IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 RCRev..No. 106 of 2010() ------------------------ CRA.15/2005 of D.C. & SESSIONS COURT,KOLLAM CRP.17/2002 of PRL.M.C., KOLLAM .................... REVN.PETITIONER/APPELLANT/1ST RESPONDENT ------------------------------------------------------------ REGHUNATHAN NAIR, AGED 52, S/O. PACHAN, M/S.RADHAKRISHNA AGENCIES, VADAKKUMBHAGOM, HOSPITAL ROAD, KOLLAM, RESIDING AT SARASWATHY VILASOM, KOTTAMKARA CHERRY, KOTTAMKARA VILLAGE. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): RESPONDENTS/2ND RESPONDENT -------------------------- 1. A.JAYAKUMAR, AGED 44 YEARS, S/O. LATE ARAVINDAKSHAN PILLAI, BUSINESS, SREE ARAVIND, UDAYAMARTHANDAPURAM, MUNDAKKAL, REP.BY P/A HOLDER A.JAYAPRAKASH, S/O. LATE ARAVINDAKSHAN PILLAI, AGED 42, SREE ARAVIND, UDAYAMARTHANDAPURAM, MUNDAKKAL. 2. K.PRADEEP KUMAR, AGED 36 YEARS, S/O. KARUNAKARAN PILLAI, M/S. REGHU SANITARY STORES, VADAYATTUKOTTA, KOLLAM. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 106 OF 2010 ------------------------ Dated this the 24th day of September, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 by the tenant is the judgment of the Rent Control Appellate Authority ordering eviction against the revision petitioner on the ground under sub Section (3) of Section 11. In fact, the landlord had invoked other grounds also but the ground under sub section (3) of Section 11 is the only ground which survives. The Rent Control Court in the first instant allowed order of eviction under Section 11(3) after holding that the claim of the landlord is bona fide and also that the tenant is not entitled for protection of the second proviso to sub section (3) of Section 11. The Appellate Authority, however, considering the appeal filed by the tenant interfered with the Rent Control Court's order and dismissed the Rent Control Petition mainly on the reason that the landlord, who is put up in Singapore, had not given oral evidence RCR.No.106/2010 2 in support of the need projected by him. According to the Appellate Authority, PW1, the brother and power of attorney holder of the landlord, is not competent to testify regarding the bona fides which is essentially a state of the landlord's mind. The aggrieved landlord approached this Court by filing revision (R.C.R.No.56/2008). This Court confirmed the finding which had been concurrently entered by the Rent Control Court and the Appellate Authority that the tenant is not entitled for protection of the second proviso to sub section (3) of Section 11. This Court, however, set aside the decision of the Appellate Authority disallowing the eviction on the reason that the landlord had not given oral evidence and remanded the appeal to the Appellate Authority giving opportunity to the landlord to adduce oral evidence before the Appellate Authority. Pursuant to that remand order, the landlord came down from Singapore and got himself examined as PW4. The learned Appellate Authority has passed the impugned judgment appreciating the entire evidence including the oral evidence adduced by PW4. Under the impugned judgment, it is found that the bona fides of the need projected by the landlord stands established. After entering RCR.No.106/2010 3 such a finding, relying on the already concluded finding that the tenant is not entitled for protection of the second proviso to sub section (3) of Section 11, the learned Appellate Authority has ordered eviction against the revision petitioner under sub section (3) of Section 11. 2. In this revision various grounds are raised challenging the findings entered by the Appellate Authority including the finding that the tenant is not entitled for protection of the 2nd proviso to sub section (3) of Section 11. 3. Sri.V.Vrij Mohan, learned counsel for the revision petitioner, addressed strenuous arguments before us on the basis of the various grounds raised in the revision. The learned counsel submitted that the need projected by the landlord is just a pretext for evicting the tenant. According to him, the petition schedule building is situated in the heart of Kollam town and the real intention of the landlord is to demolish the building so that he can put up a new commercial building in its place. The learned counsel submitted that during the pendency of the proceedings, the landlord put up an apartment complex consisting of six residential apartments. If the need of the RCR.No.106/2010 4 landlord was bona fide, the landlord could have utilised any one of the apartments for accomplishing the need. The learned counsel submitted that though the newly put up buildings are residential apartments, they are much more suitable than the garage in the landlord's sister's house in which the landlord business is presently accommodated. The learned counsel submitted that it was on the basis of another business, which at that time was being conducted by the tenant, that the Rent Control Court and the Appellate Authority concluded that the business carried on in the petition schedule premises is not the only business of the tenant. During the pendency of the appeal, the tenant became constrained to surrender that building, as a result of which, presently the tenant has no source of income other than the business carried on in the petition schedule building. The learned counsel requested that the question whether the tenant is eligible for protection of the second proviso to sub section (3) of Section 11 be reconsidered. 4. We have very anxiously considered the submissions of the learned counsel. We have gone through the judgment of the Appellate Authority. The only question, that falls for decision RCR.No.106/2010 5 before us, is whether the judgment can be said to be illegal, irregular or improper as contemplated by Section 20 justifying interference in the present jurisdiction. According to us, the above question can be answered only in the negative. The finding that the landlord bona fide needs the building for accommodating his export business has been entered by the Appellate Authority on appreciating documentary as well as oral evidence. Exts.A7, A11, A12, A13, A14 & A15 are documents which establish to the very hilt that the landlord's claim, that he is conducting export business in Kollam also under the name and style of Karthika Exports, is correct. A perusal of the pleadings also will show that the landlord's claim, that he is conducting export business in Kollam and that it is his brother and power of attorney holder is managing the business is not seriously disputed. The thrust of the learned counsel's arguments before us was also that if it becomes necessary it will be possible for the landlord to conduct business in one of the newly constructed residential apartments. The learned Appellate Authority has given cogent reasons for repelling the above argument which was apparently raised before that authority also. According to us, the RCR.No.106/2010 6 tenant is not entitled to insist that the landlord should accommodate his export business in his newly constructed residential apartment in preference to the petition schedule building which is admittedly situated in a commercially important area of the Kollam town. We do not think that the apprehension of the learned counsel that after evicting the tenant the landlord will demolish the building for paving the way for constructing shopping complex is well founded. The same is the position regarding the apprehension that the landlord will not come back from Singapore at all. According to us, sub section (12) of Section 11 of Act 2 of 1965 takes care of these apprehensions. In short, in our opinion, there is no warrant for invocation of the revisional jurisdiction under Section 20 for interfering with the impugned judgment, as we do not find any illegality, irregularity or impropriety tainting the same. The RCR is necessarily has to fail and will stand dismissed. However, we feel that the last request of the learned counsel for grant of some reasonable time for surrendering the building can be considered. Hence, the result is as follows; i). The order of eviction is confirmed and the the revision RCR.No.106/2010 7 petition is dismissed. ii). The Execution Court is directed to keep in abeyance the execution proceedings till 31/3/2011 subject to the following conditions; a). The revision petitioner shall file an affidavit before the Execution Court within two weeks from today undertaking to give peaceful surrender of the building to the respondent landlord on or before 31/3/2011. It will also be undertaken through the same affidavit that he will discharge arrears of rent, if any, within one month and will pay occupational charges for the subsequent period also at the current rent rate without fail. b). The revision petitioner will get benefit of time granted above only if the affidavit as directed above is filed on time. We make it clear that in case the landlord does not occupy the building and start the proposed business within the statutory period, it is open to the tenant revision petitioner to file RCR.No.106/2010 8 application under sub section (12) of Section 11 before the Rent Control Court, in which case, the Court will pass effective order so that the protection granted to the evicted tenant under sub Section (12) of Section 11 becomes meaningful. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk