M. D. Raveendran v. T. Devarajan (dead) LRs Shyamala, Shinod, Harishlala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** **RCRev..No. 265 of 2013 ()** **--------------------------** ## **AGAINST THE ORDER/JUDGMENT IN RCA 45/2012 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE- II AGAINST THE ORDER/JUDGMENT IN RCP 82/2010 of PRL.M.C.,KOZHIKODE-II** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **--------------------------------------------------------------------------------------** **M.D. RAVEENDRAN, 63/13, S/O.DORAIKANNU, 5/3350 "DEAR SALOON" MAVOOR ROAD, POST PUTHIYARA KALATHILKUNNU AMSOM DESOM, KOZHIKODE THALUK.** ## **BY ADV. SRI.MANJERI SUNDERRAJ** ## **RESPONDENT(S)/RESPONDENTS/PETITIONERS:** **----------------------------------------------------------------------------** **1. T.DEVARAJAN (DEAD) LR'S SHYAMALA, W/O.T.DEVARAJAN, "DEVARAGAM" THIRUTHIYAD PUTHIYARA POST, KALATHINKUNNU AMSOM, DESOM KOZHIKODE THALUK.** ## **2. T. SHINOD, S/O.T.DEVARAJAN "DEVARAGAM", THIRUTHIYAD PUTHIYARA POST KALATHINKUNNU AMSOM, DESOM, KOZHIKODE THALUK.** ## **3. T. HARISHLALA, S/O.T.DEVARAJAN "DEVARAGAM", THIRUTHIYAD PUTHIYARA POST KALATHINKUNNU AMSOM, DESOM, KOZHIKODE THALUK.** **R1 BY ADV. SRI.V.VSURENDRAN CAVEATOR R. BY ADV. SRI.V.V.SURENDRAN** ## **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **T.R. RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **--------------------------------------------------** R.C.R. No.265 of 2013 **--------------------------------------------------** Dated this the 8[th] day of January, 2014 ## **O R D E R** ## _**Kemal Pasha, J.**_ The petitioner herein, who is tenant in R.C.P.No.82 of 2010 of the Rent Control Court, Kozhikode, has challenged the findings against him by the Rent Control Court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'), before the Rent Control Appellate Authority, Kozhikode through R.C.A. No. 45 of 2012. Even though the learned Rent Control Appellate Authority has found the first limb of the second RCR 265/2013 -: 2 :- proviso to Section 11(3) of the Act in favour of the tenant, it was held that the tenant is not entitled to the protection of the second proviso to Section 11(3), as the tenant has failed to prove the second limb of the second proviso. 2. The Rent Control Court found that the need urged by the landlord is _bonafide_ , and allowed the RCP under Section 11(3) of the Act. The Rent Control Appellate Authority has concurred with the finding regarding the _bonafide_ requirement of the landlord under Section 11(3) of the Act, and dismissed the RCA. 3. Heard Sri.Manjeri S. Sunder Raj, learned counsel for the revision petitioner, and Sri.V.V.Surendran, learned counsel for the respondent. 4. According to the landlord, he is in _bonafide_ need of the scheduled shop room for accommodating his son, for the conduct of an Internet Cafe, for which the son has necessary expertise. The tenancy is admitted. The present argument of the learned counsel for the petitioner is that RCR 265/2013 -: 3 :- when the first limb of the second proviso to Section 11(3) of the Act was found in favour of the tenant by the Rent Control Appellate Authority, the tenant is entitled to an opportunity to prove that he is entitled to get the benefit of the second limb of the second proviso to Section 11(3) of the Act also. It seems that the tenant has filed applications for serving interrogatories, for remanding the matter for adducing further evidence etc. 5. The tenant is conducting a barber shop in the building. Even though it is a profession, it is trite that such a profession will also come under the category of trade or business, as envisaged under Section 11(3) of the Act. At the same time, we do not find anything to interfere with the concurrent findings entered by both the authorities below on the _bonafide_ requirement of the landlord for accommodating his son in the scheduled shop room. There is no case for the tenant that either the landlord or his son has any other building of their own lying vacant for the purpose of the RCR 265/2013 -: 4 :- Internet Cafe. 6. When the landlord was examined as PW1, the learned counsel for the tenant in cross examination had put a question whether any vacant room was available for the conduct of the proposed business of the son in the said locality. PW1 answered in the negative. By harping upon the said answer, it has been argued by the learned counsel for the tenant, Sri.Manjeri Sunder Raj that even when the landlord has admitted that there are no vacant shop rooms available in the locality for the purpose of the son of the landlord, it stands proved that no other buildings are available in the locality for the tenant to shift his business also. The said argument seems to be a too hyper technical to be appreciated, to which we are not impressed. When such a question was put to the landlord relating to the building, it has to be presumed that the landlord has understood it in the sense that the landlord or son of the landlord has no vacant building of their own for the purpose RCR 265/2013 -: 5 :- of the son of the landlord _._ The tenant has no contention that the claim of the landlord is hit by the first proviso to Section 11(3) of the Act. 7. Regarding the nature and power of the revisional court to entertain fresh evidence or further evidence, learned counsel for the tenant has invited our attention to the decision of this Court in _**Chacko v. Lakshmiamma** (1997(1) KLT 12)_ wherein it was held as follows: _“Further, it has now been settled that the Revisional Court, under S.20 of the Act, is also entitled to admit fresh evidence - Vide Kerala Sugar Agencies v. Jose - 1992(1) KLT 635.”_ In _**Kerala Sugar Agencies v. Jose** (Supra),_ it was held that taking additional evidence or making further records at the revisional stage can be justified only if it serves the purpose of enabling the Revisional Authority to effectively exercise revisional powers, and except for the aforesaid function, revisional forum cannot be converted into a evidence RCR 265/2013 -: 6 :- collecting forum. 8. We are concerned only about the legality, regularity or propriety of the decision taken by the Rent Control Appellate Authority in the matter for appreciating whether the decision rendered is legal, regular or proper and any further evidence, as is presently attempted to let in by the tenant, cannot be entertained. 9. Even though the learned counsel for the petitioner has invited our attention to the decision in _**Sadanandan v. Kunheen** (1991(2) KLT 628),_ wherein it was held that the evidence relating to protection of the second proviso to Section 11(3) of the Act from the part of the tenant can be confined to a positive affirmation by the tenant before Court, on scanning the evidence, we do not find any such positive assertion or affirmation from the part of the tenant. 10. Even though we are not expected while sitting in this revisional jurisdiction, we have carefully scanned the RCR 265/2013 -: 7 :- evidence adduced before the Rent Control Court. It seems that the tenant has not made any earnest effort to enquire whether there is any alternate accommodation available in the locality for the tenant to shift his business. In fact, it has come out in evidence that the daughter of the tenant has already been given in marriage and his only son is gainfully employed and working in Australia. Of course, the learned Rent Control Appellate Authority has found that the main source of income for the livelihood of the tenant is the income from his profession and the business being carried out in the scheduled shop room. At the same time, it seems that the tenant has failed to prove the second limb of second proviso to Section 11(3) of the Act. When both the limbs are conjunctive, it seems that the tenant has failed to prove that he is entitled to the protection of the second proviso to Section 11(3) of the Act. Matters being so, we do not find any merit in this Rent Control Revision. 11. Finally, Sri.Manjeri Sunderraj, learned counsel RCR 265/2013 -: 8 :- appearing for the revision petitioner has sought for a larger time to vacate the premises. 12. In the result, - (a) This Rent Control Revision is dismissed. (b) The tenant is granted time upto 30.09.2014 to vacate the premises and deliver possession to the landlord on the following conditions:- (i) The petitioner will file an affidavit, within a period of one month from today, unconditionally undertaking to vacate the petition schedule premises on or before 30.09.2014 before the Execution Court or the Rent Control Court as the case may be. (ii) The tenant shall pay charges towards use and occupation of the building at the current rent rate from today till he gives vacant possession of the premises, to the landlord. (iii) Execution proceedings, if any, pending RCR 265/2013 -: 9 :- before the executing court shall be kept in abeyance upto 30.09.2014, if the aforesaid condition is satisfied. (iv) If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to the tenant as per this order will stand recalled automatically and the executing court shall effect delivery forthwith. **Sd/- T.R. RAMACHANDRAN NAIR, JUDGE** ## **Sd/- B. KEMAL PASHA, JUDGE** ul/- [True copy] _P.S. to Judge_