IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 RCREV..NO. 74 OF 2007(D) ------------------------------ RCA.32/2006 OF RENT CONTROL APPELLATE AUTHORITY ( D.C. & SESSIONS COURT), KOZHIKODE RCP.1/2005 OF RENT CONTROLLER( MUNSIFF COURT), KOYILANDY .................... PETITIONER/APPELLANT/1ST RESPONDENT: ----------------------------------------------------- T.K. RAFEEKH, S/O.MAMMOOTY, RESIDING AT BISHARATH MANZIL, AZHIYUR, VATAKARA TALUK, KOZHIKODE. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S)/RESPONDENT/PETITIONER : ---------------------------------------------------- PUTIYAVEETTIL IBRAHIMKUTTY, S/O.ABDURAHIMAN MUSALIYAR, RESIDING AT PANTHALAYANI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. ADV. SRI.SANTHARAM.P FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/02/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Order on I.A.No.594/07 In RCR 74/07 25-2-2011 Dismissed Sd/- PIUS C. KURIAKOSE,JUDGE. Sd/-N.K. BALAKRISHNAN,JUDGE. [true copy] P.S.to Judge. PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 74 OF 2007 = = = = = = = = = = = = = = = = Dated this the 25th day of February, 2011. O R D E R Balkrishnan,J. The challenge in this revision is the order of eviction concurrently passed by two statutory authorities u/S. 11(3) of Act 2 of 1965. The landlord contended that he was in gulf countries for some time and he lost his job in the gulf country and came back to his native place. He bonafide needs the petition schedule building to start a Hotel business. He had experience in conducting hotel business when he was in gulf country. He has no other building of his own suitable to conduct the hotel business. The room in the upstair portion of the building was rented out to one Ramachandra Nama Deva Yadav R.C.R. NO. 74 OF 2007 -:2:- and he is conducting business in silver jewellery. It was also contended that the tenant is not depending on the petition schedule building for his livelihood. 2. After analysing the evidence adduced by the parties the Rent Control Court ordered eviction u/s 11(3) and u/s 11(4)(i) of the Act. In appeal the Rent Control Appellate Authority, after reappreciating the entire evidence, confirmed the order of eviction passed u/s 11(3) but reversed the order u/s 11(4)(i). We have gone through the order passed by the learned Rent Controller and also the judgment of the learned Appellate Authority. There is evidence to show that PW1, the landlord lost his job and came back to his native place prior to the filing of the rent control petition. The Evidence would show that his main income is the R.C.R. NO. 74 OF 2007 -:3:- rent he is getting in respect of the room that is occupied by Ramachandra Nama Deva Yadav. PW1 has only having 12 cents of land wherein he is residing with his family. It has further come out in evidence that the landlord is not having any other building of his own so as to start the hotel business. 3. It was contended by the tenant that there is no necessity for the landlord to conduct the Hotel Business and actually he intends to go back to gulf country. The copy of the passport was produced. Further the landlord expressed his willingness to produce the original passport also. Subsequently the original passports were also produced before the appellate Court and were marked as Exts.A7 and A8. Those factors were taken into consideration by the learned Appellate Authority to negative R.C.R. NO. 74 OF 2007 -:4:- the contention raised by the tenant that the landlord would return to the gulf country and will not conduct the hotel business. It was further found by the learned Appellate Authority that PW1 is not having any other business or any other avocation so as to earn his livelihood for himself and his family members. After a thorough reappraisal of the evidence the learned Appellate Authority found that the need projected by the landlord is genuine and honest and is not prompted by extraneous considerations or with ulterior motives. 4. Smt. Prabha R. Menon, learned counsel appearing for the revision petitioner has argued at length contending that the tenant is actually entitled to the protection under the second proviso to S.11(3) of the Act. So far as the first limb of the second proviso is concerned R.C.R. NO. 74 OF 2007 -:5:- the landlord has a case that the revision petitioner is engaged in bakery business in Room No.18/548 under the name and style 'Blossom Bakery'. But the revision petitioner contended that the said bakery though originally belonged to his father, after his demise, devolved upon his mother and four children. It was further contended that the said bakery is actually run by his mother in respect of which Exts.B1 to B3 were relied upon. Ext.B1 is the registration certificate dated 8.1.2001 issued by the Assistant Labour Officer, Koyilandy. Exts.B2 and B3 are receipts dated 28.2.2005. These documents were produced to show that it is the mother of the revision petitioner who is the licencee of 'Blossom Bakery'. Learned counsel for the revision petitioner would submit that some more documents were produced by the tenant R.C.R. NO. 74 OF 2007 -:6:- before the appellate court but those documents were not received in evidence or considered by that Court