IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 CRP.No. 2138 of 2001(B) ----------------------- RCA.241/1989 of THE RENT CONTROL APPELLATLE AUTHORITY , KOZHIKODE RCP.130/1986 of THE RENT CONTROL COURT, KOZHIKODE-I .................... REVN. PETITIONERS/APPELLANTS/RESPONDENTS: ---------------------------- 1. NARAYANI, W/O.KUNHUTTY, RESIDING AT VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK. 2. RAJAN, S/O. LATE KUNHUTTY, RESIDING AT -DO- -DO- 3. BABY, S./O.LATE KUNHUTTY, RESIDING AT -DO- -DO- 4. NEENA, D/O. LATE KUNHUTTY, RESIDING AT -DO- -DO- 5. GEETHA, D/O. LATE KUNHUTTY, RESIDING AT -DO- -DO- 6. VINODINI, D/O.LATE KUNHUTTY, REESIDING AT -DO- -DO- 7. PREETHA, D/O.LATE KUNHUTTY, RESIDING AT -DO- -DO- 8. PRADEEP KUMAR, S/O.LATE KUNHUTTY, RESIDING AT -DO- -DO- BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENTS/RESPONDENTS/ L.RS. OF THE PETITIONER: ------------------- 1. K. ALIKOYA, S/O.LSATE LUSSANKOYA HAJI, RESIDING AT MANKAVU, VALAYANAD AMSOM, DESOM, KOZHIKODE TALUK. 2. MAMMED KOYA, S/O.LATE USSANKOYA HAJI, RESIDING AT MANKAVU, -DO- -DO- 3. KADEESSABI, W/O. LATE LUSSANKOYA HAJI, RESIDING AT -DO- -DO- -2- CRP.NO.2138/01 4. BEEVI, D/O.LATEL USSANKOYA HAJI, RESIDING AT MANKAVU, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK. 5. NASEEMA, D/O.LATEL USSANKOYA HAJI, -DO- -DO- 6. ZEENATH, D/O.LATE USSANKOYA HAJI, -DO- -DO- 7. AYISSABI, W/O.LATE USSANKOYA HAJI, -DO- -DO- 8. MUJEEB, S/O.LATE USSANKOYA HAJI, -DO- -DO- 9. FAISAL, S/O.LATE USSANKOYAL HAJI, -DO- -DO- 10. RAOOF, 14 YEARS,(MINOR), S/O.LATE USSANKOYA HAJI, -DO- -DO- REPRESENTED BY GUARDIAN, 7TH RESPONDENT, AYISSABI. ADDL. 11. AYISHA, W/O.LATE MAMMED KOYA, RESIDING AT AMETH HOUSE, QUILANDY P.O. '' 12. RIYAS, S/O.LATE MAMMED KOYA, -DO- , -DO- '' 13. RASHID, S./O.LATE MAMMED KOYA, -DO- -DO- '' 14. SHABABNA, D/O.LATE MAMMED KOYA, -DO- -DO- '' 15. SAJINA, D/O.LATE MAMMED KOYA, -DO- -DO- (ADDL. RESPONDENTS 11 TO 15 ARE IMPLEADED AS PER ORDER IN I.A.NO.2017/2003 DATED 1/12/2008) ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.P.NO.4613/2001 IN CRP.NO.2138/2001 ------------------------ DISMISSED Sd/- P.R.RAMAN, JUDGE. 1/12/2008 Sd/- T.R.RAMACHANDRAN NAIR, JUDGE. P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ------------------------------- C.R.P.NO.2138 OF 2001 ------------------------------- Dated this the 1ST day of December,2008 O R D E R Ramachandran Nair,J . Petitioners are aggrieved by the order of eviction passed by the Rent Control Court, which was partly upheld in one of the grounds by the Appellate Authority. 2. The main facts briefly stated are the following: The landlord sought eviction under Sections 11(3) and 11(4) (iii) of the Kerala Buildings (Lease and Rent Control) Act. Originally the building was leased out to one Kunhutty. After his death, the tenants are in possession of the building. They are doing vegetable business in the petition schedule building. They are in occupation and possession of two rooms bearing Nos.24/523 and 24/524 and these rooms are remaining vacant and kept locked. Another room No.24/643 was purchased by them from one Kannan -2- C.R.P.No.2138/2001 Menon and the same is also in their possession. The landlord sought eviction on the ground of bona fide need for conducting business by his son, Mammed Koya, who was not having any avocation in life and he was depending upon the landlord for his livelihood. 3. The tenants opposed the prayers on various grounds. PWs.1 and 2 were examined on the side of the landlord and on the side of the tenants RW-1 was examined. Exts.C1 and C2 were also marked in this case. 4. As regards the bona fide need, the Rent Control Court found in favour of the landlord. It was found that his son was not having any avocation and he is depending upon his father for his livelihood. The benefit of the second proviso was found against the tenants and accordingly, eviction was ordered under Section 11(3) of the Act. As regards the ground under Section 11(4)(iii), the Rent Control Court, after accepting the contention of the landlord, found that the tenants are in possession of three rooms and passed an order of eviction under Section 11(4)(iii) of the Act. -3- C.R.P.No.2138/2001 5. In appeal the Appellate Authority set aside the order of eviction passed by the Rent Control Court in respect of the ground pleaded and proved under Section 11(3) of the Act; but confirmed the order of eviction passed under Section 11(4)(iii) of the Act, against which this revision petition is filed by the tenants. 