the land where the petition schedule room is situated, to establish his contention that the land lords are in possession of adequate vacant land wherein a residential building can be conveniently put up. The learned counsel for the petitioner further submitted that the first respondent's son is running a jewellery business and is not dependant on the first respondent RCR 45/08 -: 6 :- land lord and therefore the land lords are not entitled to an order of eviction under Section 11(3) of the Act. The learned counsel did not canvass the correctness of the finding under Section 11 (2)(b) of the Act. 6. We have considered the submissions made at the Bar by the learned counsel for the petitioner. The Rent Control Petition was instituted in the year 2005 and it was disposed of only on 22.2.2006. The tenant had adequate opportunity while the Rent Control Petition was pending in the Rent Control Court to apply for the issuance of a commission to inspect the land where the building is situated and to have a report and plan submitted. The tenant did not avail that opportunity though he had contended in the objection filed by him that in the vacant land available with the land lords, a building can conveniently be put up. Though the Rent Control Appeal was filed before the Appellate Authority in the year 2006, it was only in March, 2007 that the tenant filed I.A.No.164 of 2007 for the appointment of an Advocate Commissioner to inspect the petition schedule premises. By order passed on 6th March, 2007 (Annexure A), the said application was dismissed. The tenant challenged the said order RCR 45/08 -: 7 :- in W.P.(C)No.16782 of 2007. By Annexure B judgment delivered on 1.6.2007, a Division Bench of this Court declined to interfere with the order passed by the Appellate Authority. It was observed that if the tenant is aggrieved by the final order to be passed by the Appellate Authority he can question the correctness of Annexure A order in the revision petition filed therefrom. 7. In our opinion, there is no merit in the challenge to Annexure A. In Annexure B judgment, this Court had held that apart from taking out a commission, the tenant could have adduced other evidence also in support of his contention that in the vacant space available with the land lords, a building can be conveniently put up without evicting the tenant. The tenant has not adduced any evidence in that regard. That apart, the Rent Control Court and the Appellate Authority also took note of the fact that the tenants occupying three out of the four rooms had already vacated the premises by the time the Rent Control Petition was filed and that the said rooms had been demolished. Further it was held that the tenant cannot dictate to the land lords that they should put up the building excluding the site of the tenanted premises. On going through the order passed by RCR 45/08 -: 8 :- the Rent Control Court and the judgment delivered by the Appellate Authority, we are not persuaded to agree that there is any infirmity in the findings of the courts below. In any case, the finding that the land lords bonafide need the petition schedule room for putting up a residential building for PW1 cannot be said to be a perverse finding warranting interference under Section 20 of the Act. 8. The tenanted room was admittedly let out to the tenant for residential use. The courts below therefore held that the tenant is not entitled to the protection of the second proviso to Section 11(3) of the Act. The first proviso to Section 11(3) of the Act applies only if the land lord is in possession of other buildings. In the case on hand, the first proviso to Section 11(3) has no application and we agree with the finding of the courts below that the tenant is not entitled to the protection of the first proviso to Section 11(3) of the Act. As the entrustment of the building was for residential purpose, the tenant cannot claim the protection of the second proviso also. We find no merit in the revision petition. The revision petition accordingly fails and it is dismissed. RCR 45/08 -: 9 :- 9. The learned counsel for the petitioners had during the course of the arguments submitted that in the event of the revision petition being dismissed, the petitioners may be granted six months time to surrender vacant possession of the petition schedule room. Taking note of the fact that the predecessor-in- interest of the petitioners was in occupation of the petition schedule room for the past several years, we grant the petitioners three months time from today to surrender vacant possession of the petition schedule room to the land lords, subject to the following conditions: The petitioners shall file an undertaking in the Execution Court undertaking to surrender vacant possession of the petition schedule room to the respondents - land lords on the expiry of three months from today. Such undertaking in the form of an affidavit shall be filed within three weeks from today. The petitioners shall in the above said affidavit also undertake to pay the arrears of rent if any within one month from today and to continue to pay the rent due from time to time till they surrender vacant possession of the petition schedule room. They shall also undertake that they will not induct strangers into the petition schedule room. If no such RCR 45/08 -: 10 :- undertaking is filed as stipulated above, it will be open to the land lords to execute the order of eviction on the expiry of the period of three weeks specified above. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 3/3