and so the tenant has actually denied the opportunity to prove the two ingredients required for getting the benefit under the second proviso. But on going through the judgment of the learned Appellate Authority it is found that some of the documents were received in evidence as those documents were public documents. Besides that the tenant has also produced Exts.B1 to B3 series. Further the two documents produced before the Appellate Authority were received and marked as Exts.B4 and B5. Those documents would only show that the licencee of 'Blossom Bakery' is the mother of the revision petitioner but the learned counsel for the landlord relied upon Ext.A6 which is the certified copy of deposition of R.C.R. NO. 74 OF 2007 -:7:- revision petitioner who was examined as PW1 in O.S.226/98 of Munsiff's Court, Koyilandy. The revision petitioner admitted in that case that he was using the room bearing No.18/548 for doing business and that the two rooms mentioned therein were used for stocking materials and third room was used as its kitchen 'appakoodu'. 5. Since the revision petitioner did not offer any explanation regarding the admission made by him as contained in Ext.A6 it is idle for the revision petitioner to contend that the admission contained in Ext.A6 cannot be used against him. Those aspects were also considered in detail by the learned Appellate Authority. 6. Yet another aspect was also pointed out by the landlord. It was stated that when the advocate Commissioner inspected the employees of that bakery they had stated that the revision R.C.R. NO. 74 OF 2007 -:8:- petitioner was running that business though the licence stood in the name of his mother. It was also found that among the legal representatives of the original tenant, the revision petitioner's mother is an aged woman and apart from his younger brother others are sisters. It was not the case of the revision petitioner that his younger brother was running that bakery. Even going by the admitted case of the tenant he was getting 1/5th share of the income derived from 'Blossom Bakery'. It is also pertinent to note that the revision petitioner did not produce the account books of the hotel business conducted by him in the petition schedule building. The burden is on him to prove that he is mainly depending on the income from the petition schedule building for his livelihood. There is dearth of evidence on that point. So R.C.R. NO. 74 OF 2007 -:9:- much so the finding entered by the learned Appellate Authority that the revision petitioner could not succeed in proving that his main source of livelihood is the income from the business carried on in the petition schedule building is only to be confirmed. 7. Smt. Prabha R. Menon also argued that though a few rooms were seen vacant in that locality it was found to be unsuitable for conducting the hotel business as the space available in those rooms was not even almost equivalent to the space actually required for conducting a hotel business. The tenant cannot expect to get room or building having the same area or convenience. It would be sufficient if there are suitable vacant buildings available in the locality. It was also pointed out that in Exts.C1 and C2 the advocate Commissioner R.C.R. NO. 74 OF 2007 -:10:- reported about the rooms lying vacant in that locality. The tenant has to make provisions in those rooms for cooking food, washing hand etc. in order to use it for his hotel business. We are not persuaded to accept that the tenant has discharged his burden in proving that there are no other suitable buildings available in the locality. Hence we concur with the view taken by the learned Appellate Authority that the revision petitioner could not prove the second limb of the second proviso also. As such the tenant is not entitled to the protection under that proviso. 8. In the result the order of eviction passed u/s 11(3) of the Act is only to be confirmed and we do so. The revision petition is thus dismissed. R.C.R. NO. 74 OF 2007 -:11:- 9. As a last submission, Smt. Prabha R. Menon submitted that more than one year time may be granted to the tenant to vacate the petition schedule building. This request is strongly opposed by the learned counsel for the landlord. The rent presently paid by the tenant is Rs.2,000/- per month. Learned counsel for the landlord would submit that the building would fetch at least Rs.5,000/- per month. Considering all these aspects we are inclined to refix the monthly rent at Rs.3,000/- and to grant time to the revision petitioner to vacate the petition sch edule building on the following conditions. 10. The revision petitioner shall file an affidavit within three weeks from today undertaking to give peaceful surrender of the building to the respondent within one year from R.C.R. NO. 74 OF 2007 -:12:- this day and undertaking further to discharge the arrears of rent within one month and to pay occupation charges at the rate of Rs.3,000/- per month with effect from 1.4.2011 promptly and regularly as and when the same falls due till the date of actual surrender. It is made clear that the revision petitioner will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE,JUDGE. N.K. BALAKRISHNAN,JUDGE. ul/-