IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 RCRev..No. 189 of 2009(C) ------------------------------ RCA.127/2007 of RENT CONTROL APPELLATE AUTHORITY/ ADDL. DISTRICT COURT, VADAKARA RCP.85/2005 of RENT CONTROLLER/MUNSIFF COURT, VADAKARA .................... REVN.PETITIONERS/APPELLANTS & RESPONDENTS --------------------------------------------------------- 1. CHANDRI,D/O.KANNAN, VELLOOKKODAKKANDIYIL VEEDU,NELLIYADIKADAVU, KEEZHARIYOOR P.O.,KEEZHARIYOOR AMSOM,DESOM, KOYILANDY TALUK. 2. BALAN,S/O.KANNAN, PULIKKOOL HOUSE,PUTHUPPANAM P.O., VATAKARA TALUK. 3. SUDHEESH @ SUDHEER,S/O.BALAN, PUTHUPPANAM P.O.,VATAKARA TALUK. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.VINEETH KURIAKOSE SRI.GEORGE JOSEPH PULIMOOTTIL RESPONDENT(S): RESPONDENTS & PETITIONERS ------------------------------------------------------- 1. P.KARTHIAYANI,D/O.CHATHU NAIR, SHEENA NIVAS,VILLIAPALLY AMSOM DESOM, VATAKARA TALUK. 2. P.SHYLAJA (DIED),D/O.KARTHIAYANI, SHEENA NIVAS,VILLIAPALLY AMSOM DESOM, VATAKARA TALUK. 3. P.SHYMA,D/O.KARTHIAYANI, KELOTH HOUSE,THIRUVANGOOR P.O., KOYILANDY TALUK. 4. P.SHARMILA,D/O.KARTHIAYANI, LASITHA MANDIR,NUT STREET P.O., VATAKARA AMSOM DESOM,VATAKARA TALUK. 5. P.SHEENA,D/O.KARTHIAYANI, CHAMMANNIYULLATHIL KANNANKODE, THOOVAKKUNI (VIA),THALASSERY. 6. GIREESH BABU, LASITHA MANDIR,NUT STREET P.O., VATAKARA AMSOM DESOM,VATAKARA TALUK. 7. SHINOOP,S/O.SHYLAJA, SHEENA NIVAS,VILLIAPPALLY AMSOM DESOM, VATAKARA TALUK. 8. SHILPA,D/O.SHYLAJA, -DO- -DO- (R7& R8 WERE IMPLEADED AS SUPPL.RESPONDENTS IN THE RENT CONTROL APPEAL AS LEGAL HEIRS OF R2 WHO DECEASED DURING PENDENCY OF THE APPEAL) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.189 of 2009 ------------------------------------------------ Dated this the 10th day of September, 2009 ORDER Pius C. Kuriakose, J The tenant and the alleged sub lessee are in revision impugning the orders of eviction concurrently passed on the grounds of arrears of rent, bona fide own occupation and sub letting. 2. We have gone through the order of eviction passed by the Rent Control Court and the judgment of the Appellate Authority confirming the same. As for the eviction passed on the ground of arrears of rent, we are of the view that since that eviction is a tentative one and is always open to the revision petitioners 1 and 2 to get that order vacated by R. C. R. No.189 of 2009 -2- moving the Rent Control Court after making requisite deposits, we need not interfere with the same. The defence taken by the revision petitioners to the ground of arrears of rent was that more amounts than what was due towards arrears of rent have been expended for maintaining and repairing the building. Obviously, the maintenance and repairs of the building was done by the revision petitioners not pursuant to any order passed by the Accommodation Controller permitting them to carry out repairs or maintenance. This being the situation, we cannot blame the Rent Control Court and the Appellate Authority for having found that an order of eviction is liable to be passed under Section 11(2)(b) since admittedly the arrears alleged was not paid. Even as we confirm the eviction order under Section 11(2)(b), we grant thirty days time more from R. C. R. No.189 of 2009 -3- today to the revision petitioners to move the Rent Control Court under Section 11(2)(c). 3. The need projected by the landlords in the context of sub Section 3 of Section 11 was that the building is required bona fide for conduct of business by the sixth respondent/Gireesh Babu who is the husband of the fourth respondent/Sharmila one of the landladies. The defence of the revision petitioners was that Sri.Girish Babu is having private bus service and that various other businesses including money lending and in real estate. The only item of evidence produced by the revision petitioners to prove his allegation was Ext.B1 deposition given by Girish Babu in the year 2000 in a private complaint filed by him. The authorities below found that Ext.B1 cannot be evidence to hold that at the relevant time i.e. in the R. C. R. No.189 of 2009 -4- year 2005, Girish Babu is having bus service and other businesses as it was noticed that barring Ext.B1 there was no evidence on the basis of it could be held that Girish Babu was having any other business. Relying on judicial precedent, it was held that the circumstance that the fourth respondent/Girish Babu's wife was having other businesses cannot stand in the way of she and her husband conceiving a need for the husband to do independent business. 4. Having gone through the orders of the Rent Control Court and the judgment of the Appellate Authority, we find that the finding of those authorities that the building is required bona fide for occupation by Sri.Girish Babu does not suffer any illegality, irregularity or impropriety warranting corrections under Section 20. R. C. R. No.189 of 2009 -5- 5. Sri.Vineeth Kuriakose argued that the finding of the authorities below that the tenant is not entitled to the protection of the second proviso is erroneous. But we notice that the tenant himself conceded that he had not made any enquiry regarding the availability of alternate building in the locality for him to shift, in the event of eviction. This means that the tenant has not made even a serious endeavour to establish that he satisfies the second ingredient of the second proviso. If the tenant does not satisfy the second ingredient of the second proviso, he cannot be entitled for the protection of second proviso since both the ingredients are in the conjunctive. The above discussions should inevitably lead to the conclusion that the order of eviction passed under Section 11(3) is liable to be confirmed. R. C. R. No.189 of 2009 -6- 6. Sri.Vineeth Kuriakose submitted that the alleged sub lessee/the third revision petitioner is the grandson of the original tenant and that his version is that he is only managing the business of the tenant as a member of the family. According to the learned counsel, the inference drawn by the Rent Control Court and the Appellate Authority on the basis of the continued presence of the third revision petitioner in the premises was rash and not at all justified. We do find merit in the above submission of Sri.Vineeth Kuriakose. But since we have already confirmed the order of eviction passed under Section 11(3), we are not inclined to examine the correctness of the order of eviction passed under Section 11(4)(i). 7. As his last request Sri.Vineeth Kuriakose sought for one year's time to surrender the premises. R. C. R. No.189 of 2009 -7- We are not inclined to grant so much of time. However, we grant time till 31/03/2010 to the revision petitioners for surrendering the premises subject to the following conditions:- 1) The revision petitioners shall file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to give peaceful surrender of the building to the petitioners in the RCP on or before 31/03/2010. It shall also be undertaken through the affidavit that the entire arrears of rent as found by the Rent Control Court will be paid within one month and that occupational charges at the current rent rate will also be paid till date of actual surrender without fail. If such an affidavit is filed on time, the execution court will not order or effect delivery till 31/03/2010. R. C. R. No.189 of 2009 -8- 8. This RCR is dismissed subject to the above conditions. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-