IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
THURSDAY, THE 15TH DAY OF NOVEMBER 2012/24TH KARTHIKA 1934
RCRev..No. 344 of 2012 ()
------------------------RCA.4/2008 of I ADDL. RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.49/2005 of RENT CONTROL COURT OF MUNSIFF,CHAVAKKAD
PETITIONERS/APPELLANTS/RESPONDENTS 1 & 2 :
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1. ABDUL GAFOOR, 49 YEARS, AMBALATH HOUSE, MISSION ANGADI, KUNNAMKULAM.P.O THRISSUR DISTRICT.
2. KAMARUDHEEN,, AGED 45 YEARS AMBALATH HOUSE, KOTTAPPADI(P.O),CHATTUKULAM KUNNAMKULAM,THRISSUR DISTRICT.
BY ADV. SRI.K.A.SATHEESA BABU
RESPONDENT/RESPONDENTPETITIONER:
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K.V.IPE, AGED 77 YEARS S/O.KOLLANNUR VAREED,CHIRALAYAM(PO),KUNNAMKULAM THRISSUR DISTRICT.
R1 BY ADV. SRI.PHILIP T.VARGHESE
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15-112012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------R.C.R. No.344 of 2012 ----------------------------------------------Dated 15[th] November, 2012.**
## **O R D E R**
## **K.T.Sankaran, J.**
The respondent filed R.C.P.No.49 of 2005 on the file of the Rent Control Court, Chavakkad against the petitioners under Sections 11(3), 11(4)(i), 11(4)(ii), 11(4)(iii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act'). The Rent Control Court allowed the R.C.P. under Section 11(3) of the Act and dismissed the R.C.P. on other grounds. The tenants filed R.C.A.No.4 of 2008 on the file of the Rent Control Appellate Authority, Thrissur, challenging the order of the Rent Control Court. The landlord filed memorandum of Cross Objection, challenging the order of the Rent Control Court under Section 11(4)(ii), 11(4)(iii) and 11(4) (v).
2. Hereafter, the parties are referred to as 'landlord' and 'tenants'.
3. When the Rent Control Appeal came up for hearing, the ground under Section 11(4)(v) of the Act was not pressed by the landlord. The Appellate Authority, by the
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judgment dated 31[st] July, 2012, dismissed the appeal filed by the tenants confirming the order of the Rent Control Court under Section 11(3) and allowed the memorandum of Cross Objection, reversing the order of the Rent Control Court under Section 11(4)(ii) and 11(4)(iii) of the Act. The tenants have filed this Rent Control Revision, challenging the judgment of the Appellate Authority.
4. The plaint schedule building is in Kunnamkulam town. The tenants are running a hotel in the building. It is stated that their predecessors were also doing business in the plaint schedule building from 1969 onwards. The rent deed was executed by the tenants on 7.2.2002. The landlord and his wife are residing at Chiralayam, about 3 Kms. away from Kunnamkulam town. It is more or less admitted that Chiralayam is a remote place. It has come out in evidence that there is no hospital near the residence of the landlord and that no bus service is available in the place. The evidence disclosed that it is not possible for the landlord to get an autorikshaw or taxi from near his residence. The bonafide need set up by the
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landlord is that he and his wife want to reside in the plaint schedule building, so that at their old age, they would be able to go to the hospital and other places without difficulty. The landlord is now aged 81 years and his wife is aged 75 years. It has also come out in evidence that the landlord was born and brought up in the plaint schedule building and he resided there for about 38 years. In the house at Chiralayam also, he stayed continuously for 38 years. The Rent Control Court accepted the bonafide need set up by the landlord. The Rent Control Court also held that the tenants are not entitled to get the benefit of the first and second proviso to Section 11(3) of the Act.
