R.C.R. No.212 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932** **RCRev..No. 212 of 2007()** **------------------------** **RCA.45/2003 of RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.153/1999 of MUNSIFF COURT, THALASSERY** **....................** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT/TENANT:** **----------------------------------------------------------------------------------------------** **C.H.PREMARAJAN, S/O.LATE POKKAN VAIDYAR, AGED 53 YEARS, BUSINESSMAN, RESIDING AT CHAKKARA HOUSE, P.O.KIZHUNNA, THOTTADA, EDAKKAD AMSOM, KIZHUNNA DESOM, KANNUR TALUK, KANNUR DISTRICT.** **BY ADV. SRI.R.SURENDRAN** ## **RESPONDENT(S): APPELLANTS/PETITIONERS/LANDLORDS:** **------------------------------------------------------------------------------------------** **1. K.P.PRAVEEN KUMAR, S/O.LATE KUMARAN, AGED 54 YEARS, RESIDING AT VANNATHANPOYIL HOUSE, P.O.KIZHUNNA, THOTTADA, EDAKKAD AMSOM, KIZHUNNA DESOM, KANNUR TALUK, KANNUR DISTRICT.** **2. MYDHILI, W/O.LATE KUMARAN, AGED 76 YEARS, RESIDING AT VANNATHANPOYIL HOUSE, P.O.KIZHUNNA, THOTTADA, EDAKKAD AMSOM, KIZHUNNA DESOM, KANNUR TALUK, KANNUR DISTRICT.** **R1 & R2 BY ADV. SRI.K.V.SOHAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **..2/-** **...2....** ## **RCR.NO.212/2007** ## **O R D E R** **No representation. RCR is dismissed for default. 26/05/2010 Sd/- Pius C.Kuriakose, Judge Sd/- C.K.Abdul Rehim, Judge Order on I.A.NO.1633/2007 in RCR No.212/2007 Dismissed 26/05/2010 Sd/- Pius C.Kuriakose, Judge Sd/- C.K.Abdul Rehim, Judge /True Copy/ P.S.to Judge** **kss** ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ## **---------------------------------R.C.R. No.212 of 2007** **-----------------------------Dated this the 14[th] day of December 2010** ## **O R D E R** ## N.K.Balakrishnan, J. The tenant is the revision petitioner. The landlord filed petition for eviction under Section 11(3) of Act 2 of 1965. The need projected by him that he intends to start a fancy and stationery business in the petition schedule building was resisted by the tenant/revision petitioner contending that the landlord had earlier filed a petition for eviction as RCP. No.195/1991 and got vacant possession of the petition scheduled room in January 1993 and it was thereafter that the said room was let out by him to the revision petitioner and so he contends that the need urged by the landlord in this case is not bonafide. It was also contended that the landlord is having another building in his possession in the very same R.C.R. No.212 of 2007 -: 2 :- larger building, which if the landlord actually needs can occupy. After evaluating the evidence of PW1 and RW1 and Exts.A1 to A17 and B1 to B13, the learned Rent Controller found that the landlord could not prove the bonafide need urged by him. It was also found that the claim made under Section 11(3) is hit by the first proviso there to. The Appellate Authority after analysing the evidence in entirety came to the conclusion that the appellants are entitled to get an order of eviction under Section 11(3) of the Act. 2. The evidence would show that there are three rooms in the ground floor of which one room is the petition schedule room. The main contention urged before the Rent Controller was that 1[st] respondent herein who was examined as PW1 had earlier filed RCP No.195/1991 in respect of petition schedule room against his tenant Mr.Bharathan and eviction was ordered under Section 11(4)(v) and 11(2)(b) of the Act. That order was dated 30.1.1993. It appears that the tenant Sri.Bharathan did not contest the matter further and thus, PW1 could get possession of that building. It was R.C.R. No.212 of 2007 -: 3 :- thereafter the petition schedule room was let out to the revision petitioner as per kachit dated 1.4.1993. The RCP was filed by PW1 in 1999. It was explained by PW1 that he was bed ridden for about 8 years due to Psoriasis. Exts.A2 series to A5 series, the treatment records and the evidence given by PW1 instilled confidence in the mind of the learned Appellate Authority to hold that PW1 was practically bed ridden during that period. It cannot be disputed that a person suffering from Psoriasis in an aggravated form, cannot appear in public or sit in the shop for conducting business. PW1 has stated that after he recovered from his illness he filed the RCP in 1999. It was stated that he let out the petition schedule building to the tenant (RW1) since, when he got possession of the building in 1993 he was practically bed ridden due to Psoriasis. It may be remembered that in RCP.195/1991 PW1 got eviction not claiming bonafide need under Section 11(3) but under Section 11(4)(v) and 11(2)(b) of the Act. Therefore, the contention advanced by the learned counsel for the revision petitioner that the earlier RCP was filed only to evict R.C.R. No.212 of 2007 -: 4 :- the former tenant and to let it out to another is devoid of any merit. 3. The other ground canvassed by the revision petitioner is that there is another room in that main building and it is in the possession of the respondent. That room is situated upstairs. That apart there is evidence to hold that a laboratory is being conducted in that room by the brother of PW1. It is stated that PW1 is getting income from out of the business conducted therein. Even if it is assumed that PW1 is getting a meagre income from that lab, that will not dis-entitle PW1, the landlord from getting eviction of the petition schedule building if his need is otherwise proved bonafide. The learned Appellate Authority has, after going through the documentary evidence relating to the aforesaid room arrived at a conclusion that the said room was not lying vacant but was occupied by PW1's brother Mr.Pradeep Kumar. So much so, that ground also does not survive to help the revision petitioner. 4. There is another room bearing No.IV/632 wherein a R.C.R. No.212 of 2007 -: 5 :- pharmacy by name Kumar Pharmacy is being run. PW1 is stated to be a partner of that business. That room belongs to PW1's brother Mr.Prakash Kumar. It was vehemently argued by the learned counsel for the revision petitioner that PW1 did not state the income he was getting from his agricultural property and from Kumar Pharmacy and as rent or income from the room upstairs. Even if PW1 is getting income from his agricultural properties and also as share of Kumar Pharmacy that does not mean that the landlord should not conduct a business in his own premises. 5. When the matter was pending before this Court, it was submitted by the learned counsel for the revision petitioner that the respondent is in possession of another room lying to the west of the petition schedule room and so the claim made by the landlord is hit by the first proviso thereto or at any rate it would affect the bonafides of the claim under Section 11(3). To substantiate his contention, a commission was taken out at the instance of the revision petitioner. The commissioner inspected the building on R.C.R. No.212 of 2007 -: 6 :- 13.11.2010 and filed report and a sketch, which have been marked by this Court as Ext.C1 and C1(a). On going through the commissioner's report it could be seen that the petition schedule room bearing old No.IV/633 is the middle room situated in the ground floor. On its northern side is Kumar Pharmacy. PW1's brother Mr.Prakash Kumar is the owner of that room. On the southern side of the petition schedule building there is room No.IV/634 which is owned by Mr.Premkumar, the brother of PW1. The sketch produced along with the report shows that there is an area measuring about 105 sq.feet behind the petition schedule room. There is no direct entry from the petition schedule room to this room. Similarly there is a hind room to the shop room bearing No.IV/634 also. Another hind room is there to the room bearing No.IV/632 held by Mr.Prakash Kumar. It was reported by the commissioner that there is no direct entrance or door from the hind room to go out. On the northern side of the three hind rooms a rolling shutter was seen fixed. That hind portion, according to PW1 was used as a waiting room R.C.R. No.212 of 2007 -: 7 :- for the patients. This room is behind 'Kumar Pharmacy'. It was stated that formerly Dr.Sajeev was practising in the hind room and the room behind 'Kumar Pharmacy' was used as waiting room for patients. The name board of the doctor and other materials were seen by the Advocate Commissioner. From the waiting room mentioned above, there is an entrance to the room situated behind the petition schedule building. Since it was not a matter which was pleaded in the original counter statement and since it was only a subsequent event pointed out by the revision petitioner there was no occasion for the landlord to give a detailed explanation regarding the same. 6. Sri.K.V.Sohan, the learned counsel for the landlord has drawn our attention to a copy of the registered will as per which PW1 and his brothers got right over the respective shop rooms. The schedules of properties given to PW1 and his brother Prakash Kumar would make it clear that in respect of the aforesaid hind room PW1 has no absolute right since that room was jointly allotted to PW1 and his brother Prakash R.C.R. No.212 of 2007 -: 8 :- Kumar. Therefore, it will be a futile exercise on the part of the revision petitioner to contend that PW1 is the absolute owner of the hind room. The contention that the landlord is dis-entitled to get an order of eviction under Section 11(3) since he is the owner in possession of hind room mentioned above, thus, falls to the ground. PW1 is only a co-owner of that building/room behind the petition scheduled building. Tenant is not entitled to the benefit of the first proviso to Section 11(3) if the landlord is only a co-owner of the other building. Co-ownership over a building will not dis-entitle a landlord from claiming eviction under Section 11(3). (See **Asher** v. **Hassankutty Hajee** [2004 (2) KLT 446]. The further is fact that this room is only a hind room having no direct access to the road. This is a special reason to negative the contention advanced by the learned counsel for the revision petitioner. 7. The evidence given by PW1 that he bonafide needs the petition schedule building for staring a business in fancy and stationery articles was rightly accepted by the learned R.C.R. No.212 of 2007 -: 9 :- Appellate Authority. There is no illegality, irregularity or impropriety in the finding so entered by the learned Appellate Authority. There is a concurrent finding that the revision petitioner has failed to prove both the limbs of the second proviso to Section 11(3) of the Act. As such the order of eviction passed by the Appellate Authority under Section 11 (3) of the Act requires no interference. 8. At this juncture, Sri.R.Surendran, the learned counsel for the revision petitioner made a fervent request to grant one year time to the tenant to vacate the petition schedule room. This request was strongly opposed by Sri.K.V.Sohan, the learned counsel for the landlord. Considering all the aspects, we find it just and proper that the tenant is given time till 31.12.2011 but on certain conditions. In the result, this revision petition is dismissed. The revision petitioner is granted time till 31.12.2011 to vacate the premises on the following conditions:- The revision petitioner shall file an affidavit within three weeks from today undertaking that he will surrender R.C.R. No.212 of 2007 -: 10 :- the vacant possession of the petition schedule building to the landlord on or before 31.12.2011 and further that he will pay or deposit all the arrears of rent till date within one month from this date and further that he will pay the occupational charges to the landlord at the rate of the monthly rent as and when it falls due. It is made clear that the tenant will get the benefit of time to surrender till 31.12.2011 only if he files an affidavit on time and honours the undertakings given by him. **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt