R.C.Rev.No.94 of 2012 (Against the Judgment in RCA.42/2011 of I Addl. Rent Control Appellate Authority, Kollam in R.C.O.P No.10/2000 of the Rent Control Court, South Paravoor)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933 R.C.Rev.No.94 of 2012 () -----------------------(AGAINST THE JUDGMENT IN RCA.42/2011 of I ADDL.RENT CONTROL APPELLATE AUTHORITY, KOLLAM IN R.C.O.P NO.10/2000 OF THE RENT CONTROL COURT, SOUTH PARAVOOR) REVISION PETITIONER(S)/APPELLANT/RESPONDENT: ------------------------------------------- 1. CHACKO GEORGE(DIED), REPRESENTED BY HIS LEGAL HEIRS GRACY GEORGE W/O. THE LATE CHACO GEORGE, RESIDING AT MONSI NIVAS, ERAMCHERI, MEENADU VILLAGE, CHATHANNOOR. (ADDITIONAL 2ND COUNTER PETITIONER). 2. MONCY GEORGE S/O.THE LATE CHACKO GEORGE, RESIDING AT MONSI NIVAS, ERAMCHERI, MEENADU VILLAGE, CHATHANNOOR. (ADDITIONAL 3RD COUNTER PETITIONER). 3. ANCY MATHEW S/O.THE LATE CHACKO GEORGE, RESIDING AT MONSI NIVAS, ERAMCHERI, MEENADU VILLAGE CHATHANNOOR. (ADDITIONAL 4TH COUNTER PETITIONER). BY ADVS.SRI.M.K.CHANDRA MOHANDAS SRI.R.NIKHIL RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------ SATHEESH NAIR S/O.P.GOPINATHAN NAIR, BUSINESS RESIDING AT MANOR H AND C COMPOUND, KOCHUPILAMOODU KOLLAM (PO), PIN 691001. BY ADVS.SMT.K.G.BINDU, SMT.K.K.BINDU. SMT.T.S.MAYA (THIYADIL) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20-03-2012, ALONG WITH RCR. 95/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------R.C.R Nos.94, 95, 96, 99, 100 & 114 of 2012. --------------------------------------------Dated this the 20[th] day of March, 2012. ## **ORDER** ## **Ramakrishna Pillai, J** . Under challenge in these revisions, is the common order passed by the First Additional Rent Control Appellate Authority, Kollam, in R.C.A Nos.19, 21, & 42 to 48/2011 confirming the order of eviction under Section 11(3) dated 31/01/2011 in R.C.O.P Nos.2,3,4,5,8 and 10 to 13 of 2000 by the Rent Control Court, South Paravoor. 2. This is for the second time that the matter has come up in revision before this Court. The respondent landlady sought eviction of the revision petitioners from the petition schedule buildings which are portions in the ground floor of a large building situated at Chathannoor in Kollam District under Section 11(3) of the Act. 3. The rooms in the building belong to the respondent and his brother Suresh Chandran Nair. There are 17 rooms in the building which were in possession of different tenants. The landlords initiated separate rent control proceedings, out of which, nine was initiated by the **RCR Nos.94, 95, 96, 99, 100 & 114 of 2012** _**-:2:-**_ respondent. The need projected was that the respondent and his brother want to occupy the building for the purpose of conducting Consumer Super Market. The revision petitioners, who resisted the claim countered that the need projected was not bonafide and it was only a ruse for eviction. It was further contended that the respondent and his brother were well placed in life having other business concerns and they have other buildings in Kollam Corporation, which are more suited for the propose of conducting the proposed business. 4. The Rent Control Court ordered joint trial of all the petitioners and came to the conclusion that the need projected by the respondent stood established in the light of the oral evidence tendered by PW1, who was the manager of the landlords. The Rent Control Court also found that the tenants are not entitled to the protection of the second proviso to sub section (3) of Section 11. Thus, eviction under Section 11(3) was ordered. 5. Out of the tenants, 12 tenants preferred an appeal before the Rent Control Appellate Authority. By a common judgment, the Appellate Authority dismissed the appeals. The tenants took the matter in revision **RCR Nos.94, 95, 96, 99, 100 & 114 of 2012** _**-:3:-**_ before this Court in R.C.R Nos.94, 95, 96, 99, 100 & 114 of 2012. The main contention raised by them was that PW1 was only a Manager, who was not competent to testify regarding the genuineness or otherwise of the need projected by the landlords. 6. The respondent, per contra, on the strength of the decision of the Apex Court in _**C. Karunakaran v. T. Meenakshi ((2005) 13 SCC 99)**_ , contended that the necessity of examining a person, who needs a building, is an aspect which depends upon the facts and circumstances of each case. After hearing the rival submissions addressed at the Bar, this Court remanded the R.C.Ps to the Rent Control Court for fresh decision as to whether the need projected is bonafide. 