IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 RCRev..No. 360 of 2010() ------------------------ RCA.3/2007 oF ADDL. RENT CONTRO APPELLATE AUTHORITY/ADDL.DISTRICT COURT-I,MAVELIKKARA RCP.4/2006 OF RENT CONTROL COURT/ MUNSIFF COURT,CHENGANNUR .................... REVISION PETITIONER/APPELLANT/PETITIONER ------------------------------------------------------------------------- SARAMMA THOMAS, AGED 65 YEARS, PUTHEN PEEDIKAYIL, KEEZHCHERIMEL MURI, CHENGANNUR VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT/RESPONDENT/RESPONDENT ------------------------------------------------------------- SADASIVAN PILLAI, AMBADI VEETTIL, MAZHUKKEER KEEZHMURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK, PIN 689121. BY ADV. SRI.P.VINODKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 8.6.2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCRev..No. 360 of 2010() ----------------------------------- IA 2898/2010 IN RCR NO.360/2010 CLOSED 8.6.2011 Sd/- PIUS C.KURIAKOSE, JUDGE Sd/- N.K.BALAKRISHNAN, JUDGE / TRUE COPY / P.A. TO JUDGE VK PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.360 of 2010 ---------------------------------------------------- Dated this the 8th day of June, 2011 Order Balakrishnan, J. The landlady is in revision. She sought eviction of two shop rooms filing R.C.P.Nos.3/06 and 4/06. The room mentioned in R.C.P.No.4/06 which is the subject matter of this revision is facing the main road. She claimed eviction under Section 11(3) of the Act. The need projected by her is to start business in stationary articles and ladies store. The tenant resisted the petition contending that the need projected by the landlady is only a pretext for eviction. She also contended that she is entitled to the benefit of the second proviso to Section 11(3) of the Act. 2. R.C.P.Nos.3/06 and 4/06 were tried together and a common order was passed. In R.C.P.No.3/06 also it was contended by the landlady that she requires the petition schedule building mentioned therein to start business in stationary articles and ladies store. That is the bonafide need set up in RCR 360/10 2 R.C.P.No.4/06 also. The learned Rent Controller allowed R.C.P.No.3/06. The appeal filed by the tenant against the order of eviction was dismissed by the Rent Control Appellate Authority. The learned counsel for the revision petitioner-landlady would submit that execution petition has not been filed for getting delivery of the building in R.C.P.No.3/06 since the landlady is waiting orders in this case since her need is to start business in both the rooms after getting delivery of both the buildings. The need projected in this case, R.C.P.No.4/06, was found against by the learned Rent Controller stating that the landlady did not state in the petition that she was in possession of another building and that she is also having a room upstair of the same building. The second proviso to Section 11(3) was not adverted to by the Rent Control Court holding that the need projected by the landlady in this case is not proved. The Appellate Authority also concurred with the view taken by the Rent Control Court that the need projected by the landlady is not established. The learned Appellate Authority did not enter a finding regarding the protection claimed by the tenant under the second proviso to Section 11(3). RCR 360/10 3 3. The learned counsel for the revision petitioner-landlady would submit that there was total non-consideration of evidence adduced by the revision petitioner. The finding that the landlady should be non-suited because she did not disclose in her petition the factum of existence of another building and so she is not entitled to claim eviction under Section 11(3) is wholly errornious since the evidence on record would show that the other building was the residential building and was in the occupation of the tenant. It was not as if a similar suitable vacant room was available with the landlady at the time of filing the petition suitable for her purpose the suppression of which may tell upon the bonafides or to attract the embargo contained in the first proviso. In the light of the evidence on record that the other building was a residential building in the occupation of another tenant, the Appellate Authority was not justified in negativing the claim putforward by the landlady, it is argued. 4. So far as the actual need is concerned, the consistent case of the landlady is that this room and the room mentioned in R.C.P.No.3/06 are needed for her to start the business in stationary and ladies store. Both rooms are required by her to RCR 360/10 4 start the business. Evidence to that effect has been given by P.W.1. There is no reason to disbelieve the evidence given by P.W.1. We have also scanned the evidence produced by the landlady. A wholly erroneous approach was taken by the courts below. We are convinced that there is cogent and convincing evidence to substantiate her case that both the rooms are bonafide needed for her to start the business as proposed. Therefore, we hold that the bonafide need projected by her is true. It was also contended before the courts below that a room is available in the first floor portion of the building and that could have been used by the landlady. It cannot be denied that the room upstairs is not suitable or ideal room for starting business when the landlady can conduct business conveniently and profitably in the rooms situated down stairs. 5. Coming to the entitlement of the second proviso to Section 11(3), both the courts below did not enter a definite finding. We are told that sufficient evidence is already on record and evidence was also let in by both sides. But since no finding has been entered by the learned Appellate Authority, we are inclined to remand the matter to the learned Appellate Authority RCR 360/10 5 to decide the question whether the claim for protection putforward by the tenant under second proviso to Section 11(3) is sustainable. Thus by holding that the bonafide need projected by the landlady is true, the case is remanded to the Rent Control Appellate Authority to enter a definite finding with regard to the two limbs of the second proviso and to find whether the tenant is entitled to protection of the second proviso to Section 11(3) of the Act. Both parties are directed to appear before the Rent Control Appellate Authority on 30th June, 2011. The Appellate Authority will pass the revised judgment as expeditiously as possible, at any rate, within six weeks of the parties entering appearance. The revision is allowed as above. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 360/10 6 RCR 360/10 7