IN THE HIGH COURT OF KERALA AT ERNAKULAM
## PRESENT :
THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN
MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932
RCRev..No. 115 of 2008()
-----------------------RCA.110/2006 of COURT OF DISTRICT JUDGE & RCAA, ERNAKULAM RCP.146/2005 of III ADDL.M.C.EKM (RENT CONTROL)
....................
REVISION PETITIONER/RESPONDENT/PETITIONER::
-----------------------------------------------------------------------------
RAJU N.ABRAHAM, AGED 48 YEARS, S/O. LATE ABRAHAM, NEDIYATHU HOUSE, MEEMBARA P.O., ERNAKULAM DISTRICT.
BY ADV. SRI.ABRAHAM K.JOHN
RESPONDENT/APPELLANT/RESPONDENT:
-----------------------------------------------------------
GOPALAKRISHNA SHENOY, S/O. LATE BABARAI SHENOY, PANAYICKAL HOUSE, TRIPOONITHURA P.O., ERNAKULAM DISTRICT.
ADV. SMT.R.RANJINI
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.**
## **---------------------------------R.C.R. No.115 of 2008**
**-----------------------------Dated this the 13[th] day of December 2010**
## **ORDER**
Balakrishnan, J.
The landlord is the revision petitioner. His claim for eviction under Section 11(3) of the Rent Control Act was allowed by the Rent Controller but that order was reversed by the Appellate Authority. Hence, he has come up in revision under Section 20 of Act 2/65.
2. The landlord contends that he bonafide needs the petition schedule building for conducting a bakery business. The need so projected is challenged by the tenant contending that earlier, RCP. 128/03 was filed by the landlord against one Premalatha Pai and that RCP was contested for nearly one and a half years and ultimately the landlord entered into a compromise with that tenant after getting the rent enhanced and receiving huge amount as advance.
R.C.R. No.115 of 2008
-: 2 :-
3. The tenant further contends that this RCP was filed by the landlord as the demand made by him for unreasonable enhancement of rent was not heeded to by the tenant. The landlord on the other hand contends that RCP. 128/2003 was filed against Sri.Achutha Pai and Smt.Premalatha Pai under Section 11(3) and also under Section 11(4)(i) of the Act who raised a dispute that the tenancy originally belonged to the deceased father of Sri.Achutha Pai and that Smt.Premalatha Pai is the wife of one of the sons of the deceased tenant and that there was no sub-lease at all. It was to avoid unnecessary contentions and time consuming process, he compromised that matter and a fresh lease deed was executed in favour of Sri.Pradeep Kumar, the son of the original tenant. Therefore, the plea raised by the tenant herein that the earlier RCP was compromised only because the tenants therein yielded to the demand for enhancement of rent is bereft of any merit.
R.C.R. No.115 of 2008
-: 3 :-
4. Even if it is accepted that the landlord has demanded and then got the rent enhanced that is no reason to say that the need is not bonafide since the landlord is always entitled to claim reasonable enhancement of rent periodically. Therefore enhancement of rent in respect of the building mentioned in RCP 128/03 and the indulgence shown by the landlord to that tenant cannot militate against the bonafides of the claim made in this case.
5. The other ground that has been put forward by the tenant is that at present the landlord is conducting gold loan business at Puthencruz and so he is not likely to come to Thrippunithura where the petition schedule building is situated as it is a far away place. But, the landlord says that he, in fact, wants to shift his gold loan business also to the petition schedule building after the petition schedule building is got evicted. To counter the plea raised by the tenant that there is no likelihood of the
R.C.R. No.115 of 2008
-: 4 :-
landlord vacating the building now occupied by him at Puthencruz, the landlord has filed an affidavit stating that he would vacate the premises immediately on getting the petition schedule building evicted.
6. Yet another ground urged by the tenant is that there is a well established and well known bakery by name 'Royal Bakery' in close proximity and so it would be imprudent to start a bakery in a tiny building spending about Rupees one lakh as it will not be profitable at all for the landlord. The fact that another bakery is situated in the very same area is not a reason to say that the landlord should not start another bakery in the very same premises. It is often seen that similar business concerns are seen concentrated or located in the very same area or locality. Therefore, that also is not a ground which can negative the claim put forward by the landlord.