7. However, the finding that the revision petitioners are not entitled to the protection of the second proviso was confirmed, the respondents landlords were given an opportunity to adduce evidence. It was further directed that, if any one of the landlord is examined, the Rent Control Court shall permit atleast one of the tenants to adduce or counter oral evidence. A time limit was also fixed for the disposal. 8. After remand, on the side of the landlords, the present **RCR Nos.94, 95, 96, 99, 100 & 114 of 2012** _**-:4:-**_ respondent gave evidence as PW2. Counter petitioner in R.C.P No.11/2012 gave additional evidence as PW12. Exts.B1 to B3 documents were also admitted in evidence. The trial court, after considering the evidence, found that the need alleged by the respondent landlords is bonafide. 9. The revision petitioners took the matter again in appeal before the Rent Control Appellate Authority, which after a reappraisal of evidence, confirmed the order of eviction by its impugned common award. 10. We have heard the submissions of the learned counsel for the revision petitioners and the learned counsel for the respondent. We have also perused the impugned award. 11. As already pointed out, the limited purpose of remand was to ascertain whether the need alleged was bonafide or not. The evidence of PW1 who is the Manager of the landlords is to the effect that the landlords are intending to start a consumer super market after effecting necessary modifications in the building. 12. Exts.A1 to A12 bank statements and income tax statements **RCR Nos.94, 95, 96, 99, 100 & 114 of 2012** _**-:5:-**_ relating to the business of the landlords were pressed into service to prove their capacity to start the proposed business. After the remand, the respondent sworn proof affidavit in support of the averments in the petitions. In cross examination, the respondent admitted that he is conducting business in cashew and related commodities and also functioning as a partner and proprietor of the firm. The argument advanced by the learned counsel for the revision petitioners is that the other partner was not examined. But, admittedly, he is the brother of the respondent. The evidence now tendered by PW1 and 2 are sufficient to prove the intention to start the business. 13. Another contention taken by the learned counsel for the revision petitioners was that the proposed business will not be a profitable one, as there are other shopping complexes in the nearby areas of Kottiyam, Parippally and Paravoor. But, we are of the definite view that it is for the landlord to decide as to where he should conduct his business. We are not prepared to accept the contention raised by the learned counsel for the revision petitioners that the need alleged by the respondent is only a ruse for eviction. **RCR Nos.94, 95, 96, 99, 100 & 114 of 2012** _**-:6:-**_ 14. We are of the view that both the courts below have appreciated the evidence in the correct prospective and arrived at the conclusion. The impugned order does not from suffer any illegality, impropriety or irregularity, which calls for interference under Section 20 of the Act. 15. In the result, the revision petition fails and will stand dismissed. 16. When our decision was made known to the learned counsel for the revision petitioners, he submitted that all the revision petitioners other than the revision petitioners in RCR Nos.95/12 and 99/12 be given one year time to give vacant possession of the petition schedule premises to the respondent. This was opposed tooth and nail by the learned counsel appearing for the respondents. 17. However, having bestowed our anxious consideration in the matter, we are of the view that time can be granted up to 31/12/2012 subject to the following conditions: (1) The revision petitioners will discharge entire arrears of rent as on date to the respondent within one month from today. (2) The revision petitioners shall file an affidavit within one month from today, before the Execution Court or the Rent Control Court, as the **RCR Nos.94, 95, 96, 99, 100 & 114 of 2012** _**-:7:-**_ case may be, undertaking to give peaceful surrender of the premises by the revision petitioners and undertaking further to pay monthly occupational charges at the current rate of rent with effect from 20/03/2012 till the date of surrender. (3) The executions proceedings pending, if any, shall be kept in abeyance for two months. We make it clear that the revision petitioners will get the benefit of time as allowed, only if they file the affidavit and honour the undertakings contained therein and also on discharge of the entire arrears of rent as aforesaid. sd/- **PIUS C. KURIAKOSE JUDGE** sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj **RCR Nos.94, 95, 96, 99, 100 & 114 of 2012** _**-:8:-**_