Sabu V.S. v SNDP Branch No.395

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** **RCRev..No. 34 of 2019** **AGAINST THE ORDER/JUDGMENT IN RCA 40/2017 OF THE ADDITIONAL DISTRICT COURT-III, ALAPPUZHA (RENT CONTROL APPELLATE AUTHORITY) DATED 24-11-2018 FILED AGAINST THE ORDER/JUDGMENT IN RCP 5/2016 of RENT CONTROL COURT, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/RESPONDENT :** **SABU.V.S., AGED 60 YEARS, S/O.SADANANDAN, VALAYIL HOUSE, PUNNAPRA MURI, PARAVOOR VILLAGE, PUNNAPRA P.O., ALAPPUZHA.** **BY ADV. SMT.I.SHEELA DEVI** ## **RESPONDENT/RESPONDENT/PETITIONER :** **SNDP BRANCH NO.395, PARAVOOR NORTH, PARAVOOR, PUNNAPRA P.O., ALAPPUZHA, REPRESENTED BY ITS SECRETARY, G.RAJU, AGED 53, S/O.GOVINDAN, KODAVANA VELIYIL, PUNNAPRA NORTH P.O., ALAPPUZHA, PIN-688 004.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No. 34 of 2019 2 ## **ORDER** ## **Harilal, J** The revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently by the courts below under Section 11(3) and 11(7) of the Kerala Buildings (Lease and Rent Control ) Act, 1965. (Parties are referred to as in the rent control petition). According to the averments in the rent control petition, the petitioner _bona fide_ needs the petition schedule shop room for the purpose of housing its office therein. The petitioner is not in possession of any other vacant building in that area for the functioning of its office. The respondent was conducting his business in the petition schedule shop room and now he has started his business in his own residential property also. It is further contended RCRev..No. 34 of 2019 3 that the building wherein the office of the petitioner is housed is very old and is in a dilapidated condition and it may fall in any moment. So it is not at all safe or convenient to continue the functioning of the office in that building. The respondent is not mainly depending on the income derived from the business in the tenanted premises and several other buildings are available in the locality to shift his business from the tenanted premises. So also it is averred that the petitioner is a public religious organisation, having privilege under Section 11(7) of the Act and in that count also the petitioner is entitled to get an order of eviction under the _bona fide_ need. The respondent has resisted the claim for eviction, contending that the petitioner has other buildings of their own, for the functioning of their office, and that he is mainly RCRev..No. 34 of 2019 4 depending on the income from the business carried on in the tenanted premises and no other buildings are available in the locality to shift his business from the tenanted premises and the alleged need is ruse for eviction only. With the aforesaid averments the respondent prayed for dismissal of the rent control petition. 2. On the rival pleadings both the parties adduced evidence and after considering the evidence on record, the court below concurrently found that the need projected in the petition is _bona fide._ The claim for eviction is not barred by the first proviso to Section 11(3) of the Act and the respondent is not entitled to get protection under the proviso to Section 11(3) of the Act and that the petitioner is entitled to get an order of eviction under Section 11(7) of the Act. RCRev..No. 34 of 2019 5 The legality and propriety of the aforesaid findings, whereby the courts below have granted an order of eviction, have come up in revision before us. 3. Heard the learned counsel for the petitioner. 4. The sum and substance of the argument advanced by the learned counsel for the revision petitioner is that the courts below have failed to appreciate the evidence on record under _bona fide_ need in its correct perspective. According to the learned counsel for the revision petitioner, the evidence on record would prove that the claim for eviction was barred by first proviso to Section 11(3) of the Act as the petitioner has another building of their own in their possession to start their office. But the courts below have failed to appreciate the said evidence in its correct perspective. RCRev..No. 34 of 2019 6 5. In view of the argument at the bar, the question that arises for consideration in this revision petition is whether there is any illegality or impropriety in the findings, whereby the courts below have granted an order of eviction under Section 11(3) of the Act. Going by the impugned order, it is seen that the specific case pleaded by the petitioner in Ext.A1 notice and in the rent control petition is that the buildings, wherein the present office of the petitioner is being functioned, is dilapidated and is about to collapse and for the purpose of shifting the office from the dilapidated room, the petition schedule shop room is required. In order to substantiate the said contention, the Secretary of the petitioner was examined as PW1 and he has testified _bona fides_ of the need in terms of the averments in Ext.A1 notice and in the rent control RCRev..No. 34 of 2019 7 petition. The courts below concurrently observed that nothing has been brought out in cross examination to discredit the evidence of PW1. In the absence of any material evidence contrary to the aforesaid findings, we do not find any reason to interfere with the findings of the courts below, whereby the courts below have reposed in the oral testimony of PW1. Further, the oral testimony of PW1 is also supported by the commission report. In the commission report also the commissioner has specifically stated that the present office room of the petitioner is in a dilapidated condition and may collapse at any time. The age of the building is more than 35 years thus, Ext.C1 series of commission report would give a clear picture about the dilapidated condition of the building wherein the office of the petitioner is being functioned at present. RCRev..No. 34 of 2019 8 Thus, we find that the petitioner has succeeded in proving the _bona fides_ of the need. 6. Coming to first proviso, though the respondent had contended that the petitioner has other buildings of their own for the functioning of their office, Exts.A1 to A8 agreement would show that all those buildings are occupied by different tenants and those shop rooms were let out before the commencement of tenancy with the respondent. None of the documents would prove that during the period of filing the rent control petition or thereafter, the petitioner has leased out any premises of their own to any other tenant. Nothing has been brought out to substantiate the contention that the petitioner has another building of their own for the functioning of their office. Thus, we also concur with the findings RCRev..No. 34 of 2019 9 of the court below that the claim for eviction is not barred by first proviso to Section 11(3) of the Act. 7. As regards the second proviso, no evidence has been adduced to substantiate the claim that the respondent is mainly depending on the income derived from the tenanted premises and no other buildings are available in the locality to shift his business from the tenanted premises. In the above view, we find that there is no illegality or impropriety in the findings, whereby the courts below passed an order of eviction under Section 11(3) of the Act. 8. Coming to the order of eviction passed under Section 11(7) of the Act, the courts below have rightly relied on _**Sreenarayana Dharmasabha v. Sathiapalan**_ [2004 (2) KLT 373] wherein this Court has held that an Association, which is functioning for the benefit of a RCRev..No. 34 of 2019 10 class of persons among the public is also a public institution within the meaning in Section 11(7) of the Act. Therefore, there is no illegality or impropriety in the findings, whereby the courts below have granted an order of eviction under Section 11(7) of the Act also. In the above analysis, this revision fails and it is dismissed. At this juncture, the learned counsel for the petitioner sought for one year time to vacate the tenanted premises. 9. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is hereby granted eight months' time from today to vacate the petition schedule building, on the following conditions: - _(1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of_ RCRev..No. 34 of 2019 11 _receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within eight months from today._ - _(2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default._ - _(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent /landlord will be at liberty to proceed with the execution of the eviction order._ ## All pending Interlocutory Applications will stand ## closed. **Sd/-** ## **K.HARILAL, JUDGE** **Sd/-** **N.NAGARESH, JUDGE** AMV/21/01/2019 RCRev..No. 34 of 2019 12