Rajesh and others v. Bijin K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 22ND DAY OF JUNE 2016/1ST ASHADHA, 1938** **RCRev..No. 156 of 2016 ()** **-------------------------IN RCA 45/2011 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 09-09-2015 IN RCP 88/2010 of ADDL.MUNSIFF COURT, KANNUR DATED 22-11-2010 --------------------------------------------------------** ## **REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS :** **-----------------------------------------------------------------------------------** ## **1. RAJESH** **AGED 47 YEARS, UNIQUE ELECTRICALS, SUB JAIL ROAD, KANNUR, RESIDING AT PARAMMAL HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O. CHOVVA, KANNUR-6.** ## **2. P.P.JAYAVALLY** **AGED 73 YEARS, W/O. VIJAYAN, PARAMMAL HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O. CHOVVA, KANNUR-6.** ## **3. P.JAYASHEELAN** **AGED 52 YEARS, S/O. VIJAYAN, PARAMMAL HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O. CHOVVA, KANNUR-6.** ## **4. P.RAJASREE** **AGED 49 YEARS, D/O. VIJAYAN, PARAMMAL HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O. CHOVVA, KANNUR-6.** ## **5. P.RAJESH** **AGED 47 YEARS, S/O. VIJAYAN, PARAMMAL HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O. CHOVVA, KANNUR-6.** **-2-** **-2-** ## **RCRev..No. 156 of 2016 ()** **--------------------------------------** ## **6. P.REJINA** **AGED 33 YEARS, D/O. VIJAYAN, PARAMMAL HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O. CHOVVA, KANNUR-6.** **BY ADVS.SRI.C.P.PEETHAMBARAN SMT.MINI.V.A.** ## **RESPONDENT(S)/RESPONDENT/RESPONDENT/PETITIONER :** **-----------------------------------------------------------------------------------------** **BIJIN K.** **AGED 29 YEARS, S/O. HARIDASAN, KUNHUMMANDI HOUSE, PUTHIYAPARAMBA, P.O.CHIRAKKAL R.S., KANNUR TALUK, KANNUR DISTRICT.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VS** ## K.SURENDRA MOHAN & MARY JOSEPH, JJ. ---------------------------------------- ## R.C.R. No.156 of 2016 ----------------------------------------- Dated this the 22[nd] day of June, 2016 ## ORDER ## K.SURENDRA MOHAN, J. The tenants are in revision, challenging the order of the Rent Control Court, Kannur in R.C.P.NO.88/2010, confirmed by the Rent Control Appellate Authority in R.C.A.No.45/2011. The respondent/landlord had filed the Rent Control Petition seeking eviction of the tenant under Section 11(3) of the Kerala Buildings(Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). According to the landlord, he needed the building for the purpose of starting a hotel business of his own. He is at present assisting his father in conducting a hotel business in the town. Therefore he desires to start a hotel on his own. The tenant is conducting electrical business. 2. The need of the landlord was disputed by the R.C.R. No.156 of 2016 -2- tenants, contending that, the landlord was in possession of the rest of the building, of which the tenanted portion forms a part. If the need of the landlord were bonafide, the same could have been satisfied by utilising the portion of the building that is in his possession. The benefit of the second proviso to Section 11(3) was also claimed. 3. The parties let in evidence on the above pleadings. The evidence consists of Exts.A1 to A3 documents on the side of the landlord and his oral testimony as PW1. On the side of the tenants, Exts.B1 to B4 documents were marked and the first appellant was examined as RW1. 4. The Rent Control Court considered the respective contentions of the parties, in the light of the evidence on record and found that the bonafide need that was put forward by the landlord was established. Therefore, an order of eviction was granted. Though the tenants carried the matter in appeal to the Rent Control Appellate Authority, the said authority has confirmed the order of the Rent Control Court. R.C.R. No.156 of 2016 -3- Before the Appellate Authority, at the instance of the tenants, an Advocate Commissioner was appointed and he visited the tenanted premises and has submitted Exts.C1 commission report and C2 plan. 5. According to Advocate C.P.Peethambaran, who appears for the revision petitioners, the specific pleading of the landlord in the Rent Control Petition was that, he was not in ownership or possession of any other suitable room. The tenants had joined issue on the above assertion. Evidence was also adduced regarding the above aspect. In spite of above, it is pointed out that the Rent Control Court had not framed a point for consideration on the above aspect, in its order. It is next contended that, since the landlord had not disclosed the availability of other vacant portions of the tenanted building, the said circumstance would cast a cloud on the bonafides of the need that has been put forward. The above aspect according to the learned counsel has been omitted to be considered by either the Rent Control Court or the Appellate R.C.R. No.156 of 2016 -4- Authority. It is vehemently contended that, since the landlord is in possession of another vacant building in this possession, the order of eviction ought not have been granted. Therefore, the counsel seeks interference with the judgment of the Appellate Authority. ## 6. Heard. 