IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 RCRev..No. 209 of 2011(A) ------------------------- RCA.6/2009 of RENT CONTROL APPELLATE AUTHORITY, ADDITIONAL DISTRICT COURT (ADHOC), MANJERI RCP.58/2005 of RENT CONTROLLER/MUNSIFF - MAGISTRATE COURT,PONNANI. .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ----------------------------------------------------------------------------- ACHIPRAVALAPPIL HARIS, S/O. KUNHAPPUTTY,EDAPPAL AMSOM, THUYYAM DESOM, PONANI TALUK. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE, BY ADV. SRI.SAJU.S.A., SRI.K.C.KIRAN RESPONDENT(S): RESPONDENT/PETITIONER: ---------------------------------------------------------------------- KANDATH VEETTIL SAYADUDHEEN, S/O. SAINUDHEENKUTTY, PONANI AMSOM DESOM IN PONANI TALUK-679 577. BY ADVS. SRI.SANTHEEP ANKARATH, SRI.SUMODH MADHAVAN NAIR. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss PIUS C.KURIAKOSE & P.BHAVADASAN, JJ. --------------------------------------------------- R.C.R.No. 209 of 2011 ---------------------------------- Dated this the 4th day of July, 2011 ORDER P.BHAVADASAN,J. The tenant who suffered an order of eviction at the hands of the Rent Control Court, which was confirmed in appeal is the revision petitioner. 2. The tenant was inducted into possession of the property by a society and later on society transferred the property to the petitioner before the Rent Control Court as per Ext.A5 dated 07.07.2004. It is claimed that the notice of assignment was given to the tenant immediately. The landlord was conducting a stationery business which he had to wind up since the premise occupied by him was demanded back by his landlord and also he was facing financial problems. At present, he has no means of income and he wishes to start a stationery business, for which purpose he needs the premises. It is also alleged that there was other suitable rooms available in the locality for the tenant to carry on the business. R.C.R.No. 209 of 2011 2 3. The tenant resisted the claim for eviction by disputing the title of the landlord and also pointing out that there was no bonafides in the claim. He also sought protection under 2nd proviso to Section 11(3). 4. On the basis of the pleadings, issues were raised the Rent Control Court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A12 from the side of the petitioner. The respondent examined as RWs 1 and 2 and had Exts.B1 to B18 marked. Exts.C1 and C2 are the commissioner's report and sketch. Exts.X1 to X17 are third party exhibits. 5. On an appreciation of the evidence in the case, the Rent Control Court came to the conclusion that the landlord had successfully established in bonafide need and also that the tenant was not entitled to the protection under 2nd proviso to Section 11 (3). Accordingly, the eviction was ordered. The tenant carried the matter in appeal. The appellate court refused to interfere. 6. Before this Court, the main contention is that Rent Control Appellate Authority has not considered the protection available to the tenant under 2nd proviso to Section 11(3). The R.C.R.No. 209 of 2011 3 learned counsel for the revision petitioner pointed out that the only reference to this aspect in the order of the lower appellate court is in paragraph 17 wherein it is merely stated that the tenant is not entitled to protection under 2nd proviso to Section 11(3). 7. Finding that there is some merits in the above submission, we called for the records and perused the same. On going through the records we feel that the findings of the courts below that the tenant is not entitled to the protection under 2nd proviso to Section 11(3) is quite justified. PW1, the landlord asserted that there are other rooms available in the locality for the tenant to occupy. When the tenant examined himself he was asked about the availability of rooms in the locality. His reply was he has not bothered or cared to enquire about the same as he feels, he need not surrender the petition schedule premises. The burden is on the tenant to establish both limbs of the 2nd proviso to Section11(3). When the tenant deposes he has not cared to enquire about the availability of other room, certainly he does not qualify to get protection of the proviso. Therefore we R.C.R.No. 209 of 2011 4 find no grounds to interfere with the orders of the authorities below. 8. Faced with the above situation, the learned counsel appearing for the revision petitioner prayed for some time to vacate the premises. 9. After having given our anxious consideration to the various aspects, we feel that the request made is justified. Considering the nature of the business carried on in the premises etc, we feel that the tenant can be given a period of one year from 01.08.2011 on the following conditions: 1. The tenant shall file an affidavit before the Rent Control Court within a period of three weeks from the date of this order undertaking unconditionally to surrender the premises on or before the expiry of one year from 01.08.2011. 2. The tenant shall deposit all the arrears of rent to the landlord within two months from the date of this order. R.C.R.No. 209 of 2011 5 3. The tenant shall continue to pay the occupation charge at the same rate as he was paying the rent till he vacates the premises. PIUS C.KURIAKOSE, JUDGE P.BHAVADASAN, JUDGE. ln The condition No.3 in page 5 of the order dated 04/07/2011 in R.C.R.209/2011, is corrected and substituted as: “The tenant shall continue to pay rent at the rate of Rs.1,800/- per month from 1/08/2011 till he vacates the premises.” Vide order dated 14/02/2012 in I.A.332/2012 in R.C.R.209/2011. sd/- Registrar(Judicial)