IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 RCRev..No. 240 of 2008() ------------------------ RCA.8/2003 of ADDL. DISTRICT COURT, THALASSERY RCP.34/1999 of MUNSIF COURT, KUTHUPARAMBA .................... REVISION PETITIONERS/APPELLANTS NOS.1,3,4,7-16 in RCA AND RESPONDENT NOS.2,5,6,9,10-16 IN RCP ---------------------------------------------- 1. VALIYAPARAMBATH THACHOLI MATHU, W/O.VASU (LATE),AGED 66 YEARS, KUTHUPARAMBA AMSOM, NARAVOOR DESOM. 2. ANITHA, D/O.MATHU, AGED 38 YEARS, CHAMBALON HOUSE, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA. 3. GEETHA, W/O.MOHANAN, AGED 22 YEARS, CHAMBALON HOUSE, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA. 4. NIDHINA, D/O.MOHANAN, AGED 19 YEARS, CHAMBALON HOUSE, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA. 5. CHAMBALON NANU, D/O.KALLIANI, AGED 70 YEARS, VALIAYAPARAMBATH HOUSE, POOKOD, TRIKKANNAPURAM, KUTHUPARAMBA. 6. CHAMBALON ROHINI, D/O.KALLIANI, AGED 68 YEARS, CHIRAMMAL HOUSE, PARAL, KUTHUPARAMBA AMSOM, NARAVOOR DESOM. 7. CHAMBALON ACHUTHAN, S/O.KALLIANI, AGED 66 YEARS, BINDU NIVAS, ODAMKICHAL, KUTHUPARAMBA, P.O.POOKODE. 8. CHAMBALON DEVOOTTY, D/O.KALLIANI, AGED 60 YEARS, CHAMBALON HOUSE, VELLARVALLI AMSOM DESOM, P.O.PERAVOOR. 9. CHAMBALON RAJAN, S/O.KALLIANI, AGED 58 YEARS, VALIYAPARAMBATH HOUSE, KUTHUPARAMBA AMSOM, TRIKKANNAPURAM DESOM. 10. CHAMBALON KAMALA, D/O.KALLIANI, AGED 55 YEARS, PREETHA NIVAS, 0 KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA. RCRev..No. 240 of 2008() 11. EKILISSERI SHYLAJA, D/O.BALAN, AGED 47 YEARS, KUNDANCHAL HOUSE, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA. 12. PRASANNA.P.P., W/O.VIJAYAN, AGED 38 ODANKICHAL HOUSE, P.O.POOKODE VIA PATHAYAKKUNNU. 13. PRAVEESH P.P., S/O.VIJAYAN, NO OCCUPATION, ODANKICHAL HOUSE, P.O.POOKODE VIA PATHAYAKKUNNU. BY ADV. SRI.K.V.PAVITHRAN RESPONDENT(S): RESPONDENT NO.1 & APPELLANT NOS. 5,6,& 17/PETITIONER & R7,8 AND LEGAL REPRESENTATIVES OF RESPONDENT NO.7.: -------------------------------------------- 1. THENKUDI VASU, S/O.KUNHIKANNAN, AGED 60 YEARS, RAILWAY EMPLOYEE, SOUPARNIKA, KOTTAYAM AMSOM DESOM, P.O.POOKODE, THALASSERI TALUK. 2. GREESHMA, D/O.MOHANAN (LATE) AGED 23 YEARS, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA. 3. DHANISH, S/O.MOHANAN (LATE) AGED 22 YEARS, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA. 4. PRAVIJA.P.P., D/O.VIJAYAN, NO OCCUPATION, ODANKICHAL HOUSE, P.O.POOKODE, VIA.PATHAYAKKUNNU, THALASSERI TALUK. ADV. SRI.MILLU DANDAPANI FOR CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON 07/10/2008, PASSED THE FOLLOWING: RCRev..No. 240 of 2008() ORDER ON I.A.NO.2187/2008 IN R.C.R.NO.240/2008 CLOSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 07/10/2008 \\TRUE COPY// P.A to Judge P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ R.C.R.No.240 of 2008-C ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 7th day of October, 2008 O R D E R O R D E R RAMACHANDRAN NAIR, J. The tenants are the revision petitioners. They are the legal representatives of the original tenant Chambalon Vasu. The revision is filed challenging the judgment passed by the Rent Control Appellate Authority in R.C.A.No.8/2003. The authorities below have granted eviction sought for under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act, (hereinafter referred to as 'the Act'). 2. The learned counsel for the petitioners submitted that both the authorities below have failed to appreciate in the correct legal perspective the oral evidence available in the case, especially the deposition of PW.2 for whose benefit the eviction is sought. Requirement of the building is for conducting repair works of television, radio and other electronic items, by PW.2, the son of the first respondent, Thenkudi Vasu. The learned counsel further pointed out that in the deposition before the Rent Control Court, the son could not even definitely state as to when the requirement arose and that he R.C.R.NO.240/2008 -:2:- became aware of the filing of the Rent Control Petition only some months before his examination as PW.2. It is therefore, submitted that there are no bona fides in the claim. 3. We heard the learned counsel for the respondents who appeared for the Caveator also. 4. As pointed out above, the landlord sought eviction on the ground that his son Vijesh Kumar has passed a Trade test in the trade of Electronics-Mechanic and has obtained a Trade Certificate to that effect. Even though he had been working as an apprentice in an electronic shop at Thalassery, he is intending to start a business meant to repair electronics and electrical items in the petition schedule room. It was also submitted that his son was depending on him for conducting the business in the petition schedule shop room. 5. A reading of the order passed by the Rent Control Court shows that the oral evidence of the parties have been discussed in detail. In fact, one of the main contentions raised before the Rent Control Court was that the son, PW.2 may be trying for a job in Gulf countries as he had obtained a passport in the year 1997 and therefore, there was no immediate requirement for getting eviction of the building. It was also argued by the original tenant that the efforts made by PW.2 to get a job will show that the bona fide need pleaded R.C.R.NO.240/2008 -:3:- is not genuine. The Rent Control Court was of the view that the mere fact that he was trying for a job will not show that the bona fide need pleaded is not genuine. In that view of the matter, it was held that the plea raised by the landlord has been proved. 6. As regards the benefit of the provisos to Section 11(3) of the Act also, the findings are against the tenant. The Appellate Authority has also considered the oral and documentary evidence in detail. It was found that there were no circumstances to doubt the bona fides. PW.2 had the necessary qualification by passing the Trade test in the trade of Electronics-Mechanic and it was only natural that he may start a shop on his own. The argument raised by the tenants that he may go for a job abroad and, therefore his intention to start the repair shop is doubtful has also been considered and met by the Appellate Authority. From the evidence it is clear that the bona fide need pleaded is not genuine. 7. The question is whether in exercise of the powers of revision we must re-examine the evidence to set aside the orders passed by the authorities below. We are of the view that in exercise of the powers of revision, this Court cannot substitute its own views by holding that the view taken by the Appellate Authority is not correct. The question whether the bona fide need is proved or not is a R.C.R.NO.240/2008 -:4:- question of fact. What was argued is that the oral evidence was not properly appreciated. Both the authorities below have concurrently found that the bona fide need pleaded is genuine after a thorough examination of the oral evidence. It cannot be said that the view taken is so perverse warranting interference in exercise of the powers of revision. The view taken is certainly a plausible one and it is not vitiated by any other factors also. 8. As regards the question whether the petitioners are entitled to the benefits of the provisos to Section 11(3) of the Act, the Appellate Authority noticed that the third petitioner herein is a scribe by profession and he has got licence also evidenced by Ext.B1. The Appellate Authority was of the view that there is evidence to show that some of the other petitioners are also having their own income. Ext.A6 series evidence the fact that there are other rooms available in the locality. The only case pleaded is that they may have to pay huge advance and enhanced rent for getting those rooms and rightly that argument cannot prevail. Therefore, it is a case where the tenants have failed to prove that they are entitled for the benefit of both the limbs of the proviso. R.C.R.NO.240/2008 -:5:- 9. In that view of the matter, we find no reason to interfere with the orders passed by the court below. Revision petition is, hence, dismissed. 10. However, considering the fact that the petitioners are continuing business in the tenanted premises, we think it is only appropriate to grant a reasonable time to surrender vacant possession of the building. Accordingly, the eviction ordered by the authorities below is affirmed and the execution of which will stand deferred for a period of four months on the following conditions:- i. That the petitioners herein shall file an undertaking in the form of an affidavit before the Execution Court agreeing to surrender vacant possession of the premises on or before the expiry of four months from today and such undertaking shall be given within a period of three weeks from today. That they shall also deposit the entire arrears of rent, if any, less whatever that has been deposited, within the aforesaid period of three weeks before the Execution Court. ii. That they shall not induct any third party into the premises. R.C.R.NO.240/2008 -:6:- iii.That they shall continue to pay the amount equivalent to the monthly rent for use and occupation, until vacant possession of the premises is surrendered to the landlord. In case of failure to comply with any of the aforesaid conditions, the order of eviction passed by the authorities below shall become enforceable forthwith. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms