IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 RCRev..No. 46 of 2009() ----------------------- RCA.20/2005 of ADDL.RENT CONTROL APPELLATE AUTHORITY,KOTTAYAM RCOP.12/2002 of ADDL.RENT CONTROL COURT, KOTTAYAM. .................... REVISION PETITIONER:APPELLANT:RESPONDENT: ----------------------------------------------------------------------------- E.T.VARGHESE, S/O.THOMAS, AGED ABOUT 82 YEARS, EDAYADIYIL HOUSE, C/O. UNITED TRADERS P.O.BOX NO.67, NIDHIRI BUILDINGS, K.K.ROAD, KOTTAYAM. BY ADVS. MR.JACOB SEBASTIAN, MR.S.SANTHOSH KUMAR (BALARAMAPURAM). RESPONDENT(S): RESPONDENT:PETITIONER: ---------------------------------------------------------------------- ANOOP JOHN NIDHIRI, AGED 32 YEARS, NIDHIRI HOUSE, 48/28 TOC-H SCHOOL ROAD, VYTTILA , P.O.ERNAKULAM. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON 06/04/2009 PASSED THE FOLLOWING: Kss C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R NO: 46 OF 2009 ----------------------------------------------------------------------------------- Dated this the 2009. O R D E R SURENDRA MOHAN, J. Revision petitioner is the tenant. He is conducting a business in raw rubber in the name and style Messrs. United Rubbers. He has been conducting the said business for the past 65 years. The petition schedule shop room is used as its office. He has another room in his possession in the same building, on the northern side which is used as his godown. According to him, both the rooms are necessary for him to run his business. 2. The respondent is the owner of the building. He filed RCP 12/2002 demanding vacanct possession of the schedule shop room alleging grounds under Sections 11(3)and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the 'Act'. According to the landlord he is a person engaged in collection and sale of old coins, currencies, stamps and other cureous. He is deeply interested in philately. He is a member of various clubs and organisations dealing in those articles. According to him he needs the petition schedule room for starting an office RCR 46/2009 2 and sales depot of the above articles. He contends that the building which is situated by the side of the K.K.Road is ideally suited for his business. He also alleged that the other room in the possession of the tenant was reasonably sufficient for his business. Therefore he claimed eviction of the tenant. 3. The need of the landlord is opposed by the tenant. According to the tenant, collection of stamps and coins is only a hobby which the landlord can conduct even from his residence at Ernakulam. He pointed out that the landlord had filed RCP 1/2002 for eviction of the tenant in another shop room in the same building, for his own personal requirements, the same was compromised but a room is kept vacant and locked by the landlord. If the landlord wanted to start any business, he could very well do in that room that was in his possession. According to him the need projected was only a rouse for eviction. The plaint schedule shop room is in his possession on a monthly rent of Rs.400/- and he was continuing in possession paying the rent regularly and without delay or default. He therefore prayed for dismissal of the rent control petition. RCR 46/2009 3 4. The Rent Control Court tried the petition on the above pleadings. Evidence was adduced by both sides. The evidence on the side of the landlord consists of the oral testimonies of P.Ws 1 and 2 and Exts.A1 to A9 documents were marked. C.P.Ws 1 and 2 were examined on the side of the tenant and Exts.B1 to B5 series documents were marked. Ext.X1, copy of the vacancy register of the Kottayam Taluk has also been marked. 5. After considering the evidence on record, the Rent Control Court found that the tenant is not entitled to the benefit of the second proviso to Section 11(3). Under Section 11(4)(iii), the Court found that the tenant was in possession of another shop room that was reasonably sufficient for his requirement. Therefore, eviction was ordered on both the grounds. 6. The order of the Rent Controller was challenged by the tenant before the Rent Control Appellate Authority, Kottayam in RCA 20/2005. At the appellate stage, the tenant took out a commission to inspect and report to the Court, the possession of another shop room that the landlord was having. Accordingly an Advocate Commissioner visited the premises and his report has RCR 46/2009 4 been marked as Ext.C1. The landlord produced Exts.A10 to A13 and the additional documents have also been admitted and marked as evidence of subsequent events. The Appellate Authority thereafter conducted reappraisal of the evidence and material on record and has found that the order of eviction granted by the Rent Control Court on both the grounds are only to be sustained. Therefore, the appeal was dismissed. The above revision is against the said order of the appellate authority. 7. We have heard the counsel appearing for the revision petitioner as well as the respondent-landlord. 8. According to the counsel for the tenant, the collection of stamps coins and currencies etc is only a hobby which a person can conduct from anywhere, including his residence. A shop room in a commercially important locality is not needed for the conduct of such an activity and therefore according to him the need alleged was not bonafide. It is further submitted that both the rooms in the possession of the revision petitioner were being used by him for his business and that both the rooms were necessary for the smooth conduct of his business for the reason that one room was RCR 46/2009 5 used by h im as his office and the other as his godown. Therefore, it is contended that both the authorities below have erred in ordering eviction of tenant. Counsel for the landlord has pointed out that the findings of the authorities below are concurrent and the concurrent findings on questions of fact are not liable to be interfered with by this Court in revision. 9. It is an admitted fact that the landlord is a person engaged in the collection and sale of coins, currencies, stamps and cureous. He also claims to be a member of various clubs and other organisations dealing in the said articles. He is already dealing in such articles from his residence. Therefore, there is nothing wrong in the landlord wanting to start a business in the said articles in a more organised manner from his own shop room. The tenant does not have the right to dictate whether the landlord who conduct his business from his residence or from the schedule shop room. The Rent Control Court has referred to the evidence in detail. The Appellate Authority has also considered the evidence elaborately and has found that the need alleged was bonafide though an Advocate Commissioner had visited the building and has submitted RCR 46/2009 6 Ext.C1 report, there is nothing in the report to suggest that the landlord is keeping another shop room in his possession vacant. The documents produced show that he is in the process of setting up an internet cafe in the said shop room. The finding of the Rent Control Court that the tenant is not entitled to the benefit of the second provision to Section 11(3) of the Act is also justified for the reason that the tenant has not discharged the burden of proving the ingredients of the said proviso, which was squarely on him. 10. Admittedly, the tenant is in possession of two shop rooms in the same building, one that is used by him as his office and the other as his godown. There is no evidence to show that the tenant would not be able to conduct his business if he did not have both his office and godown in the same building. If the petitioner wants his office to be maintained in a commercially important locality, he has the option of shifting his godown to an area of less commercial importance. The tenant has not been able to prove that he would not be able to conduct his business without being in possession of both the rooms. The evidence in the case has been elaborately considered by both the authorities below and it has RCR 46/2009 7 been found that the ground under Section 11(4)(iii) is also made out in the present case. Nothing has been pointed out by the counsel for the revision petitioner to show that the findings of the authorities below are wrong, irregular or improper. Therefore, there are no grounds in the present revision to interfere with the concurrent findings of the authorities below. Revision fails and the same is accordingly dismissed. No costs. C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: