**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU**
**FRIDAY, THE 25TH DAY OF AUGUST 2017/3RD BHADRA, 1939**
**RCRev..No. 280 of 2017 () --------------------------**
**AGAINST THE ORDER/JUDGMENT IN RCA 72/2016 of THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 19-07-2017 AGAINST THE ORDER/JUDGMENT IN RCP 145/2014 of III ADDITIONAL MUNSIFF COURT, ERNAKULAM (RENT CONTROL COURT) DATED 24-06-2016**
**REVISION PETITIONER(S)/APPELLANT/RESPONDENT: -------------------------------------------**
**COCHIN MEDIA CITY LIMITED REPRESENTED BY ITS DIRECTOR JERIT VENUGOPAL, 2ND FLOOR, ALBEY'S ESTATE, SAHODARAN AYYAPPAN ROAD, ERNAKULAM**
**BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA**
**RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------**
**JAIBE MARY CLEOPHUS D/O. ALBY ALFRED, AGED 48 YEARS, POOPANA HOUSE, THOPPUMPADY, ERNAKULAM 682 005**
**R1 BY ADV. SRI.GEORGE SEBASTIAN(CAVEATOR)**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **K.HARILAL & A.M.BABU, JJ.**
**.......................................... RCR No.280 of 2017 ........................................... Dated 25[th] August, 2017**
## **ORDER**
## **A.M.BABU, J.**
Eviction of the tenant was sought under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act'). The rent control court allowed eviction. The appellate authority confirmed it. The tenant is in revision. The parties are referred to in this order as they are arrayed in the rent control petition or as landlady and tenant.
2. The case of the landlady goes as follows: The premises tenanted to the tenant was tenanted as per an agreement dated 12.5.2013. The respondent is conducting an institution in the premises. The name of the institution is Cochin Media School. Monthly rent is Rs.19,996/-. The petitioner needs the tenanted premises for starting a boutique cum tailoring shop. The need is bona fide. The petitioner is well versed and qualified in dress designing. She had undergone a fashion designing course from an institution called the National Institute of Fashion Design. She is without any room in her possession to do the business proposed. She requested the respondent to surrender the building. The request was not heeded to.
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3. The application for eviction was contested by the respondent. The relevant contentions are the following: The respondent has been running an educational institution called the Cochin Media School in the tenanted premises since May, 2013. The school is run not only in the petition schedule building but also in the remaining portion of the same building and also in the adjacent building. Without the petition schedule premises the respondent is unable to conduct the educational institution. The need alleged is not bona fide. It is only a ruse for eviction. The petitioner is neither well versed nor qualified to do the business allegedly proposed. She has not undergone any course in fashion designing. She has no intention to start any business. She is not capable of doing it. Herself and her husband are affluent. They have no necessity to conduct a boutique. The institution run by the respondent is the sole means of income for it and its directors. No suitable building is available in the locality for the respondent to shift.
4. Both sides adduced evidence before the rent control court. PW1 and RW1 were examined. Exts A1 to A4 and C1 were marked.
5. We heard the learned counsel Sri. Philip T.Varghese and the learned counsel Sri. George Sebastian who appear for
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the landlady and tenant respectively.
6. The courts below considered every aspect of the case. The findings have been concurrent. Therefore the scope of interference is less, or even nil, unless the courts below had gone illegal, irregular or perverse.
7. PW1 is the petitioner herself. She deposed to her case. She spoke to her intention to start a boutique cum tailoring shop. She stated that she was qualified in fashion designing. She produced Ext A2 to show that she had completed a course in fashion designing. She has stated that the premises tenanted to the respondent is most suitable for starting the intended business of boutique cum tailoring shop. PW1 deposed to her experience in the field of fashion designing. She said she had been running the business of fashion designing in small scale in the car shed attached to her house. Having considered the evidence, we are unable to state that the appreciation of evidence by the courts below had been perverse. What was highlighted at the time of trial was the inexperience of the petitioner to do business in fashion designing. That is the head-ache or concern of the petitioner and the petitioner alone. Even if she is not experienced, that is no ground to suspect her intention to do the business. The
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evidence of PW1 does suggest that she is doing business in dress designing in a tiny space available in the car shed of her house. No contra evidence has been adduced by the respondent to counter the assertion of PW1 that she is doing business in fashion designing. The fact that the petitioner is affluent is not a disqualification for her to do the proposed business. We are satisfied that the courts below have appreciated the evidence in the correct perspective.
8. The contention of the respondent all along has been the difficulty to which it may be put in the event of its eviction from the tenanted premises. The hardship that may be caused to the tenant in the event of eviction is totally irrelevant while considering the ground under Sec.11 (3) of the Act. We are not considering and we are not called upon to consider the ground under Sec.11 (8) of the Act. Therefore the difficulties to which the respondent may be put in the event of its eviction cannot be considered in the present proceedings.
9. We are in agreement with the courts below that the need of the petitioner to do the business proposed is indeed a bona fide need. There has been an attempt in the trial court to defeat the petitioner under the first proviso to Sec.11 (3) of the Act. The other building which is pointed out by the respondent
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is not in the same locality. That building owned by the petitioner is located somewhere at Thoppumpady. It has also come out in evidence that a portion of that building is being used for conducting a fish market. Conducting a boutique just adjacent to a fish market may not attract customers. Therefore a special reason within the meaning of the first proviso to Sec.11 (3) of the Act has been offered to the satisfaction of the judicial mind.
10. It was contended that pending the rent control proceedings another room owned by the petitioner and occupied by a tenant by name Sojan Vempala was vacated. Admittedly the said premises is lesser in area than the premises now in the possession of the respondent. That apart, we have read the evidence of PW1 that although Sojan Vempala is not conducting any activity in the said premises at present, the key of the room has not been surrendered so far. We do not see any reason to reject the said evidence of PW1 and the finding of the courts below on the point. The petitioner cannot be defeated under the first proviso of Sec.11 (3) of the Act.
11. The tenant claimed protection under the second proviso to Sec.11 (3) of the Act. Admittedly the tenant is a
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private limited company. Therefore the second proviso to Sec.11 (3) of the Act will not take care of the tenant. Two decisions on the point are **A.V.M Ltd vs Dr Sunil P.Shenoy (1995 (2) KLT 5)** and **M/s Poomkudy Auto Service (P) Ltd vs. Parshanth Raghuvaran (2017 (1) KHC 226)** . The second proviso is therefore beyond the reach of the respondent.
12. Having considered the entire matter we are satisfied that the courts below were right in directing the eviction of the respondent. The revision is only to be dismissed. At this juncture the learned counsel for the tenant requested to grant a period of at least one year to vacate the premises. The time requested for is too long. The petitioner has been waiting for vacant possession of the building since 2014. At the same time we consider the fact that an educational institution is run in the tenanted premises. The tenant may require a breathing time to find out a suitable premises to conduct the activities conducted in the premises now in its possession. We are therefore inclined to grant time till 30.04.2018 to the tenant to vacate the premises. The time given to the tenant to vacate is pretty long. We caution the tenant that it shall not be under an impression that it needs to search for another building only in
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the month of April 2018. We further caution that the tenant should not be under an impression that it will get further time after the expiry of the period granted by us.
13. We dismiss the revision petition. We direct the parties to bear their respective costs. The tenant is granted time till 30.04.2018 to vacate the premises subject to the following conditions. The tenant shall file an affidavit undertaking to vacate the premises on or before 30.4.2018. It shall also be undertaken in the same affidavit that no further time will be sought under any circumstance. The affidavit shall be filed before the executing court within a period of three weeks from today. The arrears of rent, if any, shall be paid within a period of one month from today. Rent till vacating the premises shall be paid on or before the due date.
## **K.HARILAL Judge**
**A.M.BABU Judge**
_sks_
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