IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 RCRev..No. 38 of 2008() ----------------------- RCA.129/2006 of VI ADDL.DISTRICT COURT/R.C.A.A., ERNAKULAM RCP.78/2005 of III ADDL.M.C.EKM (RENT CONTROL) .................... PETITIONER/APPELLANT/TENANT: --------------------------------------------- JOSEPH THOMAS, S/O. K.T.JOSEPH, KANATT HUSE, 26/1202, THEVARA DESOM, PERUMANNUR. BY ADV. SRI.S.KRISHNAN THAMPI SRI.THOMAS JOSEPH PALLIVATUCKAL RESPONDENT/RESPONDENT: LANDLORD: ----------------------- P.G. VARGHESE, S/O.LATE P.L.GEORGE, AGED 43 YEARS, 27/3565(2), 2ND FLOOR, PARAMBIL ESTATE, THEVARA, COCHIN-15. (2ND RESPONDENT IN RCP WAS NOT A PARTY IN THE RCA 2ND RESPONDENT NOT A NECESSARY PARTY IN RCR). BY ADV.SRI.SHAJI P.CHALY (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- R.C.R. NO. 38 OF 2008 ----------------------------------------- Dated 11th February, 2008. ORDER Balakrishnan Nair, J. The tenant is the revision petitioner. The landlord is the respondent. The landlord claimed eviction under Sections 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as “the Act”). 2. The landlord claimed the petition schedule building for the occupation of his wife, to start a business in readymade garments and also a tailoring unit. She is depending on him for the room. There is another adjacent shop room, which is occupied by a tenant. The landlord has already filed a petition to evict him. Both the rooms are required for the proposed business. The petition schedule building has been sublet by the tenant and therefore, he sought eviction under Section 11(4)(i) also. The tenant filed objection, stating that the need alleged is not bona fide. It is only a ruse to evict him. He also denied the allegation of subletting. RCR 38/2008 2 Further, it is submitted that his only source of income is from conducting the footwear business in the petition schedule building. The landlord has got other vacant rooms in his possession. Therefore, he prayed for dismissal of the petition. The Rent Controller upheld the claim under Section 11(3) and rejected the claim of the landlord under Section 11(4)(i). The tenant appealed. The appellate authority affirmed the order of the Rent Controller. Hence this revision. 3. The learned counsel for the revision petitioner submitted that the landlord has other rooms in the upstair portion of his building. Therefore, the revision petitioner is entitled to get the protection of the first proviso to Section 11(3). But, we notice that the said contention was considered by the appellate authority. It was found that in the upstair portion of the petition schedule building in the possession of the landlord, he is residing with his family. It is a finding of fact and therefore, the claim of the tenant for protection under the first proviso to Section 11(3) has been rightly rejected. Secondly, it is contended that regarding subletting, the landlord has set up a false case. Therefore, the authorities should have found that the entire case of the landlord is false. But, the appellate authority considered the said point and held that even if eviction on one ground is rejected, it can be allowed on other grounds. RCR 38/2008 3 4. In this case, the bona fide requirement of the landlord was not seriously disputed by the tenant, when he was examined as R.W.1. Therefore, we find no reason to interfere with the finding of the appellate authority that the claim of the landlord for the room is bona fide. The tenant did not, in fact, plead the necessary facts to prove his case under the second limb of the second proviso to Section 11(3). Under the first limb of the said proviso his pleading is that he has no other income. But, while in the box, the tenant admitted that he is a pensioner and he is receiving a monthly pension of Rs.6,000/-. For getting the protection of the second proviso to Section 11(3), the tenant has to prove both the limbs of the said proviso. In view of the above position that the tenant has failed to prove the ingredients of both the limbs, we find nothing wrong with the decision of the appellate authority in not extending the benefit of the second proviso to Section 11(3) to the revision petitioner. In the result, the R.C.R fails and it is dismissed. 5. But, the learned counsel for the revision petitioner prayed for some time to vacate the premises. On this point, we heard the learned counsel for the landlord. Having regard to the facts of the case, the revision petitioner is granted six months' time from today to vacate the scheduled room, on condition he files an unconditional undertaking in the form of an affidavit RCR 38/2008 4 before the execution court within three weeks from today, undertaking to vacate the room within six months from today. The arrears of rent, if any, remaining unpaid shall be paid and he shall continue to pay the rent from time to time, till the room is vacated. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/