6. The tenants contended that the landlord failed to prove by adequate evidence that they are in possession of other buildings and there was no specific prayer in the rent control petition also for eviction under Section 11(4)(iii). 7. We have read through the orders passed by the authorities below. As regards the rooms in possession of the tenants are concerned, there is clear allegation that they are in possession of room Nos.24/523 and 24/524 in addition to the petition schedule building. There is also an allegation that another room No.24/643 was also purchased by them. After referring to the evidence in the case, the Rent Control Court found that room No.24/523 is the one adjacent to the petition schedule building. While examined as RW1 he admitted that he is using this room for storing articles for the -4- C.R.P.No.2138/2001 business. Regarding room No.24/524 he also stated that it is used for keeping empty vegetable wooden boxes. Another contention raised was that room No.24/524 was exclusively in the name of the 2nd respondent. But no material evidence was produced in support of the said contention. Accordingly, it was held that room Nos.24/523 and 24/524 are in joint possession of the respondents as heirs of the tenant-Kunhutty. That is a clear finding regarding the joint possession. Accordingly, the elements under Section 11(4) (iii) have been proved by adducing evidence. These findings have been affirmed by the Appellate Authority, after elaborately considering the pleadings and evidence. The report of the Commissioner was also adverted to by the Appellate Authority. Even though in prayer portion Section 11(3) of the Act alone was shown, there was clear averments made in para 3 of the rent control petition. Both the parties have understood the plea and the tenants have disputed the claim by specifically placing averments regarding the said plea. The Rent Control Court has made a specific issue on that aspect and both the parties have adduced evidence also. -5- C.R.P.No.2138/2001 Therefore, we cannot accept the argument raised by the petitioners that in the absence of any specific prayer in the rent control petition, the authorities below ought not have ordered eviction. Therefore, the finding that tenants are in joint possession of two rooms situated adjacent to the petition schedule shop room cannot be said to be perverse. The decision is clearly arrived in evidence and the conclusions cannot be said to be initiated by any other circumstances. Therefore, no interference is called for in this revision against the said findings. Hence, we confirm the order of eviction passed under Section 11(4)(iii) of the Act and dismiss the C.R.P. 8. However, we grant three months' time to the petitioners/tenants for surrendering vacant possession of the building on the following conditions: i) Petitioners/tenants shall file an undertaking in the form of an affidavit agreeing to surrender vacant possession of the building within three months and also deposit the entire arrears of rent, if any, both within a period of one month from today before the Rent Control Court. -6- C.R.P.No.2138/2001 ii) They shall continue to pay the amount equivalent to the rent for use and occupation of the building till the vacant possession is surrendered. iii) They shall not induct any third parties to the tenanted premises. iv) On the aforesaid conditions the execution proceedings will stand deferred for a period of three months. v) In case of failure to comply with the aforesaid conditions, the order of eviction passed will become enforceable forthwith. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv. 1