IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 42 of 2009()
1. M.M.SALIM, S/O.M.M.HANEEFA,
... Petitioner
Vs
1. PRADEEP NAIK,
... Respondent
For Petitioner :SRI.ALEX N.MATHEW (KOLLAM)
For Respondent :SRI.V.V.RAJA
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :23/02/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.R. No.42 of 2009
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Dated this the 23rd day of February, 2010
O R D E R
—————
Abdul Rehim,J.
The respondent in RC(OP) 40/2000 on the files of
the Rent Control Court, Kollam is the revision petitioner.
The respondent/landlord filed petition seeking eviction on
the ground of bonafide need, under Section 11(3) of the
Kerala Building (Lease and Rent Control) Act, 1965 (for short
the Act). According to the landlord the petition schedule
building, which forms part of a row of shops, is situated on
the southern side of a property having 70 cents in extent
which contains his residential building. Since there is no
motorable access to the said property and to the residential
building, the landlord wanted to demolish the petition
schedule shop room and also another shop room situated on
its western side to create vehicular pathway to the property
and to the residential building situated on its back. Hence
eviction was sought for under S.11(3).
2. Evidence before the Rent Control Court consisted
of oral testimony of landlord examined as PW1 and Ext.A1 to
A3 documents marked on his behalf. The revision
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petitioner/tenant was examined as DW1. DW2 is the
accommodation controller examined as a witness on his
behalf. Ext.C1 commission report and C2 mahazar was also
marked in evidence. The Rent Control Court after elaborate
consideration of the evidence on record found that the
landlord was not successful in proving that the need projected
is genuine and bonafide. Therefore the petition was
dismissed. In appeal before the Appellate Authority (the
District Court, Kollam) the evidence was totally re-appraised.
The Appellate Authority found that the need put forth by the
landlord to have a spacious opening to the property and to the
residential building for access of vehicles, is genuine and
bonafide. In reversal of findings of the Rent Control Court, the
Appellate Authority found that the tenant is liable to be
evicted for the need projected by the landlord.
3. In this revision petition the tenant contended that,
the Rent Control Court having found the need as not bonafide
has not adverted to the aspects of protection provided under
the second proviso to S.11(3). Sri. H. Ramanan, learned
counsel for the revision petitioner, argued before us that there
was specific contention raised by the tenant before the Rent
Control Court that the business conducted in the petition
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schedule room is the main source of livelihood of the tenant
and his family and that there are no other suitable buildings
available in the locality for shifting of the business. But the
Rent Control Court having found that the need projected is not
genuine and bonafide has not considered the point as to
whether the tenant is eligible for protection under the second
proviso. But the Appellate Authority with due advertence to
the evidence adduced on this aspect, had arrived at a
conclusion that the tenant was not successful in proving both
limbs under the second proviso to S.11(3). It is observed that
not even a scrap of paper was produced to prove the income
actually earned by the tenant from the business carried on in
the premises. Inspite of the fact there is evidence to the effect
that the business was having Sales Tax Registration, the
tenant had failed to produce any Books of Accounts to show
that the income derived from the business is the main source
of his livelihood. Coming to the second limb of the second
proviso, the Appellate Authority found that DW2, the
Accommodation Controller when cross-examined has admitted
that vacancies are only rarely reported to that authority.
Therefore the Appellate Authority found that the tenant was
not at all successful in proving both the limbs of the second
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proviso.
4. Sri. H. Ramanan, learned counsel for the petitioner,
contended that since the Rent Control Court has not
considered the aspect of second proviso the tenant was
prevented from adducing proper evidence on that particular
aspect. We notice that, it was the burden of the tenant to
adduce evidence in proving claim seeking protection under the
second proviso to S.11(3), as held by this court in a Full Bench
decision reported in Francis v. Sreedevi Varassiar (2003
(2) KLT 230 (F.B). Eventhough the Rent Control Court has
not considered the evidence adduced on the aspect of the
second proviso, we are not persuaded to accept that the non
consideration had in any manner caused prejudice to the
petitioner. In the matter of adducing evidence on the aspect
of the second proviso, it could not be contended that there was
any denial of opportunity. The Appellate Authority, being the
final fact finding authority, had elaborately considered the
evidence on this aspect and found that the tenant is not
entitled for protection provided under the second proviso to
Section 11(3).
5. Sri.H. Ramanan raised further contention before us
that, the Rent Control Petition filed by the landlord against the
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neighbouring tenant was also dismissed and that the matter is
now pending in appeal. Contention is that unless the landlord
get eviction of the building belonging to that tenant, the need
projected could not be accomplished. But we are of the
opinion that merit of this Rent Control Petition filed against
the tenant has to be decided on the basis of evidence adduced
in this case. The other Rent Control Petition was not jointly
tried or disposed of by any common judgment. Therefore we
are not persuaded to accept the contention that outcome of
that Rent Control Petition filed against the neighbouring
tenant, should have a bearing in the decision of this case. On
the other hand, Sri.Raja Vijayaraghavan, learned counsel for
the respondent submitted that the Rent Control Appeal filed
with respect to the other tenant is pending disposal before the
District Court, Kollam. We notice that if the need urged for
evicting the tenant under Section 11(3) could not be
accomplished within the stipulated time, the tenant is at
liberty to invoke remedy available under Section 11(12).
Therefore the contention in this regard is not a ground to
interfere with the findings arrived by the Appellate Authority.
6. Under the above mentioned circumstances we find
no infirmity, illegality, irregularity or impropriety with the
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findings rendered by the Appellate Authority which is the final
fact finding authority. In the attenuated revisional jurisdiction
under Section 20 of the Act, we do not find any merit which
warrants interference for reversal of the impugned findings.
Accordingly the revision petition is liable to be dismissed.
7. However, Sri.H. Ramanan, learned counsel for the
revision petitioner, sought indulgence of this court in granting
one year period for surrendering vacant possession of the
tenanted premises, on the ground that the tenant has to find
out alternate accommodation for shifting the business
conducted in the schedule premises. Sri. Raja Vijayaraghavan,
learned counsel appearing on behalf of the
respondent/landlord strongly opposes such plea. Having
considered facts and circumstances of the case we are of the
opinion that the tenant can be permitted to grant time for a
period of one year to vacate the schedule premises, subject to
certain conditions.
8. In the result the Rent Control Petition is disposed of
with the following directions:
(i). While dismissing the Rent Control Revision we grant
time for the revision petitioner/tenant to hand over vacant
possession of the scheduled building to the
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respondent/landlord, till 28.2.2011, subject to the condition
that the revision petitioner shall file an affidavit before the
execution court or the Rent Control Court, as the case may be,
within a period of three weeks from today, undertaking that he
will hand over vacant possession of the schedule premises to
the landlord on or before 28.2.2011 and also undertaking that
arrears of rent if any due will be paid within a period of one
month from today. In the affidavit the tenant will also
undertake to pay occupational charges at the prevailing rate of
monthly rent periodically, till surrender of possession of the
scheduled building.
(ii). The execution court is directed to adjourn delivery
of the scheduled building till 1.3.2011, once filing of the
affidavit and payment of arrears of rent and occupational
charges as directed above is noticed.
PIUS C.KURIAKOSE, JUDGE.
C.K.ABDUL REHIM, JUDGE.
okb
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