IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 103 of 2010()
1. D.PARA,MESWARAN ACHARI,AJYANIVAS,
... Petitioner
Vs
1. DAMODARAN GOPINATH, SUDNINAMVEEDU,
... Respondent
For Petitioner :SRI.M.K.CHANDRA MOHANDAS
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :05/04/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.R. No.103 of 2010
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Dated this the 6th day of April, 2010
O R D E R
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Abdul Rehim,J.
Respondent in RCOP.No:5/2000 on the files of the
Rent Control Court, Karunagappally is the revision petitioner
herein. The respondent is the petitioner/landlord. Eviction
was sought on the ground of rent arrears as well as bonafide
need for own occupation, as enumerated under Section 11(2)
(b) and 11(3) of the Kerala Building Tax (Lease and Rent
Control) Act, 1975, (the Act for short). The petition was
dismissed by the Rent Control Court denying eviction on both
the grounds. Landlord took up the matter in appeal and the
Appellate Authority found that the tenant is liable to be
evicted on the ground under Section 11(3) of the Act. But
the tenant challenged the decision before this court in
RCR.No:97/2009. During the pendency of the said revision
petition, the tenant had sworn to an affidavit before this
court to the effect that the business conducted by the
landlord was shifted to his residential premises and that the
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need projected in the Rent Control Petition no more survives
for consideration. This court after considering such
contentions remanded the case for fresh disposal by the
Appellate Authority, with specific direction to examine
impact of the subsequent events of shifting of the business of
the landlord to his residential premises and its implications
on the need projected for bonafide own occupation of the
scheduled building. After remand both parties had adduced
additional evidence and after consideration of the entire
evidence on record including the additional evidence, the
Rent Control Appellate Authority found that the need for
bonafide own occupation raised by the landlord is genuine
and therefore ordered eviction under Section 11(3) of the
Act. Since the claim for eviction under Section 11(2)(b) had
attained finality through decision of the Appellate Authority
at the first instance, challenge in this revision is confined
only to the aspect of eviction ordered under Section 11(3).
2. Averments in the Rent Control Petition was to the
effect that, the landlord is conducting a Garments
manufacturing industry under the name and style, ‘Shyam
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Industries’ in a rented temporary shed which is not sufficient
and suitable for running the industrial unit and that the
landlord of the said building (shed) is demanding surrender
of possession. It is further stated that the shed in which the
unit is functioning is situated in a remote area and there is
no facility available for keeping the manufactured garments
for sale. Hence it is contended that the landlord bonafide
requires is requiring the scheduled shop room for the
purpose of shifting the manufacturing unit.
3. The tenant resisted the Rent Control Petition
contending that the industry run by the landlord is being
conducted in a premises which is sufficient and it is situated
in a strong building. It is further contended that there is no
necessity for a shop room since the items manufactured are
sold in wholesale to different textile shops. According to the
tenant, there is no bonafides in the need put forth and the
same is only a ruse to evict the tenant from the scheduled
premises. The Rent Control Court after evaluating evidence
on record found that the need projected by the landlord is
bonafide and genuine. But it is found that the tenant is
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conducting a gold-smithy in the schedule room and the
income derived therefrom is the sole means of his livelihood.
Regarding availability of accommodation in the locality for
shifting the business of the tenant, the Rent Control Court
found that, even if some vacant shop rooms are available the
respondent may not be in a position to take on lease any of
such room for shifting his business and therefore the tenant
is entitled for protection of the second proviso to sub-section
(3) of Section 11 of the Act.
4. In appeal filed by the landlord on a total re-
appraisal of the evidence on record, it is categorically found
by the Appellate Authority that the tenant had totally failed
in proving through any cogent evidence that he is depending
mainly on the income derived from the business carried on in
the schedule premises. It is found that no documentary
evidence to prove the income derived has been produced. It
is further found that the inability to pay higher rent or
premium for occupying any alternate accommodation
available in the locality, cannot be taken as a ground to
negative the claim for bonafide own occupation of the
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landlord. Such a ground cannot be projected as proof of non-
availability of suitable building, as enumerated under the
second limb of the second proviso to Section 11(3), is the
finding.
5. With respect to genuineness of the need projected
there is oral evidence of the landlord examined as PW1. He
was further examined after remand. PWs 2 and 3 were
examined on behalf of the landlord and Exts.A1 to A4 were
marked, after remand. PW4 was also examined before the
Appellate Authority. The evidence on behalf of the tenants
consisted of oral testimonies of RW1 and 2 witnesses
examined before the Rent Control Court as well as RW3 and
4 examined after remand. Two reports of the Advocate
Commissioner (Exts.C1 & C2) one taken after remand are
also available on record.
6. It has come out in evidence that the landlord had
vacated the building (shed) wherein he was conducting the
industry, without a litigation since he wanted to retain good
relationship with its owner. PW1 as well as PW4
categorically stated that there was constant demand from the
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owner to vacate that premises since the owner wanted to
modify the building in order to make it suitable for his
residential purpose. Further it has come out in evidence that
the business is shifted to the residence of the landlord only
with an intention to see that it is continued even at a nominal
rate. The evidence adduced including report of the
commissioner had categorically proved that the business is
being conducted in the residence of the landlord in a highly
congested manner without there being any sufficient space.
Further it is proved that the residence of the tenant is
situated in a highly remote area, whereas the petition
schedule building is in a prominent location having good
accessibility to customers. From the oral as well as
documentary evidence adduced in the case, the Appellate
Authority had arrived at a conclusion that the need projected
is totally genuine and bonafide. Contention of the tenant
that the petition schedule building is not suitable for
accommodating the industry has also been discarded on the
basis of the evidence available.
7. Mr. M.K.Chandramohandas, learned counsel for
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the revision petitioner as well as C.S. Sheeja, learned
counsel appearing for the respondent were heard at length.
Counsel for the revision petitioner could not specifically
point out any material evidence which the Appellate
Authority had omitted to appreciate, or to point out that
there is any misappreciation of the evidence on record. On a
scanning of the impugned judgment of the Appellate
Authority as well as the Judgment of this court rendered
earlier, we are convinced that the landlord was successful in
proving through convincing evidence, especially the evidence
adduced after remand of the matter, that inspite of shifting
of the unit to his residence the need for occupation of the
schedule building still survives and that the subsequent
events has not in any manner eclipsed such a need.
8. Under the above mentioned circumstances we do
not find any illegality, irregularity or impropriety with the
findings arrived by the Appellate Authority. Being the final
fact finding authority we do not think that there is any error
or infirmity with respect to the conclusions arrived on the
facts. Within the contours of attenuated jurisdiction vested
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on this court under Section 20 of the Act we find no reasons
warranting interference to reverse any such findings. Hence
the revision petition deserves no merit.
9. However, as a last submission, Sri.M.K.
Chandramohandas, learned counsel for the revision
petitioner, sought indulgence of this court for granting one
year period for surrendering vacant possession of the
schedule premises. C.S.Sheeja, learned counsel appearing
for the respondent stiffly opposed the prayer. Considering
the facts and circumstances we are inclined to grant time till
31.12.2010. Therefore the rent control revision is disposed
of with the following directions:
(i) While dismissing the revision petition, the revision
petitioner/tenant is granted time till 31.12.2010 to hand over
peaceful and vacant possession of the schedule premises to
the respondent/landlord on condition of his filing an affidavit
before the execution court or the Rent Control Court, as the
case may be, undertaking peaceful surrender of the schedule
premises on or before 31.12.2010 and also undertaking to
make payment of arrears of rent if any, at the rate of Rs.500/-
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as fixed by this court in RCR.No.97/2009. In the affidavit,
the revision petitioner shall further undertake to make
payment of occupational charges till the date of surrender at
the same rate of Rs.500/-. The affidavit as directed above
shall be filed and arrears of rent if any due shall be paid
within 10 days of re-opening of the court after the mid-
summer vacation.
(ii) The execution court shall defer ordering delivery of
possession of the schedule building till 1.1.2011, 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/ksv