M. Kamala, Premasudha Raveendranath, Pramod Kumar M., M. Praveesh v. KANIYERAKKAL PUTHIYA PURAYIL NASRI, PRASEETHA DEVARAJ

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936 RCRev..No. 221 of 2014 () -------------------------AGAINST THE JUDGMENT IN RCA 102/2009 OF RENT CONTROL APPELLATE AUTHORITY/ ADDL.DISTRICT COURT-I, THALASSERY AGAINST THE ORDER IN RCP 9/2006 of RENT CONTROLLER(PRINCIPAL MUNSIFF), KANNUR DATED 30-06-2009 ## REVISION PETITIONERS/APPELLANTS/LRS OF RESPONDENT: ------------------------------------------------------------------------------------------ 1. M.KAMALA, AGED 69 YEARS - W/O.LATE KUNHIKANNAN, RESIDING AT 'SUDHA', POOTHAPPARA AZHIKODE, KANNUR-9. 2. PREMASUDHA RAVEENDRANATH, AGED 49 YEARS W/O.RAVEENDRANATH, RESIDING AT 'RED SUN', PALLIYAMOOLA THE KRISHNA BEACH, P.O.ALAVIL, KANNUR. 3. PRAMOD KUMAR.M., AGED 48 YEARS - S/O.KUNHIKANNAN, RESIDING AT 'SUDHA', POOTHAPPARA AZHIKODE, KANNUR-9. 4. M.PRAVEESH, AGED 43 YEARS S/O.KUNHIKANNAN, RESIDING AT SIVASAKTHI APARTMENTS THE KRISHNA BEACH, PALLIYAMMOOLA, P.O.ALAVIL KANNUR-8. BY ADVS.SRI.N.NAGARESH SRI.SHAJI THOMAS SRI.K.BABU SRI.T.V.VINU ## RESPONDENTS/RESPONDENTS/RESPONDENT/PETITIONER: ------------------------------------------------------------------------------------- 1. KANIYERAKKAL PUTHIYA PURAYIL NASRI,, AGED 39 YEARS D/O.MUSTHAFA HAJEE, RESIDING AT MAHROOF, AYIKKARA KANNUR-670017. 2. PRASEETHA DEVARAJ,, AGED 45 YEARS D/O.KUNHIKANNAN, 'THEJUS', NAALUMUKKU P.O.CHIRAKKAL, KANNUR-670011. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------R.C.R.No.221 OF 2014** **-------------------------------------------------DATED THIS THE 19[th] DAY OF AUGUST, 2014** ## **ORDER** ## **K.T.SANKARAN, J** . The petitioners, legal representatives of the original tenant, challenge the concurrent findings of the Rent Control Court as well as the Appellate Authority under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act. 2. The 1[st] respondent filed R.C.P.No.9/2006 on the file of the Rent Control Court, Kannur against the predecessor-in-interest of the revision petitioners under Section 11(2)(b), 11(3) and 11(4) (iii) of the Act. The ground under Section 11(2)(b) was not pressed. The Rent Control Court by the order dated 30.6.2009 allowed the R.C.P. under Sections 11(3) and 11(4)(iii) of the Act. The legal representatives of the tenant filed R.C.A.No.102/2009 before the Rent Control Appellate Authority, challenging the order of the Rent Control Court. The Appellate Authority confirmed the findings of the Rent Control Court. 3. Admittedly, the petition schedule building was leased out RCR.221/14 -2- to the predecessor-in-interest of the petitioners(hereinafter referred to as the tenant) on 18.10.1991 fixing a monthly rent of ₹900/-. The rent was subsequently enhanced to 1,200/-. The₹ building was leased out for running jewellery business for the tenant. The tenant started a jewellery under the name and style “Kunhikannan Jewellery”. The building is in the heart of Kannur town. The business of the tenant flourised. He acquired another building of his own and shifted the jewellery business to that building. Admittedly, “Kunhikannan Jewellery” is being conducted in the tenant's own building, having sufficient space for the same, which is situated in the same town. According to the tenant, he is conducting business in books in the petition schedule building. The tenant stated that “Kunhikannan Jewellery” was shifted to the new building in 1997 and even thereafter the landlady accepted rent, knowing full well that another business was being conducted in the petition schedule building. The tenant also contended that the business in books cannot be shifted to the newly acquired building, for want of space in the new building. RCR.221/14 -3- 4. The landlady contended that she is unemployed and she wants to conduct garment business in the petition schedule building. The tenant denied the same. It has come out in evidence that the landlady is residing abroad with her husband. She stated that she intends to settle down in her native place after completion of the plus two course of her daughter. 5. On the basis of the oral and documentary evidence in the case, the Rent Control Court held that the bona fide need put forward by the landlady is genuine. The tenant raised a contention that the landlady owns other buildings in the same locality. The Rent Control Court held that the tenant did not adduce any evidence on that aspect and there is no material before court to hold that the landlady is having vacant possession of another building in the same locality. The Rent Control Court also considered whether the tenant is entitled to the benefit of the second proviso to Section 11(3) of the Act and held against the tenant. The learned counsel for the petitioners submitted that the tenant never raised a contention that he is entitled to the benefit of the second proviso to Section 11(3) of the Act. RCR.221/14 -4- 6. The main objection raised by the tenant was that he having started the business in books in the petition schedule building long back without any objection from the landlady, the sufficiency of the space in the new building is to be taken into account with reference to the present business conducted in the petition schedule building. The tenant was examined before court. He stated that he does not know what business is being run in the petition schedule building and that he does not know who conducts that business. There is no material before Court to arrive at the conclusion that the business in books is being conducted by the tenant with the permission of the landlady and that the space available in the new building is not sufficient for accommodating the business presently conducted in the petition schedule building. 7. The Rent Control Court relied on the decision of a Division Bench of this Court in **Kanhangad Co-operative M.S.Society** v. **Ganapathy Kamath** (1995(1)KLT 681), wherein it was held that as the landlord is given the right to apply for eviction on the ground envisaged in Section 11(4)(iii), it is open RCR.221/14 -5- to the landlord either to apply for eviction or to refrain from so applying or he may wait for some more time thinking that the nature and size of the tenant's business may dwindle down. The Rent Control Act does not stipulate any time limit for the landlord to apply for eviction on the ground of Section11(4)(iii). Section 11(4)(iii) of the Act says that the landlord would be entitled to apply before the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, if the tenant already has in his possession or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village. We are of the view that the Rent Control Court was right in holding that there is no bar for the landlady in applying for eviction under Section 11(4)(iii), after the expiry of several years from the acquisition of the new building by the tenant. 8. Another contention is raised by the tenant that the landlady has no experience in doing the business in garments. The Rent Control Court negatived that contention relying on the decision **Kurian K.Kuriakose** v. **Usha Cherian** (2008(1) KLT RCR.221/14 -6- 739). In that judgment, a Division Bench of this Court, relying on the judgment of the Supreme Court in **Dattatraya Laxman** **Kamble** v. **Abdul Rasul Moulali Kolkunde** [(1999) 4 SCC 1] held that previous experience to conduct business is not a necessary pre-condition for seeking eviction on the ground of bona fide need to conduct business. 9. The Appellate Authority on reappraisal of the evidence in the case, confirmed the order of the Rent Control Court. The findings of the authorities below are concurrent. The findings are findings of fact. Normally, the revisional court would not interfere with the findings of fact rendered by the authorities below, unless there is illegality, irregularity or impropriety as stated in Section 20 of the Act. There is no such illegality, irregularity or impropriety in the order and judgment impugned. Accordingly, the revision fails and it is dismissed. Lastly, the learned counsel for the revision petitioners sought one year's time to vacate the petition schedule building. Taking into account the facts and circumstances of the case, we are inclined to grant time till 31.1.2015 to the tenants (revision RCR.221/14 -7- petitioners) to vacate the petition schedule building on condition that they shall file an affidavit before the Rent Control Court within one month from today unconditionally undertaking to vacate the petition schedule building on or before 31.1.2015 and also on condition that they shall deposit before the Rent Control Court, the arrears of rent, if any, within one month from today and continue to deposit the monthly rent before the Rent Control Court on or before the 10[th] of the succeeding months. If the tenants fail to comply with any of the conditions mentioned above, the landlord would be entitled to get the order of eviction executed forthwith. If the tenants comply with the conditions mentioned above, the order of eviction shall not be executed till 31.01.2015. ## Sd/- **K.T.SANKARAN** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn