IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 RCRev..No. 282 of 2008() ------------------------ RCA.24/2005 of DISTRICT COURT, MANJERI RCP.29/2004 of MUNI-MAGI.COURT,PONNANI .................... PETITIONERS/APPELLANTS/ RESPONDENTS ----------------------------------------------------- 1. MUHAMMED ABDURAHIMAN, AGED 50 YEARS, S/O.K.BEERAN, THERUVATHU VEETTIL, OM THRIKOVU RAOD, PONNANI-679577. 2. NOORUDHEEN, AGED 48 YEARS, S/O. K.BEERAN THERUVATHU VEETTIL, OM THRIKOVU ROAD, PONNANI-679577. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.J.R.PREM NAVAZ SRI.T.RAMPRASAD UNNI RESPONDENT(S): RESPONDENTS/PETITIONER ------------------------------------- 1. PUTHENVEETTIL ABDUL SALAM, S/O.MANAMKULATHU MOIDEENKOYA, GURUVAYOOR AMSOM, PALAYUR DESOM, CHAVAKKAD TALUK,THRISSUR DIST.R/B THE P/A HOLDER MR.SHAMSUDHEEN, S/O.MANAMKULATHU MOIDEENKOYA, GURUVAYOOR AMSOM, PALAYUR DESOM, CHAVAKKAD TALUK, THRISSUR DIST(2ND RESPONDENT) 2. SHAMSUDHEEN, S/O.MANAMKULATHU MOIDEENKOYA, GURUVAYOOR AMSOM, PALAYUR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. ASHRAF S/O.MANAMKULATHU MOIDEENKOYA, GURUVAYOOR AMSOM, PALAYUR DESOM, CHAVAKKAD TALUK, THRISSUR DIST,R/B THE P/A HOLDER MR.SHAMSUDHEEN, S/O.MANAMKULATHU MOIDEENKOYA, GURUVAYOOR AMSOM, PALAYUR DESOM, CHAVAKKAD TALUK, THRISSUR DIST. (2ND RESPONDENT HEREIN). RCR.NO.282/08 4. MAJEED, S/O.MANAMKULATH MOIDEENKOYA, GURUVAYOOR AMSOM, PALAYUR DESOM, CHAVAKKAD TALUK, THRISSUR DIST.R/B. P/A.HOLDER MR.SHAMSUDHEEN, S/O.MANAMKULATHU MOIDEENKOYA, GURUVAYOOR AMSOM, PALAYUR DESOM, CHAVAKKAD TALUK, THRISSUR DIST. (2ND RESPONDENT HEREIN) ADV. SRI.JOHN JOSEPH VETTIKAD FOR RPTS. SRI.C.JOSEPH JOHNY FOR RPTS. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.282 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2009 ORDER Barkath Ali, J. In this rent control revision under Section 20 of the Kerala Buildings ( Lease and Rent Control) Act 1965, the defeated tenants challenge the order of eviction passed against them by the Rent Control Court, Ponnani in R.C.P.No.29/2004 under Section 11(2), 11(3), 11(4) (iii) and 11(8) of the Act, which is confirmed by the Appellate Authority in R.C.A.No. 24/2005 by judgment dated 18/10/2008. 2. The revision respondents/landlords filed R.C.P.No.29/2004 before the Rent Control Court, Ponnani against the revision petitioners/tenants seeking eviction under Sections 11(2), 11(3), 11(4) (iii) and 11(8) of the Rent Control Act alleging that the tenants have kept rent in arrears from December 21, 2001 onwards, that landlords bonafide require the petition schedule shop room for conducting textile business, that the landlords intend to provide a staircase to the upstairs portion of the building from the petition schedule room, that tenants are not depending for their livelihood on the income derived from the RCR.No.282/2008 2 business conducted in the petition schedule shop room, that there are other suitable rooms available in the locality to conduct their business and that tenants have other rooms in their possession. 3. The revision petitioners/tenants resisted the claim contending that they have not kept the rent in arrears, that the bonafide need put forward by the landlords is not genuine, that second respondent in the rent control petition has shifted his residence and business to another building and that first petitioner is depending for his livelihood on the income derived from the business conducted in the petition schedule building. 4. The second petitioner in the rent control petition who is the second respondent in the revision petition was examined as PW1 and Exts.A1 to A7 were marked on the side of the landlords before the Rent Control Court. Advocate Commissioner was examined as CW1 and his report and plan were marked as Ext.C1 and C2. Exts.X1 to X4 were also marked. On the side of the tenants, RW1 was examined . 5. The Rent Control Court on an appreciation of evidence allowed the Rent Control Petition on all grounds. On appeal by the RCR.No.282/2008 3 tenants, the Appellate Authority ( District Judge), Manjeri confirmed the said findings of the Rent Control Court. Now the tenants have come up in revision. 5. The point which arises for consideration is whether the concurrent findings of the Rent Control Court as well as that of the Appellate Authority ordering eviction under Section 11(2), 11(3), 11(4) (iii) and 11(8) of the Act can be sustained ? 6. As regards the order of eviction passed under Section 11(2) of the Act, it is not seen challenged by the revision petitioners. Therefore, we confirm the said order passed by the Rent Control Court which is confirmed by the Rent Control Appellate Authority. The tenants shall deposit arrears of rent to get the order vacated under Section 11(2)(c) of the Act within one month from this date. 7. Regarding the claim for eviction under Section 11(4)(iii) of the Act, it is admitted by the revision petitioners that second revision petitioner is not doing any business in the petition schedule building and that few years ago, he started a new business in another shop room about 100 metres away from the petition schedule building. The first RCR.No.282/2008 4 revision petitioner as RW1 before the Rent Control Court admitted that he is in possession of two shop rooms nearby, where he keeps the stock in trade. The Commissioner has also reported about the said room. It is settled law and held in Jess Raphel v. Regina (2003 KLT SN 9) that burden is on the tenant to prove that the building in possession is not reasonably sufficient to conduct his business. The tenants have not adduced any evidence to establish the above point. That being so, the Rent Control Court as well as the Appellate Authority are justified in finding concurrently that landlords are entitled to an order of eviction under Section 11(4)(iii) of the Act and we confirm the same. 8. Regarding the claim for eviction on the ground of bonafide need for additional accommodation, the case of the landlords is that they intend to start a textile business in the petition schedule building and that the petition schedule room is required to provide a staircase to the up stair of the building . 9. Sri.K.Ramkumar, learned senior counsel for the revision petitioners/tenants citing the decision in Albert Mendez v. Rema Chandran (2007(3) KLT 23) argued that dependency has to be pleaded RCR.No.282/2008 5 and proved, that in the present case the landlords have not pleaded that revision respondents 2 and 3 and their children are dependent on the first revision respondent with whom revision respondents 2 and 3 intend to start the business and further the landlords have several other buildings of their own and that therefore the bonafide need put forward by the landlords is not genuine. We are unable to agree. It is not disputed that dependency has to be pleaded and proved. It is settled law and held in Krishnan Thampi v. Sankaradas (2002(1)KLT 930) that dependency does not mean financial dependency, but dependency for the building which belongs to the landlord. 10. Sri.K.Ramkumar, learned senior counsel for the tenants took us through the Rent Control Petition as well as the the evidence of PW1. On going through the Rent Control Petition, we feel that there is sufficient pleadings regarding the dependency of the revision respondents and their sons. But in evidence, PW1 did not say in so many words regarding the dependency of other revision respondents. But he has stated that the sons of revision respondents have no job of their own. But in our view the question of dependency does not arise in RCR.No.282/2008 6 this case. Revision respondents 2 and 3 are also the landlords. They need not plead and prove dependency as they bonafide need the petition schedule shop room to conduct a textile business. The specific case of the landlords is that they require the petition schedule room to have an access to the upstairs by providing staircase in that petition schedule room. Admittedly, the up stair portion of the building is vacant and is in the possession of landlords and the landlords have no other buildings in their possession in Ponnani Taluk. Therefore, we find no merit in the above argument advanced by the learned senior counsel for the revision petitioners and reject the same. 11. It was next argued by Sri.Ramkumar, learned senior counsel for the revision petitioners that PW1 admitted in cross examination that himself and his brothers have a big shopping complex in Chavakkad and have several other business establishments and that therefore it is very unlikely that they will start any business in the petition schedule building and that therefore the bonafide need put forward by the landlords is only a pretext for evicting the tenants. We do not agree. Merely because the landlords have several other establishments, they are RCR.No.282/2008 7 not prevented from starting any business in the petition schedule building. Further, all their business establishments are in Chavakkad which is about 25-30 Kms. from Ponnani. Sri.John Joseph Vettikkad, learned counsel for the landlords submitted that landlords actually intend to start textile business in the petition schedule building. The tenants have no case that the said building is not suitable to start textile business. For all these reasons, we confirm the findings of the Rent Control Court as well the Appellate Authority that the landlords bonafide require the petition schedule building to start textile business. 12. The next question for consideration is whether the tenants are entitled to the benefit of first and second provisos to Sub Section 3 of Section 11. On this point also, both the courts below have concurrently found against the tenants. Admittedly, the second revision petitioner is conducting a business in a nearby building and the first revision petitioner is conducting a ration shop in another shop room. Exts.X1 to X4 show that first revision petitioner is the licencee of the shop for conducting the business therein. The first revision petitioner as RW 1 would say that the said ration shop was conducted by somebody RCR.No.282/2008 8 else though licence is in his name which is not proved. RW1 has not adduced any evidence to show the income from his business conducted in the petition schedule shop room and from the ration shop. Further in cross examination RW1 admitted that there are several other rooms in the locality lying vacant. The Commissioner has also reported about the several closed nearby shop rooms. It is settled law and held in Prasannan v. Haris (2005(2) KLT 365) that tenant has to plead and prove both the ingredients of Second Proviso to Sub Section 3 of Section 11 of the Act. In the present case, tenants have failed to prove that aspect. Therefore, both the courts below is justified in finding this point against the tenants. We confirm the said findings of the Rent Control Court and the Appellate Authority. 13. Sri.K.Ramkumar, learned senior counsel pointed out that admittedly the landlords are in possession of other buildings which dis- entitle them to claim eviction under Section 11(3) of the Act as provided under first proviso to Sub Section 3 of Section 11 of the Act. Sri.John Joseph Vettikkad, learned counsel for the landlords correctly pointed out that all the buildings in the possession of the landlords are in Chavakkad RCR.No.282/2008 9 about 25-30 Kms from Ponnani where the petition schedule building is situated. That being so, we find no merit in the above argument advanced by the learned senior counsel and hold that tenants are not entitled to the benefit of first proviso to Sub Section 3 of Section 11. 14. We therefore confirm the findings of the Rent Control court as well as the Appellate Authority ordering eviction under Section 11 (2), 11(3) and 11(8) of the Act. The tenants shall deposit arrears of rent as ordered by the courts below and get the order under Section 11(2) of the Act vacated. Learned counsel for the landlords submitted that after getting eviction under Section 11(3) of the Act, revision respondents 1 and 2 will occupy the same and that they will start business along with other landlords. If they do not occupy the petition schedule building within one month from getting vacated, the tenants can apply to the Rent Control Court for getting themselves re-inducted in the building under Section 11(12) of the Act. The landlords counsel submitted that the landlords are agreeable to suffer the above direction. 15. Sri.K.Ramkumar, learned senior counsel requested atleast one year's time for vacating the building, which is opposed by Sri.John RCR.No.282/2008 10 Joseph Vettikkad, learned counsel for the respondents. Taking into consideration the fact that the tenants are conducting business in the petition schedule building, we feel that time till 31/03/2010 can be granted to vacate the building on the following conditions; 1) The tenants shall file an affidavit before the Rent Control Court within one month from today stating that they will surrender petition schedule room to the landlords on or before 31/03/2010. 2) The tenants shall pay the rent upto date within one month from this date and future rent till the date of surrender as and when the same falls due, failing which the benefit of time granted by this order will not be available for the revision petitioners. The revision petition is dismissed with the above directions. No costs. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.282/2008 11 RCR.No.282/2008 12