IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR
MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930
RCRev..No. 58 OF 2007()
----------------------RCA.141/2006 OF THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.157/2005 OF THE RENT CONTROL COURT, .KOZHIKODE-I ....................
REVISION PETITIONER/APPELLANT./TENANT )
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LATHA RAVIKUMAR, W/O. RAVI KUMAR, THATTARAKKAL, CARRYING ON BUSINESS AT 5/3457 E, KEERTHI BUILDING, I.G.ROAD, KOZHIKODE-673 004.
BY ADV. SRI.P.T.MOHANKUMAR SRI.A.AHZAR
## RESPONDENTS/ RESPONDENTS/LANDLORDS
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1. U.N. MANOHARAN, S/O. UNNIAMU, "DEEPTHI", NEAR MES WOMEN'S COLLEGE,POST NADAKKAVU CALICUT-673011, KATCHERI AMSOM, KURUMBRAKKATTUSERI DESOM, KOZHIKODE TALUK.
2. JAMES GEORGE, S/O. K.C.GEORGE, KULANGARA HOUSE, CIVIL STATION, VENGERI AMSOM, NEDUNGOTTUR DESOM, KOZHIKODE TALUK.
BY ADVS: SRI.A.BALAGOPALAN SRI.K.SANEESH KUMAR SMT.P.SEENA SMT.KALA G.NAMBIAR
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON 23.6.2008, PASSED THE FOLLOWING:
**RCR 58/2007**
ORDER ON I.A. 493/2007, I.A. 2533/2007 & I.A. 1142/2008 IN RCR 58/2007
## // DISMISSED //
23.6.2008
SD/-, P.R. RAMAN, JUDGE.
SD/-, T.R. RAMACHANDRAN NAIR, JUDGE.
// TRUE COPY //
P.S. TO JUDGE.
knc/-
## P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ.
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DATED THIS, THE 23RD DAY OF JUNE, 2008.
## _**O R D E R**_
## Raman, J.
Revision petitioner is a tenant under the respondents. She is faced with an order of eviction passed by the Rent Control Court under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 which was confirmed in appeal by the appellate authority.
2. It is contended by the learned counsel for the revision petitioner that the authorities below have committed irregularity in the matter of ordering eviction of the revision petitioner. It is also contended that the petition for eviction ought to have been filed under Section 11(8) whereas it was filed under Section 11(3) of the Act and these are mutually independent provisions. Reliance is placed on the decisions of this Court in _**Pakran v. Kunhiraman Nambiar**_ (2004 (1) KLT 824 and _**Indian Saree House v. V. Radhalakshmy**_ (2006 (3) KLT 129) as also the decision of the apex court in AIR 1999 SC 3223.
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3. Heard both sides. The tenant is in occupation of a room bearing Door No. 5/3457 E of Calicut Corporation, which belongs to the respondent/landlords jointly. Entrustment was as per Ext.A1 dated 2.11.2004 for a period of 11 months. The rent originally fixed was Rs. 5,000/- which increased to Rs. 5250/- payable in equal portion to the respondents/landlords. According to the landlords, PW.2 the son of the first respondent, who is physically disabled and stopped his studies, is running a stationery business and STD booth in the room situated on the immediate west of the petition schedule room. According to them, it is very small and is a staircase room without sufficient visibility from the road, and is not sufficient to stock stationary goods and do business in an artful manner. Hence the schedule room is needed in order to expand the business. The revision petitioner/tenant contended that it is a licence and not lease and she denied the need put forward by the landlord.
4. The first respondent gave evidence as PW.1 and his son was examined as PW.2. Exts. A1 to A7 were marked on the respondents' side and Exts.B1 to B2(f) were marked on the revision petitioner's (tenant) side
5. Exts.A5 and A6 are produced to show that PW.2 is running a STD Book and stationary business. The revision petitioner/tenant was examined as RW.1. Ext.B1 is a copy of return for VAT produced by the revision
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petitioner. Ext. B2 series are photographs of the petition schedule premises. Exts. C1 and C1(a) are the report and rough sketch respectively filed by the commissioner. The commissioner reported that the western portion of the petition schedule premises is a mini store and Photostat run by PW.2.
