IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR.JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 RCRev..No. 146 of 2008() ----------------------------------- RCA.50/2007 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.35/2006 of III ADDL.MUNSIFF COURT, ERNAKULAM (RENT CONTROL) .................... REVISION PETITIONER/APPELLANTS/RESPONDENT: -------------------------------------------------------------------------- K.M. THOMAS ,S/O.MATHEW, AGED 53 KODUVELIL HOUSE, KOTTAKKANAL ROAD NEAR LISI HOSPITAL , SOUTH END, COCHIN-18 BY ADV. SRI.BIJU ABRAHAM RESPONDENTS/RESPONDENT/PETITIONER: -------------------------------------------------------------- 1. DR.P.K.K. PILLA.GEETHANJALI, BROADWAY, P.O. LINK ROAD, ERNAKULA, COCHIN-31 2. MRS. MEENA SIVASANKARAN, GEETHANJALI,BROADWAY, P.O. LINK ROAD, ERNAKULAM, COCHIN-31 BY SRI.K.R.MOHANAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26/06/2008, ALONG WITH RCR.147 OF 2008 THE COURT ON 03/07/2008 PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.Nos.146 & 147 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of July, 2008. O R D E R Ramachandran Nair, J. The tenants in petitions for eviction filed by the landlords are the revision petitioners. R.C.R.No.146/2008 arises from R.C.P.No.35/2006 and R.C.R.No.147/2008 arises from R.C.P.No.34/2006. Both the authorities have found that the claim for eviction on the ground of bonafide need pleaded by the petitioners in the eviction petition is genuine. 2. Heard Shri B.G. Bhaskar, learned counsel for the petitioners and Shri K.R. Mohanan, learned counsel for the respondents who appeared on caveat. 3. In the petition for eviction, the petitioners are the father and daughter who are owners of the building in question. The tenants respectively are occupying two rooms in the same building, which originally belonged to the wife of the first respondent herein and on her death, the property devolved on them. The bonafide need pleaded is for conduct of business by the second petitioner (second respondent herein) along with her RCR 146 & 147 of 2008 -2- husband who was examined as P.W.2. P.W.2 was working in Gulf countries and has returned to India and both the second respondent and her husband wanted to start textile business in the rooms in question. Even though eviction was sought on other grounds, viz. under Section 11(4)(i) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'), that was rejected which was not challenged by the landlords. 4. One of the main contentions raised for attacking the bonafide need pleaded by the landlords is that P.W.2 had a valid H-1 visa with work permit in America and therefore the bonafide need pleaded for starting a business in textiles cannot be a genuine one. The petitioners have filed I.A.No.1420/2008 in R.C.P.No.146/2008 and I.A.No.1421/2008 in R.C.P.No.147/2008 seeking for a direction to the respondents to produce the present passport and attested copy of visa of P.W.2 along with the contract executed by him with U.S. Company. 5. It was argued by learned counsel for the petitioners that H-1 visa obtained by the son-in-law of the first respondent, viz. the husband of the second respondent will compel him to work in United States of America and therefore on no account it can be held that the bonafide need pleaded is a genuine one. It is pointed out that the tenants have filed an application RCR 146 & 147 of 2008 -3- before the Appellate Authority also pointing out these facts and the Appellate Authority has therefore went wrong in not accepting the said plea. It is therefore contended that the finding rendered by the Appellate Authority while confirming the finding rendered by the Rent Control Court on the bonafide need pleaded, needs interference by this court. 6. Shri K.R. Mohanan, learned counsel for the respondents contended that P.W.2 had no H-1 visa to work in United States of America and this fact was deposed by him when he was examined in the case. Actually, his son is having H-1 visa and he was having only a visiting visa which fact has been explained by him already in his oral examination. Learned counsel submitted that Ext.A11 Photostat copy of the passport will show that he has returned from Gulf countries. It is pointed out that the endorsement therein will only show that he was having only a B-1 visa and the allegation that he was having a H-1 visa is therefore not correct. 7. In fact, the Rent Control Court has considered the evidence of P.Ws.1 and 2 in paragraphs 13 to 16 of the order. P.W.2's evidence clearly shows that he was working as the Manager of Sales Division in an industrial company. He had long experience of 30 years in the field of business. In fact, in cross examination he was asked about having a valid visa and he explained that his son is settled in United States of America and he has no RCR 146 & 147 of 2008 -4- intention to settle down in United States of America or to seek employment there. The Rent Control Court therefore found that even if he was having a visa to go to U.S., that will not be a factum to hold that the bonafide need pleaded is not a genuine one. The Appellate Authority has discussed in detail the argument about P.W.2 having a H-1 visa, in paragraph 17 of the judgment. The evidence of P.Ws.1 and 2 as well as the documentary evidence produced has been discussed in detail. The Appellate Authority after allowing the applications to amend the pleadings, was of the view that it was not necessary for remanding the matter for further evidence, in view of the facts explained by P.W.2 while he was cross examined. The Appellate Authority, after referring to the deposition of P.W.2, noted that his definite case is that he is not having H-1 visa and he is not settled there. Simply because P.W.2 was having a valid visa, it cannot be found that he is bound to settle in U.S. The assertion made by P.W.2 that he has already returned to Ernakulam after working in Gulf countries for 28 years and he has renovated his residential house for settlement in Ernakulam, was also noticed by the Appellate Authority. It was therefore found that merely because P.W.2 is having a valid B-1 visa to visit U.S., it cannot be held that the bonafide need pleaded is not genuine. 8. Learned counsel for the petitioner attempted to persuade us to find RCR 146 & 147 of 2008 -5- that P.W.2 is having a H-1 visa and the plea that he was having only a visiting visa is really not correct. We find that no attempt was made by the tenant in the Rent Control Court to call for any such document showing that P.W.2 is having a H-1 visa. In fact, he was confronted with this while he was examined and he had explained the various aspects also. Ext.A11 copy of the passport was also produced by him. Therefore, the repeated plea that he is having a H-1 visa cannot be accepted without any evidence to support the same. Both the authorities below have considered the said contention of the tenants in detail and the evidence adduced by the parties have been analysed in extenso. We find no infirmity in the approach made by the authorities below and the view taken is a plausible one on the evidence adduced by the parties. It cannot be said to be perverse warranting interference in revision. The applications filed in these revision petitions seeking for a direction to the respondents to produce various documents are therefore dismissed. This court will be justified in calling for further evidence only if materials before this court are lacking to decide the point in issue. Herein, that situation does not arise. 9. The above was the main point argued by the learned counsel for the petitioners before us. In fact, there was another plea made before the authorities below that the eviction petition is barred under Section 15 of the RCR 146 & 147 of 2008 -6- Act because of the fact that there was an earlier petition for eviction filed by the wife of the first respondent and which was dismissed. This contention was rejected by both the authorities below after finding that the bonafide need therein was for the occupation of her husband, viz. the first respondent herein and the bonafide need pleaded herein is totally different. No interference is called for on the said findings. Regarding the benefit of the second proviso to Section 11(3) of the Act, the findings are against the tenants/petitioners herein. There was evidence before the Rent Control Court to show that there are alternate accommodation available in the locality which fact is clear from Ext.C1 report of the Commissioner. The tenants also failed to show that the income earned from the business conducted in the petition schedule rooms is the major income for their livelihood. Since these are findings of fact entered by the authorities below on the basis of the evidence before them, we find no reason to interfere with them in exercise of the powers of revision. 10. No other points were urged for consideration. The authorities below have entered clear findings after analysing the various evidence adduced before them. We find that the exercise of jurisdiction by them are not tainted by any perverse approach and the findings are not erroneous RCR 146 & 147 of 2008 -7- also. We find no reason to entertain these revision petitions. Hence, we dismiss the same. No costs. ( P.R.Raman, Judge) (T.R.Ramachandran Nair Judge) r, Judge.) kav/ RAMAN, J. After pronouncement of the above judgment, the learned counsel appearing for the petitioner sought for sometime to surrender vacant possession of the building. Considering the fact that there is a business run in the tenanted premises by the tenants, we think it is only appropriate to give him a reasonable time to surrender vacant possession of the premises. Accordingly, we direct that the execution of the order of eviction passed by the authorities below shall stand deferred for a period of two months on the following conditions:- i. that an undertaking in the form of an affidavit shall be filed by the tenants within three weeks from today before the execution RCR 146 & 147 of 2008 -8- court, agreeing to give vacant possession of the tenanted premises on or before the expiry of the above two months. ii. that the arrears of rent, if any, shall also be deposited within the aforesaid period of two months. iii. that the tenants shall continue to pay the amount equivalent to the rent till vacant possession of the premises is given. iv. that the defendants shall not induct any third party into the premises. In case there is failure in complying with the above order, the order of eviction shall forthwith become enforceable. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) 3rd July, 2008. ms