Ashraf v. Dr. V.P. Rajan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 RCRev..No. 226 of 2011() -----------------------RCA.14/2009 OF THE RENT CONTROL APPELLATE AUTHORITY, VADAKARA RCP.45/2008 OF THE RENT CONTROL COURT, VADAKARA .................... PETITIONER/APPELLANT/RESPONDENT(TENANT) ----------------------------------------------------------- ASHRAF, S/O.ABOOBACKER, RESIDING AT RAOUF MANZIL, VADAKARA MASOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT/RESPONDENT/PETITIONER(LANDLORD) ---------------------------------------------- DR.V.P.RAJAN, S/O.GOPALAN MASTER, RESIDING AT PRANAVAM, VADAKARA AMSOM DESOM, NUT STREET, VADAKARA, KOZHIKODE DISTRICT, PIN 673101. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1292 OF 2011 IN R.C.R.NO.226 OF 2011 ## DISMISSED 29.6.2011 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- N.K.BALAKRISHNAN, JUDGE. ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------R.C.R.No.226 of 2011 ---------------------------------------------------Dated this the 29th day of June, 2011** ## **Order** ## **Balakrishnan, J.** The tenant is in revision. Petition for eviction was filed by the landlord under Section 11(3) for own occupation and also on the ground under Section 11(4)(iii) of Act 2 of 1965 contending that the tenant has in his possession another building which is reasonably sufficient for his requirement. The landlord himself was examined as P.W.1 and Exts.A1 to A17 were marked. The revision petitioner-tenant was examined as R.W.1 and Exts.B1 to B3 were marked. The learned Rent Controller found that the bonafide need under Section 11(3) projected by the landlord is true, but the claim for eviction under section 11(4)(iii) was disallowed by that court. The tenant took up the matter in appeal. The learned Appellate Authority confirmed the order of eviction under Section 11(3). In reversal of the order declining eviction under Section 11(4)(iii), the Appellate Authority granted eviction under Section 11(4)(iii) also. RCR 226/2011 2 2. Mr.M.Gopikrishnan Nambiar, learned counsel for the revision petitioner-tenant would submit that the evidence let in by the landlord was not properly reappreciated by the learned Appellate Authority while confirming the findings of the Rent Control Court under Section 11(3). 3. Though no appeal was filed by the landlord challenging the rejection of the claim under Section 11(4)(iii), the landlord pressed into service the claim for eviction under Section 11(4)(iii) also. Since the order of eviction was passed by the rent control court, in order to support the order of eviction, invoking Order 41 Rule 22 C.P.C., without filing any appeal or cross objection, that ground can also be pressed into service in support of which the decision of this court in **Ganesh v. Varghese** (2005(1) KLT 282) has been relied upon by the landlord. Hence, order of eviction was passed by the learned Appellate Authority under Section 11 (4)(iii) also. 4. Mr.Gopikrishnan would submit that the courts below should have found that the landlord who is a doctor by profession was employed as R.M.O. in Asha Hospital and the appointment order issued to him would show that his duty hours in the RCR 226/2011 3 hospital was from 3 AM to 9 PM, but in order to suit the case of the landlord, 3 AM was converted as 3 PM. Mr.Gopikrishnan would further submit that in order to prove that the landlord doctor was actually working in Asha Hospital in the afternoon session also, a prescription issued by him to a patient was also produced. That would reveal that P.W.1 was actually working in Asha Hospital in the morning hours also. Relying upon these documents, Mr.Gopikrishnan would submit that correction in Ext.A12 as 3 PM instead of 3 AM was deliberately made by the landlord. His argument has been stoutly opposed by Mr.B.Krishnan, the learned counsel appearing for the landlord. Mr.Krishnan submitted that it was only a typographical error and that was corrected by the office which issued it. P.W.1 was the R.M.O. of Asha Hospital. When a phone call was received, he went to the hospital and examined the patient. That does not mean that his working hours was actually from 3 AM to 9 PM. Any doctor when informed of such a situation would rush to the hospital to attend the patient. But, here the tenant has adopted a dexterous device, employing a patient who was his own man to obtain such a prescription in order to produce it before the court. RCR 226/2011 4 The learned counsel further submits that the appointment order can never show, in the usual course, that the working hours would be from 3 AM, an odd hour. We find reason to hold that his working hours was from 3 PM to 9PM only. So much so, the learned counsel for the landlord would submit that there would be no difficulty for P.W.1 to start a clinic in the petition schedule building morning hours. 5. The landlord wants to start a clinic in the petition schedule building. The idea of starting a clinic of his own cannot be viewed with suspicion. Though P.W.1 was earlier employed once in three days in a week under the Vadakara Municipality, that service was terminated. So much so, it cannot be said that the need projected by the landlord is not sincere or honest. Both the courts were perfectly justified in holding that the claim for eviction under Section 11(3) is bonafide. Admittedly, the revision petitioner was having other buildings in his possession. No evidence was adduced to show that he was entitled to get protection under the second proviso to Section 11(3). As such the order of eviction under Section 11(3) is only to be confirmed. 6. With regard to the availability of other buildings in the RCR 226/2011 5 possession of the revision petitioner, there is evidence to show that he had been in possession of buildings as stated in the petition. The revision petitioner contended that those buildings are used as go down and that those buildings are not suitable for any other purpose. No satisfactory evidence was produced by the tenant in that line. The burden is on the tenant to prove that the other building in his possession is not reasonably sufficient for his requirements. So much so, the order of eviction passed under Section 11(4)(iii) also requires no interference at the hands of this court. In the result, the revision fails and is dismissed. 4. Mr.Gopikrishnan would finally submit that at least 18 months time may be granted to the revision petitioner to vacate the petition schedule building. This request is stiffly resisted by Mr.Krishnan, learned counsel for the landlords. However, taking note of all facts and circumstances of the case, we grant the revision petitioner-tenant time till 31.3.2012 to vacate the petition schedule building subject to the following conditions: The revision petitioner shall file an affidavit within three weeks from today before the execution court or the rent control court, as the case may be, undertaking to surrender possession RCR 226/2011 6 of the building peacefully to the landlord on or before 31.3.2012 and undertaking further to discharge the arrears of rent, if any, within one month from today and would continue to pay occupation charges at the existing rate to the landlord without fail. We make it 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.** srd RCR 226/2011 7 RCR 226/2011 8