IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 RCRev..No. 103 of 2010() ------------------------ RCA.34/2003 of D.C. & SESSIONS COURT,KOLLAM RCP.5/2000 of MUNSIFF COURT, KARUNAGAPPALLY .................... REV. PETITIONER/RESPONDENT/RESPONDENT -------------------- D.PARAMESWARAN ACHARI,AJAYANIVAS, CLAPPANA SOUTH MURI, CLAPPANA VILLAGE. BY ADV. SRI.M.K.CHANDRAMOHANDAS RESPONDENT/APPELLANT/PETITIONER --------------- DAMODARAN GOPINATH, SUDNINAMVEEDU, PADAYANARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE. ADV. SMT.C.S.SHEEJA,CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.103 of 2010 ---------------------------------- Dated this the 6th day of April, 2010 O R D E R --------------- Abdul Rehim,J. Respondent in RCOP.No:5/2000 on the files of the Rent Control Court, Karunagappally is the revision petitioner herein. The respondent is the petitioner/landlord. Eviction was sought on the ground of rent arrears as well as bonafide need for own occupation, as enumerated under Section 11(2) (b) and 11(3) of the Kerala Building Tax (Lease and Rent Control) Act, 1975, (the Act for short). The petition was dismissed by the Rent Control Court denying eviction on both the grounds. Landlord took up the matter in appeal and the Appellate Authority found that the tenant is liable to be evicted on the ground under Section 11(3) of the Act. But the tenant challenged the decision before this court in RCR.No:97/2009. During the pendency of the said revision petition, the tenant had sworn to an affidavit before this court to the effect that the business conducted by the landlord was shifted to his residential premises and that the RCR.103/2010 2 need projected in the Rent Control Petition no more survives for consideration. This court after considering such contentions remanded the case for fresh disposal by the Appellate Authority, with specific direction to examine impact of the subsequent events of shifting of the business of the landlord to his residential premises and its implications on the need projected for bonafide own occupation of the scheduled building. After remand both parties had adduced additional evidence and after consideration of the entire evidence on record including the additional evidence, the Rent Control Appellate Authority found that the need for bonafide own occupation raised by the landlord is genuine and therefore ordered eviction under Section 11(3) of the Act. Since the claim for eviction under Section 11(2)(b) had attained finality through decision of the Appellate Authority at the first instance, challenge in this revision is confined only to the aspect of eviction ordered under Section 11(3). 2. Averments in the Rent Control Petition was to the effect that, the landlord is conducting a Garments manufacturing industry under the name and style, 'Shyam RCR.103/2010 3 Industries' in a rented temporary shed which is not sufficient and suitable for running the industrial unit and that the landlord of the said building (shed) is demanding surrender of possession. It is further stated that the shed in which the unit is functioning is situated in a remote area and there is no facility available for keeping the manufactured garments for sale. Hence it is contended that the landlord bonafide requires is requiring the scheduled shop room for the purpose of shifting the manufacturing unit. 3. The tenant resisted the Rent Control Petition contending that the industry run by the landlord is being conducted in a premises which is sufficient and it is situated in a strong building. It is further contended that there is no necessity for a shop room since the items manufactured are sold in wholesale to different textile shops. According to the tenant, there is no bonafides in the need put forth and the same is only a ruse to evict the tenant from the scheduled premises. The Rent Control Court after evaluating evidence on record found that the need projected by the landlord is bonafide and genuine. But it is found that the tenant is RCR.103/2010 4 conducting a gold-smithy in the schedule room and the income derived therefrom is the sole means of his livelihood. Regarding availability of accommodation in the locality for shifting the business of the tenant, the Rent Control Court found that, even if some vacant shop rooms are available the respondent may not be in a position to take on lease any of such room for shifting his business and therefore the tenant is entitled for protection of the second proviso to sub-section (3) of Section 11 of the Act. 4. In appeal filed by the landlord on a total re- appraisal of the evidence on record, it is categorically found by the Appellate Authority that the tenant had totally failed in proving through any cogent evidence that he is depending mainly on the income derived from the business carried on in the schedule premises. It is found that no documentary evidence to prove the income derived has been produced. It is further found that the inability to pay higher rent or premium for occupying any alternate accommodation available in the locality, cannot be taken as a ground to negative the claim for bonafide own occupation of the RCR.103/2010 5 landlord. Such a ground cannot be projected as proof of non- availability of suitable building, as enumerated under the second limb of the second proviso to Section 11(3), is the finding. 5. With respect to genuineness of the need projected there is oral evidence of the landlord examined as PW1. He was further examined after remand. PWs 2 and 3 were examined on behalf of the landlord and Exts.A1 to A4 were marked, after remand. PW4 was also examined before the Appellate Authority. The evidence on behalf of the tenants consisted of oral testimonies of RW1 and 2 witnesses examined before the Rent Control Court as well as RW3 and 4 examined after remand. Two reports of the Advocate Commissioner (Exts.C1 & C2) one taken after remand are also available on record. 6. It has come out in evidence that the landlord had vacated the building (shed) wherein he was conducting the industry, without a litigation since he wanted to retain good relationship with its owner. PW1 as well as PW4 categorically stated that there was constant demand from the RCR.103/2010 6 owner to vacate that premises since the owner wanted to modify the building in order to make it suitable for his residential purpose. Further it has come out in evidence that the business is shifted to the residence of the landlord only with an intention to see that it is continued even at a nominal rate. The evidence adduced including report of the commissioner had categorically proved that the business is being conducted in the residence of the landlord in a highly congested manner without there being any sufficient space. Further it is proved that the residence of the tenant is situated in a highly remote area, whereas the petition schedule building is in a prominent location having good accessibility to customers. From the oral as well as documentary evidence adduced in the case, the Appellate Authority had arrived at a conclusion that the need projected is totally genuine and bonafide. Contention of the tenant that the petition schedule building is not suitable for accommodating the industry has also been discarded on the basis of the evidence available. 7. Mr. M.K.Chandramohandas, learned counsel for RCR.103/2010 7 the revision petitioner as well as C.S. Sheeja, learned counsel appearing for the respondent were heard at length. Counsel for the revision petitioner could not specifically point out any material evidence which the Appellate Authority had omitted to appreciate, or to point out that there is any misappreciation of the evidence on record. On a scanning of the impugned judgment of the Appellate Authority as well as the Judgment of this court rendered earlier, we are convinced that the landlord was successful in proving through convincing evidence, especially the evidence adduced after remand of the matter, that inspite of shifting of the unit to his residence the need for occupation of the schedule building still survives and that the subsequent events has not in any manner eclipsed such a need. 8. Under the above mentioned circumstances we do not find any illegality, irregularity or impropriety with the findings arrived by the Appellate Authority. Being the final fact finding authority we do not think that there is any error or infirmity with respect to the conclusions arrived on the facts. Within the contours of attenuated jurisdiction vested RCR.103/2010 8 on this court under Section 20 of the Act we find no reasons warranting interference to reverse any such findings. Hence the revision petition deserves no merit. 9. However, as a last submission, Sri.M.K. Chandramohandas, learned counsel for the revision petitioner, sought indulgence of this court for granting one year period for surrendering vacant possession of the schedule premises. C.S.Sheeja, learned counsel appearing for the respondent stiffly opposed the prayer. Considering the facts and circumstances we are inclined to grant time till 31.12.2010. Therefore the rent control revision is disposed of with the following directions: (i) While dismissing the revision petition, the revision petitioner/tenant is granted time till 31.12.2010 to hand over peaceful and vacant possession of the schedule premises to the respondent/landlord on condition of his filing an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking peaceful surrender of the schedule premises on or before 31.12.2010 and also undertaking to make payment of arrears of rent if any, at the rate of Rs.500/- RCR.103/2010 9 as fixed by this court in RCR.No.97/2009. In the affidavit, the revision petitioner shall further undertake to make payment of occupational charges till the date of surrender at the same rate of Rs.500/-. The affidavit as directed above shall be filed and arrears of rent if any due shall be paid within 10 days of re-opening of the court after the mid- summer vacation. (ii) The execution court shall defer ordering delivery of possession of the schedule building till 1.1.2011, once filing of the affidavit and payment of arrears of rent and occupational charges as directed above is noticed. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb/ksv