7. Though it is contended that, no point for consideration was raised with respect to the applicability of the first proviso to Section 11(3) of the Act by the Rent Control Court, we find that, the said aspect has been considered by the court in paragraph 12 of its order. It has been found that, when the landlord was examined as PW1 he had been questioned regarding the availability of the said building portions in his possession. He had replied that, the portions in his possession where situated just behind the tenanted shop room with no road frontage. For the said reason, according to him, the said portions are not suitable for the business that was proposed to be started by him. The above R.C.R. No.156 of 2016 -5- explanation was accepted by the Rent Control Court. 8. The Appellate Authority has also considered the above aspect. With respect to the contention of the Revision petitioner that the landlord had suppressed the availability of vacant rooms in his possession, the Appellate Authority has placed reliance on the decisions of this Court, including the one in Kunju v. Fathima reported in 2014 (3) KLT 563, to find that, it was not obligatory on the part of the landlord to have disclosed all the vacant rooms that were in his possession. We agree with the conclusion of the Rent Control Appellate Authority. 9. What is required to be noted is that, the first proviso to Section 11(3) of the Act is in fact a mandate to the Rent Control Court that no order of eviction shall be granted where the landlord is in possession and ownership of another building that is suitable for satisfying the need that is put forward. This Court has held that, it is for the tenant to point out that the landlord has another room in this possession. R.C.R. No.156 of 2016 -6- When it is so pointed out, the burden would be on the landlord to establish why the said room was not suitable for satisfying the need that was put forward by him. In the present case, the landlord has explained that the portion in this possession being just behind the tenanted shop room was not suitable for satisfying his need. Both the authorities below have accepted the explanation of the landlord that, the portion behind has no access to the main road. The same has been accepted as the special reason for the order of eviction that has been granted. In the above state of affairs, we do not find any infirmity in the findings entered by the Rent Control Court or the Appellate Authority. Both the authorities have found that the petitioner was not entitled to get the benefits of the Second proviso to Section 11(3) of the Act also. The said findings are also confirmed. 10. As a last submission, the counsel for the petitioner sought for the grant of some time to surrender vacant possession of the premises to the landlord. It is R.C.R. No.156 of 2016 -7- submitted that, the tenant has been in occupation of the premises since 1956 and that, he would require some time to search out a suitable premises or shop room. Having heard the counsel, we are satisfied that, it is necessary to grant time to the petitioner up to 31.12.2016, but subject to conditions. 12. In the result, this Rent Control Revision is ordered as follows: (i) This Rent Control Revision fails and is accordingly dismissed. (ii) The revision petitioner is granted time up to 31.12.2016 to surrender vacant possession of the premises to the landlords, on condition that, the revision petitioner swears to an affidavit before the Rent Control Court, Kannur in R.C.P.No.88/2010, within a period of two weeks from the date of receipt of a copy of this judgment, unconditionally undertaking to surrender vacant possession of the tenanted premises to the landlord on or before 31.12.2016. It shall be a further condition for the grant of such time that the tenant R.C.R. No.156 of 2016 -8- pays off the arrears of rent, if any, remaining unpaid and continues to pay rent in respect of the premises regularly and without any default until vacant possession is surrendered. (iii) It is made clear that in the event of the tenant failing to comply with any of the above conditions he shall forfeit the benefit of the above directions. Sd/K.SURENDRA MOHAN, JUDGE vs Sd/MARY JOSEPH, JUDGE /TRUE COPY/ PA TO JUDGE