A. Muhammed Kunju v. Thankamma Chacko & P. C. Roy

## IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 RCRev..No. 235 of 2005() ------------------------ .................... ## REVISION PETITIONER/RESPONDENT: RESPONDENT A. MUHAMMED KUNJU, CHIRAYI VEEDU, ERUVA MURI, PATHIYOOR VILLAGE. BY ADV. SRI.KKM.SHERIF SRI.P.M.KUNJIMOIDEENKUTTY SRI.P.A.MOHAMMED ASHROF SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN RESPONDENT(S): APPELLANTS: PETITIONERS 1. THANKAMMA CHACKO, PEEDIAKKALVEEDU, KAYAMKULAM MURI, PATHIRYOOR VILLAGE. 2. P.C. ROY, PEEDIAKALVEEDU, KAYAMKULAM MURI, PATHRIYOOR VILLAGE. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. **-------------------------------------------------** R.C.R. 235 of 2005 **-------------------------------------------------** Dated: AUGUST 11, 2009 ORDER ## Pius C. Kuriakose, J. The tenant who has suffered orders of eviction under sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act at the hands of the Rent Control Appellate Authority challenges the order of eviction passed by the Rent Control Appellate Authority in reversal of the order of the Rent Control Court declining eviction under sub-sec.(3) of sec.11. In fact, the landlord sought for and obtained an order of eviction under sec.11(2)(b) concurrently. But in this revision we are not concerned with the order of eviction passed under sec.11(2)(b) since that order is always liable to be vacated by the Rent Control Court upon motion made in that regard by the tenant followed by deposit of the arrears of rent found. 2. The need projected in the RCP in the context of sub-sec. (3) of sec.11 was that the landlord who is a returnee from Gulf wants to conduct banking business in the petition schedule R.C.R. 235 of 2005 2 building. The bona fides of the need and the claim was resisted by the tenant contending that during the pendency of the RCP (a few months prior to the commencement of the trial) a residential building situated not far away from the residential building of the landlord fell vacant. This aspect of the matter was brought to the notice of the Rent Control Court. The Rent Control Court, however, accepted the explanation of the landlord that the said residential building is not fit to satisfy the need projected by the landlord. The Rent Control Court noticed the circumstance that a building had fallen vacant during the pendency of the rent control proceedings and the landlord did not occupy that building for accomplishment of the need projected by him and held that the said circumstance is demonstrative of the absence of bona fides. In fact, the Rent Control Court has found that the rent control proceedings is liable to fail by virtue of the first proviso to sub-sec.(3) of sec.11. The Appellate Authority, however, considered the appeal preferred by the landlord and found that the landlord had special reasons for not occupying the building which fell vacant. In that view of the matter, the Appellate Authority interfered with the finding of the Rent Control Court R.C.R. 235 of 2005 3 and ordered eviction under sub-sec.(3) of sec.11. 3. We have heard the submissions of Mr. Ziyad Rahman, learned counsel for the revision petitioner/tenant, and those of Mr. K.K.John, learned counsel for the revision respondent/landlord. Mr. Rahman would draw our attention to the judgment of the Supreme Court in _Maqboolunnisa v. Mohd. Saleha Quaraishi ( 1998) 9 SCC 585_ and argue that in a situation where a vacant building becomes available to the landlord who has sought for eviction on the ground of bona fide own occupation, it is for the landlord to plead and prove that he has special reasons for getting eviction despite obtainment of such vacant possession. The learned counsel submitted with reference to the rent control petition that the landlord had not disclosed in the petition that he was already carrying on banking business in a room of his residential building. The nondisclosure of that information itself should disentitle the landlord to an order of eviction now granted in his favour. The learned counsel submitted that his client is not ready to take the so called vacant building on lease even if the same is offered to him by the landlord since what the tenant requires is a shop building like the R.C.R. 235 of 2005 4 building which is the subject matter of the rent control proceedings. 4. Sri K.K. John, learned counsel for the revision respondent, would resist the submissions of Sri Rahman and support the judgment of the Rent Control Appellate Authority. He reminded us of the contours of our jurisdiction under sec.20 and submitted that there is absolutely no warrant for interfering with the finding of the Rent Control Appellate Authority which is founded on evidence actually available on record. 5. We have anxiously considered the rival submissions. According to us, the Rent Control Court erred seriously in holding that the rent control proceedings is liable to fail by virtue of the first proviso to sub-sec.(3) of sec.11. Admittedly, the landlord did not have vacant possession of the building which fell vacant only some time prior to the commencement of trial. Therefore the landlord could not be expected to plead special reasons. The 1[st] proviso to sub-sec.(3) of sec.11, in our opinion, does not in a strict sense apply to this case. At best it could be argued that the failure on the part of the landlord to occupy the building which fell vacant is a circumstance which is indicative of absence R.C.R. 235 of 2005 5 of bona fides. But then it has almost become evident that the building which fell vacant was a residential building. The case of the landlord as submitted by Mr. John is that the said building is a dilapidated one and it is on account of the dilapidated condition of that building that the former tenant of that building became ready to vacate that building. Mr. John submitted that the landlord may be ready and willing to let out that building to the present tenant provided he pays a reasonable rent. As already indicated, the above proposal is not acceptable to Mr. Ziyad Rahman, learned counsel for the landlord. It is not clear from the evidence as to when the landlord started the banking business in his residential building. It appears to us that the banking business was started in the residential building more or less at the time of the commencement of the rent control proceedings. Obviously that was only a provisional arrangement. The need projected in the rent control proceedings is the need for a shop building like the petition schedule building situated in a commercial area of the Kayamkulam municipal town. The landlord's evidence that continuance of the banking business in a room of his residential building is very inconvenient for the family R.C.R. 235 of 2005 6 members inspired the fact finding authorities under the statute. In view of the divergent nature of the findings, we also went through the evidence. On our appreciation of the evidence also, we feel that the version of the landlord that the banking business cannot be conveniently conducted in a room of his residential house and that the same can be profitably and more conveniently conducted in the petition schedule building which is a commercial shop room in the town is believable. As for the building which fell vacant, the unwillingness of the revision petitioner to take that building on lease itself shows that the special reason mentioned by the landlord for not occupying that building is a valid reason. In short, having regard to the contours of our revisional jurisdiction under sec.20, we are of the view that there is no illegality, irregularity or impropriety tainting the judgment of the Rent Control Appellate Authority to the extent of warranting correction under sec.20. The revision necessarily has to fail. 6. As his last submission Mr. Rahman sought for one year's time to vacate the premises. The above request is opposed very stiffly by Mr. John. According to him, the tenant is R.C.R. 235 of 2005 7 practically doing no business in the petition schedule building now and granting more than two months time will be unjust. We, however, think that there is justification in this case for granting time till 31.3.2010. Accordingly, even though we are dismissing the revision confirming the judgment of the Appellate Authority, we direct the Execution Court not to order delivery of the petition schedule building in favour of the landlord till 31.3.2010 on condition that the revision petitioner/tenant files an affidavit before the Execution Court within three weeks from today undertaking to discharge the arrears of rent, if any, within one month and to pay occupational charges at the current rates promptly and regularly till he make actual surrender of the premises and also to give peaceful surrender of the premises to the landlord on or before 30.3.2010. We make it clear that the revision petitioner will get the time granted by this judgment only if he files an affidavit on time. PIUS C. KURIAKOSE, JUDGE mt/-