**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940**
**RCRev..No. 117 of 2018**
**RCA 43/2013 OF THE RENT CONTROL APPELLATE AUTHORITY, (DISTRICT COURT),PALAKKAD**
**RCP 1/2013 OF THE RENT CONTROL COURT, ADDITIONAL MUNSIFF) PALAKKAD**
## **REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS**
**1 JANAKI, AGED 83 YEARS, W/O NARAYANAN M.A., NARAYANAN & SON JAGGERY MERCHANTS, MASJID ROAD, VALIYANGADI, PALAKKAD, PIN-678 014**
**2 SIVADASAN, AGED 66 YEARS, S/O. NARAYANAN M.A., NARAYANAN & SON, JAGGERY MERCHANTS, MASJID ROAD, VALIYANGADI, PALAKKAD, PIN-678 014.**
**3 SETHU MOHANAN, AGED 63 YEARS, S/O. NARAYANAN M.A., NARAYANAN & SON, JAGGERY MERCHANTS, MASJID ROAD, VALIYANGADI, PALAKKAD, PIN-678 014.**
**4 MURALI, AGED 60 YEARS, S/O. NARAYANAN M.A, NARAYANAN & SON , JAGGERY MERCHANTS, MASJID ROAD, VALIYANGADI, PALAKKAD,PIN- 678 014.**
**5 ANIRUDHAN @ MANI, AGED 57 YEARS, S/O. NARAYANAN M.A, NARAYANAN & SON, JAGGERY MERCHANTS, MASJID ROAD, VALIYANGADI, PALAKKAD, PIN-678 014.**
**6 KRISHNAVENI, AGED 55 YEARS, W/O. K.RAMESH, M.A. NARAYANAN & SON, JAGGER MERCHANTS, MASJID ROAD, VALIYANGADI, PALAKKAD PIN-678 014**
**BY ADV.SRI.K.RAVI (PARIYARATH)**
**RCRev..No. 117 of 2018**
## **RESPONDENT(S)/RESPONDENT/PETITIONER:**
**RAJMOHAN,**
**AGED 65 YEARS, S/O. LATE SREENIVASA GOUNDER, RAMA NIVAS, MANNANCHIRA ROAD, PALAKKAD-678 014**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04-04-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**PBS 5/4/2018**
P.N.Ravindran & Devan Ramachandran, JJ.
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R.C.R.No.117 of 2018 ---------------------------------------------------------------Dated this the 4[th] day of April, 2018
## **ORDER**
## **Devan Ramachandran, J.**
This revision has been filed by the tenants against the order of eviction passed by the Rent Control Court, Palakkad in R.C.P.No.1/2013 and affirmed by the Rent Control Appellate Authority, Palakkad in R.C.A.No.43/2013.
2. The tenancy arrangement was originally between late Sreenivasa Gounder, the father of the respondent herein and late Narayanan, the predecessor-in-interest of the present petitioners. The Rent Control Petition was preferred by the respondent herein under Section 11(3) of the Rent Kerala Buildings (Lease and Rent Control) Act, 1965 alleging that he requires the petition schedule shop room for the purpose of starting a business in distribution of surgical equipments by his younger son, who has completed graduation. The further assertion in the petition was that he is not in possession of any other suitable shop room for this purpose and that his son is depending upon him for accommodation.
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3. We notice that the tenants do not really contest this claim made by the landlord on its merits but only asserted that they are entitled to the benefit of second proviso to Section 11(3) of the Act, since they are solely depending on the income derived from the business conducted by them in the petition schedule shop room. They also contended that the landlord is in possession of another vacant shop room and that they cannot be evicted because there are no other vacant premises in the locality, again taking the benefit of the second proviso to Section 11(3) of the Act.
4. The Rent Control Court, on an assessment of the evidence and documents on record, repelled the contentions of the tenants and ordered eviction, which was affirmed in appeal by the Rent Control Appellate Authority. It is against the orders of the courts below that this revision has been filed.
5. When this matter was taken up today, the learned counsel for the petitioner contended that the bonafide need put forward by the landlord is only a ruse to obtain vacant possession of the shop room and he says that in any event of the matter, the courts below were not justified in ordering eviction, when it is specifically available on record that the
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landlord had another vacant shop room in his possession to start the business for his son. According to the learned counsel, though the Rent Control Court ordered eviction under Section 11(3) of the Act, the Rent Control Appellate Authority ordered eviction under Section 11(2)(b) also, even without making such a prayer by the landlord at any point of time. He further says that the order of eviction is completely unnecessary and uncalled for because even if assuming that the bonafide need is found to be genuine as claimed by the landlord, it would not be necessary to evict the tenants since other vacant shop rooms are in possession of the landlord.
6. We have examined the orders of the courts below and we notice that the allegation that the landlord had another vacant shop room in his possession has been found concurrently to be factually incorrect by the courts below. The courts below had relied upon the report of the Commissioner appointed by the Rent Control Court and marked on record as Exhibit C1, wherein it was reported that the rooms pointed out by the tenants are two rooms in which other businesses by name 'Vanika Store' and 'Shalimar Agencies' are being presently run.
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7. We see that as regards 'Vanika Store' is concerned, the Commissioner has found that this was a tenancy created much before filing of the Rent Control Petition, whereas the tenancy created in respect of 'Shalimar Agencies' was found to be after filing of the Rent Control Petition. However, going by the ratio in **Asher v. Hassankutty Hajee** (2004 (2) KLT 446), this would not offer any benefit to the tenants because, admittedly, the room housing the business 'Shalimar Agencies' is not in the exclusive ownership of the landlord but that he is only a co-owner. The courts below have, therefore, correctly found that the contention of the tenants regarding availability of alternative accommodation by the landlord is not tenable and went on to order eviction because nothing was placed on record by them to show that they are solely depending upon the income derived from the business, even if it is assumed that there are no other buildings in the locality to shift their business.
8. On a consideration of the materials and evidence on record, we are of the view that the courts below have concluded correctly as regards the bonafide need and that in the absence of any cogent evidence to show that the tenants
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are depending upon the income derived from the business conducted in the petition schedule shop room, the benefit of second proviso to Section 11(3) of the Act would not be available to them. It is now well settled that the benefit of the proviso would be available to a tenant only if both the limbs therein are established. In the present case, it is pertinent that the tenants have not established that they are solely depending upon the income derived from the business, apart from making a bald assertion to that effect and, therefore, even assuming that there is no other vacant building in the locality to shift their business, as has been stated in Exhibit C1 commission report, it would not aid the tenants in any manner because the first limb has not been established or demonstrated by them credibly.
9. That being said, we find some force in the submission of the learned counsel for the petitioners that the Rent Control Appellate Authority could not have ordered eviction under Section 11(2)(b) without the landlord making a prayer to that effect and without any of the imperative criterion being established for such purpose. For such reason, we deem it appropriate to vacate the observations of the Rent
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Control Appellate Authority with respect to Section 11(2)(b) of the Act in the judgment.
10. At this time, the learned counsel for the petitioners prays that the petitioners may be given six months time to vacate the petition schedule shop room because they are conducting an on-going business in jaggery. We find this submission to be fair and we are, therefore, of the view that even without issuing notice to the respondent herein, it would be justified for this Court to grant a breathing time to the tenants to give vacant possession of the petition schedule shop room so as to obtain for themselves an alternative accommodation.
In such view of the matter, this revision is dismissed and the petitioners are given six months time to give vacant possession of the petition schedule shop room on the following conditions:
(a) The petitioners shall file an affidavit in the Rent Control Court on or before 22.05.2018 undertaking to surrender vacant possession of the petition schedule shop room by 30.09.2018.
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(b) They shall also deposit the rent, if any, in arrears on or before 22.05.2018 and continue to pay the occupation charges, which we fix at Rs.500/- per month, with effect from 01.04.2018 till the date of surrender.
(c) They shall also undertake that they will not induct strangers into possession of the petition schedule shop room or commit acts of waste therein.
(d) Needless to say, in the event of failure on the part of the petitioners to file an affidavit within the time stipulated above, it will be open to the landlord to execute the order of eviction forthwith.
Sd/P.N.Ravindran, Judge
Sd/-
Devan Ramachandran, Judge
tkv
