Kallayi Krishnan v. Panolil Chalapravan Kunhikannan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **RCRev..No. 22 of 2019** **AGAINST THE JUDGMENT IN RCA 16/2016 DTED 21.11.2018 of THE RENT CONTROL APPELLATE AUTHORITY,THALASSERY** ## **REVISION PETITIONER/S:** **KALLAYI KRISHNAN, AGED 78 YEARS S/O KANNAN, KOODATHAN KUNNUMMAL HOUSE, KALLIKKANDY P.O.THALASSERY TALUK.** **BY ADV. SRI.ANILKUMAR V. (VAZHARAMBIL)** ## **RESPONDENT/S:** **PANOLIL CHALAPRAVAN KUNHIKANNAN S/O CHOYI,KOLAVALLUR AMSOM, KANNANKODU DESOM, KALLIKKANDY P.O.THALASSERY TALUK, KANNUR DISTRICT, PIN 670 101** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 22 of 2019 2** ## **ORDER** ## **K.HARILAL,J** The revision petitioner is the tenant, against whom, an order of eviction has been concurrently passed by the courts below under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (herein after referred to as 'the Act'). The parties are referred to from the rent control petition. 2. According to the petitioner, he was conducting business at Bangalore; but at present he has no job or avocation. So he _bona fide_ needs the petition schedule building; for starting a grocery and stationery business to eke out income for the livelihood of his family. His son ## **RCRev..No. 22 of 2019 3** Satheesh Kumar also has no job or employment and he is also ready to join with the petitioner to conduct the proposed grocery shop. He has no other vacant buildings of his own in his possession to start the proposed business. 3. The respondent resisted the claim for eviction contending that the need projected in the petition is not a _bona fide_ need and it is a ruse for eviction only. According to him, the petitioner and his son are running business at Bangalore. Therefore, there is no need to start a new business in Thalassery. It is also contended that the petitioner is an aged person and the he is in possession of other vacant rooms in the same building. He could have started the proposed business in the room, which was occupied and vacated by a **RCRev..No. 22 of 2019 4** tutorial college. He is mainly depending on the income derived from the business in the tenanted premises and no other vacant buildings are available in the locality to shift his business for the tenanted premises. Therefore, he is entitled to get protection under the second proviso of Section 11(3) of the Act. 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected in the petition is _bona fide_ and the claim for eviction under Section 11(3) of the Act is not barred by the first proviso and the respondent is not entitled to get protection under the second proviso of Section 11(3) of the Act. The legality and property of the aforesaid findings are **RCRev..No. 22 of 2019 5** assailed in this revision petition. 5. Heard the learned counsel for the petitioner. 6. The learned counsel for the respondent/tenant contends that the courts below have failed to appreciate the evidence on record available under the first proviso to Section 11(3) of the Act in its correct perspective. It has come out in evidence that the petitioner himself had admitted that he is in possession of a vacant room in the first floor, which was occupied and vacated by a tutorial college. But, the courts below have failed to consider the said evidence in its correct perspective. No other point has been raised before us in this revision. 7. Being a revision filed under Section 20 of the Act, we must remind ourselves the **RCRev..No. 22 of 2019 6** limited scope and extent of interference, under the revisional jurisdiction, which is confined to the legality, propriety and regularity of the impugned order only. This Court is not inclined to re-appreciate the entire findings on evidence, in exercise of revisional jurisdiction unless the findings of the court below are perverse or vitiated by non-consideration of material facts. Bearing the aforesaid legal proposition in mind, we have examined whether the findings under the second proviso of Section 11(3) of the Act are perverse or not. 8. Going by the impugned judgment passed by the Appellate Authority, we find that the petitioner himself at the time of cross-examination admitted that a tutorial college was running in a room in the first floor of the building and now that room in **RCRev..No. 22 of 2019 7** the first floor is lying vacant. But, further he added that that room is not suitable for conducting a grocery and stationary business, because the customers will find it difficult to get access to the shop room and he wants to start the grocery business in the ground floor itself. That apart, he has proceeded against the tenant, who is occupying the adjacent shop room also and he wants to start business in both shop rooms. We are also of the view that for starting a retail stationary business, the shop room in the ground floor is always convenient preferable than the room in the first floor of a building. The above view is supported by this Court in _**Kurian K. Kuriakose**_ v. _**Usha Cherian and Others [2008(1) KLT 739]**_ . In this decision, this Court held that the shop rooms in the first **RCRev..No. 22 of 2019 8** floor of a building cannot be equated with the rooms in the ground floor inorder to start a retail business. 9. In the above view, we also find that the petitioner has given special reason for not occupying the vacant room in the first floor of the building. The respondent has no case that the petitioner has any building in his possession, other than the shop rooms, which was occupied and vacated by the tutorial college. In the above view, we do not find any kind of illegality or impropriety in the concurrent findings of the courts below that the petitioner has succeeded in giving special reason for not occupying the building in his possession for starting the proposed business. There is no reason to interfere with the concurrent findings of the courts below. **RCRev..No. 22 of 2019 9** 10. However, the learned counsel for the revision petitioner seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given eight months' time to vacate the tenanted premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of the copy of this order. 2. The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of eights months from today. 3. The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy of this order. 11. In the case of failure, the time granted to vacate the premises will stand **RCRev..No. 22 of 2019 10** automatically cancelled and the respondents are entitled to enforce the order. Hence the revision petition fails and accordingly dismissed. **Sd/K.HARILAL JUDGE Sd/ANNIE JOHN JUDGE** SB/16.01.2019