IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 58 of 2007()
1. LATHA RAVIKUMAR, W/O. RAVI KUMAR,
... Petitioner
Vs
1. U.N. MANOHARAN, S/O. UNNIAMU,
... Respondent
2. JAMES GEORGE, S/O. K.C.GEORGE,
For Petitioner :SRI.P.T.MOHANKUMAR
For Respondent :SRI.A.BALAGOPALAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :23/06/2008
O R D E R
P.R. RAMAN &
T.R. RAMACHANDRAN NAIR, JJ.
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R.C.R. NO. 58 OF 2007
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DATED THIS, THE 23RD DAY OF JUNE, 2008.
O R D E R
Raman, J.
Revision petitioner is a tenant under the respondents. She is faced
with an order of eviction passed by the Rent Control Court under Section
11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 which was
confirmed in appeal by the appellate authority.
2. It is contended by the learned counsel for the revision petitioner
that the authorities below have committed irregularity in the matter of
ordering eviction of the revision petitioner. It is also contended that the
petition for eviction ought to have been filed under Section 11(8) whereas
it was filed under Section 11(3) of the Act and these are mutually
independent provisions. Reliance is placed on the decisions of this Court
in Pakran v. Kunhiraman Nambiar (2004 (1) KLT 824 and Indian Saree
House v. V. Radhalakshmy (2006 (3) KLT 129) as also the decision of the
apex court in AIR 1999 SC 3223.
RCR 58/2007 :2:
3. Heard both sides. The tenant is in occupation of a room bearing
Door No. 5/3457 E of Calicut Corporation, which belongs to the
respondent/landlords jointly. Entrustment was as per Ext.A1 dated
2.11.2004 for a period of 11 months. The rent originally fixed was Rs.
5,000/- which increased to Rs. 5250/- payable in equal portion to the
respondents/landlords. According to the landlords, PW.2 the son of the first
respondent, who is physically disabled and stopped his studies, is running
a stationery business and STD booth in the room situated on the immediate
west of the petition schedule room. According to them, it is very small and
is a staircase room without sufficient visibility from the road, and is not
sufficient to stock stationary goods and do business in an artful manner.
Hence the schedule room is needed in order to expand the business. The
revision petitioner/tenant contended that it is a licence and not lease and
she denied the need put forward by the landlord.
4. The first respondent gave evidence as PW.1 and his son was
examined as PW.2. Exts. A1 to A7 were marked on the respondents’ side
and Exts.B1 to B2(f) were marked on the revision petitioner’s (tenant) side
5. Exts.A5 and A6 are produced to show that PW.2 is running a STD
Book and stationary business. The revision petitioner/tenant was examined
as RW.1. Ext.B1 is a copy of return for VAT produced by the revision
RCR 58/2007 :3:
petitioner. Ext. B2 series are photographs of the petition schedule premises.
Exts. C1 and C1(a) are the report and rough sketch respectively filed by the
commissioner. The commissioner reported that the western portion of the
petition schedule premises is a mini store and Photostat run by PW.2.
6. The specific allegations made in the rent control petition and
supported by evidence of PWs 1 and 2 is that the building where the
schedule room is situated is jointly owned by the respondents/landlords. It
is also admitted that rent is paid by the tenant separately to the landlords in
equal portion. Respondents/landlords are not related. However, they
acquired the land jointly and constructed the building. PW.2 is the son of
the first petitioner who is in occupation of the portion of the building. He is
a physically handicapped person who stopped his studies at the stage of
PDC and since he wanted to start a business, the staircase room which is
adjacent to the petition schedule room was allotted to him where he started
the stationary business and STD Booth. Licence fee for occupation of half
the right of the property is being paid to the other landlord as proved by
Ext.A7. These evidence had been analyzed properly by both the trial court
as well as the appellate court.
7. Admittedly, the need put forward in the rent control petition is for
expansion of business of PW.2 since the staircase room now in his
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occupation is too small to such a stationary business. The said need for
expansion of business is proved on evidence. The room in occupation of
PW.2 and the schedule room are adjacent and it has been found on evidence
that both the staircase room and schedule room can be used together for the
business. The fact that PW.2 is running a stationary business was not
disputed by RW.1 while examined. Though it is contended that Section 11
(3) has no application, we find that the said contention has no merit. In
order to attract Section 11(8) a portion of the building should be in the
occupation of the landlord and he should seek eviction for expansion of his
business. Here, PW.2 is not the landlord and he is only the son of one of the
landlords. Therefore, the occupation by PW.2 cannot be said to be
occupation by the landlord. Further, the building is owned by two persons
as joint owners. Hence Section 11(8) has no application. The bona fide
need as put forth under Section 11(3) has been proved by cogent evidence
and accepted by both the courts below. The appellate authority noted the
difference between Sections 11(3) and Section 11(8) and found in the
factual situation that it is a case of Section 11(3) and not 11(8). It also
found that the need set up by the landlords is genuine and bona fide,
which finding, in the facts and circumstances of the case, is found to be
correct. The appellate court found that the tenant conceded that she has
RCR 58/2007 :5:
business in cashew nut at Karapparamba; which according to her, is being
done in a room owned by her husband. But no evidence was adduced to
show that the said room belonged to her husband. At any rate, the tenant is
engaged in the business of cashew nut as evidenced by Exts.A4 and B1.
Thus, the tenant has other source of income and further, she has not shown
that the main source of income for her livelihood is the business carrying
on in the petition schedule room. The non availability of suitable building
in the locality is also not proved. According to the tenant, there are rooms
available in the locality but they are not having sufficient road frontage.
The appellate court , after analyzing the evidence on record, found that
there are several rooms available in the locality and therefore, the plea of the
tenant that no other rooms are available in the locality cannot be accepted.
In such circumstances, we do not find any ground to interfere with the
concurrent findings of the courts below.
The revision is accordingly dismissed.
At this stage, learned counsel appearing on behalf of the revision
petitioner/tenant sought a reasonable time to surrender vacant possession of
the petition schedule premises. We have considered this aspect.
Accordingly, we direct that the execution of the order of the court below
will stand deferred for a period of six months on the following conditions:
RCR 58/2007 :6:
(i). The revision petitioner/tenant shall file an
undertaking in the form of an affidavit before the
executing court within three weeks from today agreeing
to surrender vacant possession of the petition schedule
premises on or before the expiry of a period of six
months from today.
(ii). The revision petitioner/tenant shall deposit
the entire arrears of rent, if any, within the aforesaid
period of three weeks and she shall continue to pay an
amount equivalent to the rent payable, towards
compensation for use and occupation till possession is
surrendered.
(iii). The tenant shall not induct any third party in
to possession of the premises.
In case the revision petitioner/tenant commits default of any one of
these conditions the order of eviction shall become enforcible forthwith and
the respondents/landlords will be free to execute the order of eviction.
P.R. RAMAN,
(JUDGE)
T.R. RAMACHANDRAN NAIR,
(JUDGE)
knc/-