IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 55 of 2009()
1. ABILASH, S/O. JOSE,
... Petitioner
Vs
1. A.A. RAJANDHA PAI, S/O. A.R.
... Respondent
For Petitioner :SRI.BASIL MATHEW
For Respondent :SRI.S.B.PREMACHANDRA PRABHU
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :05/01/2010
O R D E R
C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ.
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R.C.REV. NO. 55 of 2009
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Dated this the 5th day of January, 2010
Abdul Rehim,J.
O R D E R
1. The Revision Petition is filed by the tenant against
concurrent findings of eviction ordered under Section 11(3) of
the Kerala Buildings (Lease and Rent Control) Act, 1965
(hereinafter called the Act for short). The Rent Control petition
was filed seeking eviction under Section 11(2)(b), 11(3) and 11
(4)(iii) of the Act. The Rent Control Court ordered eviction both
under Section 11(2)(b) and 11(3). But thereafter the entire rent
arrears was paid and hence the challenge against the order of
eviction under Section 1(2)(b) was not pressed in the appeal.
Therefore the revision petitioner/tenant is assailing the order of
eviction issued under Section 11(3) which is confirmed in appeal.
2. A brief narration of these facts is as follows. The
petition schedule building was occupied by the tenant on
3.3.2004 for a period of 11 months agreeing to pay monthly rent
@ Rs.2000/-. The period of tenancy expired on 2.1.2005.
Landlord is conducting wholesale and retail business of grocery
in another building at Main road, Tripunithura. Due to traffic
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problems there is difficulty to unload goods in front of that shop
and the space available therein is too insufficient. Therefore the
landlord wanted to shift the wholesale business to the petition
schedule building which can be conducted therein in a
convenient manner. He had not accepted rent after January
2005. But, inspite of sending two registered letters requesting
the tenant to surrender the building, the tenant had neither
surrendered the building nor replied. A lawyer notice caused in
this regard was not responded by the tenant. The tenant and his
father have another building in their possession reasonably
sufficient for their requirement. Hence the landlord sought
eviction under Section 11(3)(b), 11(3) and 11(4)(iii) of the Act.
3. The tenant had resisted the petition mainly disputing
the contention that the tenancy was for a period of 11 months.
According to the tenant the tenancy as agreed was for a period
of 5 years. But inspite of repeated requests the landlord had not
executed lease agreement. The premises was taken on lease on
the specific understanding that the tenant will be permitted to do
necessary alterations and renovations for making it suitable for
his requirement. Accordingly the tenant had done a lot of
alterations and improvements, by spending an amount of Rs.3
lakhs. The landlord had postponed execution of lease agreement
with an idea to get eviction of the tenant with an intention to
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lease out the premises to some other persons. It is denied that
the landlord is doing wholesale business at his shop at Main road
Tripunithura. There is only retail business and the premises is
having sufficient space of about 1500 Sq: Ft: Further the 1st and
2nd floors of that building is lying vacant. According to the
tenant sufficient parking space is available in front of that
building. There is no building in the possession of the tenant
and his father, as alleged. The landlord had demanded
exorbitant increase in rent after a period of one year. But the
tenant requested for execution of lease deed, which was not
accepted. It is contended that after receipt of the lawyer notice
there was mediation and landlord had agreed to refrain from
legal action.
4. Evidence in the case contains oral testimony of the
landlord as PW1 and Exts.A1 to A14(a) were marked on his
behalf. From the respondent’s side RW1 and 2 were examined
and Ext.B1 to B7(i) were marked.
5. While considering the issue of eviction under Section
11(3), the trial court found that, inspite of production of certain
documents there is no convincing proof adduced by the tenant in
order to substantiate the contention that he had spent an amount
of Rs.3 lakhs for alteration and renovation of building in
question. With respect to the period of tenancy the Rent Control
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Court found that in Ext.A1 letter issued by the tenant it is
acknowledged that he had occupied the petition schedule
building for a period of 11 months. Further inspite of the
specific recitals in Exts.A5 and A6 letters, issued by the landlord,
to the effect that the period of 11 months have lapsed and the
tenant is liable to be vacated, there was no reply from the side of
the tenant refuting such an allegation. It is also found that there
was no response from the side of the tenant with respect to the
demand raised through Ext.A8 lawyer notice. While considering
genuineness and bonafides of the need projected, the trial court
found that, PW1 when examined had categorically explained
about his needs. The father of the tenant who was examined as
RW2 admitted that the landlord is one among the leading
grocery dealer in Tripunithura. The Rent Control Court found
that from the photographs produced by the landlord, which
eventhough is not properly proved, there is evidence to the
effect that heavy traffic congestion is there in front of the
premises wherein the landlord is doing business. The trial court
also found that the 1st and 2nd floors of the building wherein the
landlord is conducting business, does not belong to him, and that
he is not in possession of those rooms. Having found the need
urged by the landlord as genuine, the trial court looked into the
aspect of 2nd proviso to Section 11(3). It is found that the tenant
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has not raised any case under the 2nd proviso nor had adduced
any evidence to prove that the business in question is the only
source of livelihood. Further he had failed to prove the
ingredients regarding non-availability of any suitable building in
the locality. Hence the Rent Control Court found that the
bonafide need projected by the landlord is genuine and that
eviction is liable to be ordered under the ground in Section 11
(3). Since the landlord was not successful in proving availability
of another building in the possession of the tenant, the ground
urged under Section 11(4)(iii) was not allowed.
6. In appeal filed by tenant the Rent Control Appellate
Authority had confirmed the order of eviction under Section 11
(3). After analyzing evidence on record, the appellate authority
found that the premises wherein the landlord is now conducting
business is situated in an area where there is heavy traffic and
the road therein is used only as one-way, and there is non-
availability of sufficient parking space. It is further found that
the need urged for starting wholesale business at the schedule
premises is genuine, since the schedule premises is suitable for
conducting wholesale business in grocery. Further it is found
that as per settled legal position it is the privilege of landlord to
choose the nature of business to be conducted at the premises
and the tenant is not entitled to dictate terms regarding the
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manner in which business has to be conducted. It is found that
the tenant had failed in proving possession of any other suitable
building by the landlord. Further it is found that, the evidence of
RW2, who is the father of the tenant is to the effect that, he is
running a business in the main road and the tenant is running a
parallel college in the upstair portion of that building. Therefore
it could not be found that the tenant is depending solely on the
income derived from the business conducted in the schedule
building, and therefore he is not entitled to protection under the
2nd proviso of Section 11(3). From the evidence on record the
appellate authority found that the contention regarding spending
of Rs.3 lakhs for alterations and renovations is not proved and on
the other hand from Ext.A1 it is evident that the tenant had paid
only an amount of Rs.1,25,000/- as advance. Therefore on an
overall appreciation of evidence, the appellate authority has
confirmed the order of eviction under Section 11(3).
7. Heard the learned counsel for the revision petitioner
as well as counsel appearing for the respondent. It is
vehemently contended by the revision petitioner that the period
of lease was for 5 years and only on that specific understanding
he had spent the amount of Rs.3 lakhs for renovations, alteration
and improvement of the building. On that basis the tenant is not
liable to be evicted before expiry of 5 years. But we do not find
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any misappreciation of evidence either by the trial court or by
the appellate authority in this regard. As stated above, inspite of
contention raised regarding expenditure of an amount of Rs.3
lakhs, the tenant could not prove the same through any
convincing evidence or he could prove that there was any
understanding between the parties that the tenancy is for a
period of 5 years. On the other hand, evidence on record
revealed that there is direct and indirect admissions on the part
of tenant that the tenancy was only for a period of 11 months.
We do not find any specific reason to interfere with the findings
on fact in this regard, sitting in the attenuated jurisdiction of
revisional power under Section 20 of the Act. Eventhough a
feeble attempt was made from the side of the revision petitioner
to dispute genuineness of the need projected, he is not in a
position to bring to the notice of this Court about any convincing
evidence adduced to shake credibility of the evidence adduced
on behalf of the landlord in this regard. Contention raised with
respect to 2nd proviso of Section 11(3), we are unable to find any
convincing reasons for interfering with the findings of the courts
below. Therefore the revision petition does not deserve merit
and is liable to be dismissed.
8. However as a last resort, the learned counsel for the
revision petitioner sought indulgence of this Court for granting 9
RCR.55/09-D 8
months time for him to vacate the tenanted premises, which
request was vehemently opposed by the counsel appearing on
behalf of the respondent landlord. On considering the entire
facts and circumstances of the case we are inclined to grant time
upto 31st of March 2010, on condition of the revision
petitioner/tenant executing an affidavit before the execution
court undertaking to handover peaceful and vacant possession of
the tenanted premises to the landlord, before 31.3.2010 and also
pays arrears of rent if any due and further continues to pay the
rent falling due till such time. The affidavit as above need be
filed within 3 weeks from today. If the executing court take note
of such an affidavit and is being convinced of payment of rent if
any in arrears, the eviction of the revision petitioner from the
tenanted premises shall be deferred till 1.4.2010.
The Rent Control Revision is disposed of as above.
C.N.RAMACHANDRAN NAIR, JUDGE.
C.K.ABDUL REHIM, JUDGE.
okb