R.C.R. No.115 of 2008
-: 5 :-
7. The fact that earlier the claim made by the landlord was to start a grocery business and that now he says that he wants to start the bakery businesses also is not a reason to say that the need put forwarded by the landlord is not bonafide. It is for the landlord to decide which business he should start. The landlord can change his decision regarding the nature of business or switch over to another business on a reconsideration of the profitability of the business. The evidence given by the landlord that he needs the petition schedule building for starting a bakery business is thus found to be true and acceptable.
8. It is true that the eviction under S.11(3) cannot be allowed to depend upon the whims and fancies of the landlord. Here, the need projected by the landlord is not a mere wish or an irrational desire. It is found to be natural, real, sincere and honest. The contention that the need projected by the landlord is only a pretense is found to be devoid of any merit. The plea raised by the tenant that the
R.C.R. No.115 of 2008
-: 6 :-
landlord cannot profitably conduct a bakery business by spending a sum of ` 1,00,000/- as stated by him in evidence is also found untenable, since for expanding the business, the landlord can also avail loan from banks or other financial institutions. Therefore, the argument advanced by the learned counsel for the tenant that the landlord was merely attempting to find out a pretense or pretext for getting rid of the tenant also does not appeal to us. It is seen that the appellate court ignored the weighty evidence adduced on the side of the landlord and proceeded on a wrong premise denying the just claim of the landlord. For the purpose of satisfying ourselves as to the legality, regularity or propriety of the order of the Appellate Authority, we have gone through the pleadings and evidence adduced in the matter. On a reappraisal of the evidence we have come to the conclusion that the findings of the Appellate Authority is wholly unreasonable.
R.C.R. No.115 of 2008
-: 7 :-
9. The decision in **Muhammed Basheer** v. **Mujib Rahman** reported in [2005(4) KLT 697] relied on by the learned counsel for the tenant is not applicable to the fact situation of this case. That was a case, where the plea raised by the landlord that there are no vacant rooms owned by his parents so as to enable him to start his business was proved to be incorrect. There the petitioner/landlord was residing along with his parents. He had no case that his parents did not permit him to occupy any of the rooms owned by him. At the first time of inspection, the commissioner found two shop rooms lying adjacent to the petition schedule shop rooms mentioned therein vacant. Since shop rooms were lying vacant when the petitioner therein wanted to start the alleged stationery business it was found that the need projected by the landlord is not real, sincere or honest but was just a mere desire or pretense. Since the landlord herein has explained the circumstances under which he happened to compromise
R.C.R. No.115 of 2008
-: 8 :-
with the tenant in RCP 128/2003 and admittedly the landlord has no other vacant shop room in his possession to start the intended bakery business we find, in reversal of the finding entered by the Appellate Authority that the need put forward by him is a genuine and honest one.
10. There is a concurrent finding that the tenant has failed to prove that he is entitled to the benefit of the second proviso to Section 11(3). There is no illegality, irregularity or impropriety in the finding so entered by the statutory authorities below. Hence, this revision petition is allowed granting an order of eviction under Section 11(3) of Act 2 of 1965 directing the tenant to put the landlord in possession of the petition schedule building.
11. The learned counsel for the tenant has made a fervent request to grant one year time to the tenant to vacate the petition schedule building. It is stoutly opposed by the learned counsel for the landlord. However, we think it proper to grant nine months' time from today to
R.C.R. No.115 of 2008
-: 9 :-
the tenant for vacating the petition schedule building
12. The revision petitioner shall file an affidavit before the Execution Court or Rent Control Court, as the case may be, undertaking to surrender the building peacefully to the landlord within nine months from today and undertaking further that arrears of rent, if any, due as on the date will be discharged within one month and further that with effect from 1[st] January, 2011 till the date of actual surrender, the respondent will pay ` 500/- per mensem as occupational charges to the landlord as and when it falls due. We make it clear that the respondent will get the benefit of time granted as above only if he files the affidavit within three weeks from today.
PIUS C. KURIAKOSE JUDGE
N.K.BALAKRISHNAN JUDGE.
jvt
## R.C.R. No.115 of 2008
-: 10 :-