6. The specific allegations made in the rent control petition and supported by evidence of PWs 1 and 2 is that the building where the schedule room is situated is jointly owned by the respondents/landlords. It is also admitted that rent is paid by the tenant separately to the landlords in equal portion. Respondents/landlords are not related. However, they acquired the land jointly and constructed the building. PW.2 is the son of the first petitioner who is in occupation of the portion of the building. He is a physically handicapped person who stopped his studies at the stage of PDC and since he wanted to start a business, the staircase room which is adjacent to the petition schedule room was allotted to him where he started the stationary business and STD Booth. Licence fee for occupation of half the right of the property is being paid to the other landlord as proved by Ext.A7. These evidence had been analyzed properly by both the trial court as well as the appellate court.
7. Admittedly, the need put forward in the rent control petition is for
expansion of business of PW.2 since the staircase room now in his
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occupation is too small to such a stationary business. The said need for expansion of business is proved on evidence. The room in occupation of PW.2 and the schedule room are adjacent and it has been found on evidence that both the staircase room and schedule room can be used together for the business. The fact that PW.2 is running a stationary business was not disputed by RW.1 while examined. Though it is contended that Section 11 (3) has no application, we find that the said contention has no merit. In order to attract Section 11(8) a portion of the building should be in the occupation of the landlord and he should seek eviction for expansion of his business. Here, PW.2 is not the landlord and he is only the son of one of the landlords. Therefore, the occupation by PW.2 cannot be said to be occupation by the landlord. Further, the building is owned by two persons as joint owners. Hence Section 11(8) has no application. The bona fide need as put forth under Section 11(3) has been proved by cogent evidence and accepted by both the courts below. The appellate authority noted the difference between Sections 11(3) and Section 11(8) and found in the factual situation that it is a case of Section 11(3) and not 11(8). It also found that the need set up by the landlords is genuine and bona fide, which finding, in the facts and circumstances of the case, is found to be correct. The appellate court found that the tenant conceded that she has
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business in cashew nut at Karapparamba; which according to her, is being done in a room owned by her husband. But no evidence was adduced to show that the said room belonged to her husband. At any rate, the tenant is engaged in the business of cashew nut as evidenced by Exts.A4 and B1.
Thus, the tenant has other source of income and further, she has not shown that the main source of income for her livelihood is the business carrying on in the petition schedule room. The non availability of suitable building in the locality is also not proved. According to the tenant, there are rooms available in the locality but they are not having sufficient road frontage. The appellate court , after analyzing the evidence on record, found that there are several rooms available in the locality and therefore, the plea of the tenant that no other rooms are available in the locality cannot be accepted. In such circumstances, we do not find any ground to interfere with the concurrent findings of the courts below.
The revision is accordingly dismissed.
At this stage, learned counsel appearing on behalf of the revision petitioner/tenant sought a reasonable time to surrender vacant possession of the petition schedule premises. We have considered this aspect. Accordingly, we direct that the execution of the order of the court below will stand deferred for a period of six months on the following conditions:
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(i). The revision petitioner/tenant shall file an undertaking in the form of an affidavit before the executing court within three weeks from today agreeing to surrender vacant possession of the petition schedule premises on or before the expiry of a period of six months from today.
(ii). The revision petitioner/tenant shall deposit the entire arrears of rent, if any, within the aforesaid period of three weeks and she shall continue to pay an amount equivalent to the rent payable, towards compensation for use and occupation till possession is surrendered.
(iii). The tenant shall not induct any third party in to possession of the premises.
In case the revision petitioner/tenant commits default of any one of these conditions the order of eviction shall become enforcible forthwith and the respondents/landlords will be free to execute the order of eviction.
P.R. RAMAN, (JUDGE)
T.R. RAMACHANDRAN NAIR, (JUDGE)
knc/-