5. The Rent Control Court as well as the Appellate Authority considered the oral and documentary evidence in the case and held that the bonafide need set up by the landlord is established. As regards the first proviso to Section 11(3) of the Act, the Appellate Authority held that the present house in which the landlord is staying belongs to his wife. That the wife is having another house is not a ground to deny the benefit of Section 11(3) to the landlord, as held in **Ameena v.**
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**Muhamood** (2005(4) KLT SN 76 Case No.104). The Appellate Authority also held that the landlord has established special reason for shifting to the plaint schedule building. As regards the availability of the benefit of the second proviso to Section 11(3), the Appellate Authority held that the tenants are not entitled to the protection thereof. The tenants run other businesses. It has come out in evidence that the tenants are owning a shopping complex very near to the plaint schedule building in the same town and they are getting income therefrom. The tenants did not establish that they are depending for their livelihood merely on the income derived from the business carried on by them in the plaint schedule building. From the Commissioner's report and other evidence, it is clear that there are other vacant buildings available in the locality. The Appellate Authority held that on the basis of the evidence on record, it cannot be held that the tenants are entitled to the protection of the second proviso to Section 11(3) of the Act. It is settled law that the tenants have to prove both the limbs of the second proviso to Section 11(3) of the Act. The
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tenants in the present case failed to prove both the limbs of the second proviso to Section 11(3) of the Act. We do not find any ground to interfere with the order of the Rent Control Court and the judgment of the Appellate Authority, as regards the finding under Section 11(3) of the Act.
6. The landlord contended that the tenants used the building in such a manner as to destroy or reduce its value or utility materially and permanently, attracting Section 11(4)(ii) of the Act. The Appellate Authority found, on the basis of the Commissioner's report and other evidence in the case, that the tenants dug a bore well in the eastern room of the building without the permission or concurrence of the landlord. In the rent deed, there is mention of a well situated outside the building. The Commissioner found that apart from the well situated outside the building, a bore well was also seen inside the building. The Appellate Authority held that digging of a bore well inside the building has certainly reduced its value and utility materially and permanently. The Appellate Authority also found that the tenants demolished the front portion of the
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building and widened the entrance. It was also found that another room was constructed by the tenants and it is being used for business purposes after getting that room numbered from the Municipality. The finding of the Appellate Authority that the acts done by the tenants would amount to destruction or reduction in value and utility of the building materially and permanently is correct.
7. The landlord also raised a contention that the tenants have in their possession a shopping complex owned by them, which is reasonably sufficient for their requirements, situated in the same town. Though in the counter statement the tenants did not admit that they own a shopping complex, it was admitted in the evidence of RW1, one of the tenants that the tenants own a shopping complex in the same town. That the shopping complex is not reasonably sufficient for the requirements of the tenants is to be established by the tenants. The Appellate Authority held that the tenants failed to discharge their burden of proof in this regard. We are of the view that the finding of the Appellate Authority under Section
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11(4)(iii) of the Act is also sustainable and no interference is called for.
8. The findings rendered by the courts below under Section 11(3) and the findings rendered by the Appellate Authority under Section 11(4)(ii) and 11(4)(iii) are findings of fact. The findings were arrived at on an appreciation of documentary and oral evidence. No grounds have been made out to invoke the jurisdiction of the Revisional Court under Section 20 of the Act. For the aforesaid reasons, the Rent Control Revision is dismissed.
9. Lastly, the learned counsel appearing for the petitioners/tenants contended that two years' time may be granted for the tenants to vacate the premises. The counsel contended that from 1969 onwards, the family members of the tenants are doing business in the plaint schedule building and if they were to vacate within a short duration, they would be put to irreparable injury and great hardship. The learned counsel appearing for the respondent/landlord submitted that the landlord is aged 81 years and he cannot be asked to wait
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indefinitely. Taking into account the facts and circumstances of the case, we are of the view that six months' time can be granted to the tenants to vacate the premises.
10. Accordingly, there will be a direction not to evict the tenants from the building for a period of six months, on condition that the tenants shall file an unconditional undertaking to vacate the premises before the expiry of six months from today and also undertaking to pay the arrears of rent within a period of two months from today and to continue to pay the monthly rent before the 10[th] of every month till they vacate the premises. The undertaking shall be filed by the tenants before the Rent Control Court within six weeks from today.
Sd/-
## **K.T.SANKARAN, JUDGE.**
Sd/-
## **M.L.JOSEPH FRANCIS, JUDGE.**
tgs
(true copy)
