IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev No. 39 of 2007()
1. JOJO, AGED 50, S/O.AUGUSTINE,
... Petitioner
Vs
1. JOSEPH, AGED 72, S/O.VALOORAN PAILEE,
... Respondent
For Petitioner :SRI.P.N.RAMAKRISHNAN NAIR
For Respondent :SRI.S.B.PREMACHANDRA PRABHU
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :25/10/2007
O R D E R
K. BALAKRISHNAN NAIR & T.R. RAMACHANDRAN NAIR,JJ
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R.C.R.No. 39 OF 2007
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Dated this the 25th day of October, 2007.
ORDER
Balakrishnan Nair,J
The tenant is the revision petitioner and the landlord is the
respondent. The R.C.P was filed under Sections 11(2)(b), 11(3) and
11(8) of the Kerala Building (Lease & Rent Control) Act. The Rent
Controller dismissed the application. The landlord appealed. The
appeal was allowed permitting eviction under Sections 11(2)(b) and 11
(3). Though the claim under Section 11(8) was dismissed by the Rent
Controller the said decision was not challenged in the appeal.
2. Since the rate of rent is not disputed, there is no serious
challenge on the finding under Section 11(2)(b) except the contention
that some amount received from the tenant as advance is liable to be
adjusted towards the arrears of rent. This is a point which the revision
petitioner can raise before the Execution Court during the proceedings
under Section 11(2)(c).
3. The main point canvassed before us is regarding the
sustainability of finding under Section 11(3). The brief facts necessary
for the consideration of the said point are the following:-
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The landlord was running a small jewellery shop in a small room
in his residential building which is by the side of the public road. Since
the jewelery business was not profitable, he has stopped it and
presently he is running there a shop selling vessels, utensils etc. of
brass, copper and aluminium etc. Since the present room housing the
business establishment is part of his residential building, he would like
to shift it to the petition schedule building which is part of a line
building owned by him. Altogether, there are 4 rooms in that line
building of which two are occupied by tenants and two are occupied by
his son for doing business. One of the rooms occupied by the tenants
is the petition schedule room. He bona fide requires the said room for
his own occupation. The tenant resisted the said claim stating that the
said requirement is not bona fide. He has been running the business
in the present premises for a long period. So he can continue there.
The claim that he requires additional accommodation for residential
purpose and the rooms available are not sufficient for residential
purpose is made without any basis. He has got ample space for doing
the business in the present building. There are two other rooms
adjacent to the existing room in the possession of the petitioner. If
the petitioner wants to expand his business, the said rooms can be
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used. The tenant also disputes the statement of the landlord
regarding the floor area of the present room in his possession. It is
also stated that by the side of the room in which the landlord’s son is
doing business, there is vacant space. The landlord can use that space
for running business.
4. From the side of the petitioner, PWs 1 and 2 were examined
and Exts. A1 to A4 were marked. From the side of the tenant, he got
himself examined as RW1. Ext. C1 commission report and Ext. C1(a)
sketch were marked. The Rent Controller found that the petitioner is
residing in a very large building. There is sufficient accommodation for
the use of his family members. So the need to shift the existing
business from his residential building is made without bona fides. It is
also found that there is a charthu behind the line building. The said
charthu/room can also be used for running the business. So the claim
of the landlord under Section 11(3) was held to be not bonafide based
on the above said two facts. Both the limbs under the 2nd proviso to
Section 11(3) was found in favour of the landlord by the Rent
Controller also.
5. The appellate authority found that the residential building is a
small building having a total plinth area of 650 sq. feet. So the need
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urged by the landlord to shift his business from the portion of the
residential building is bonafaide and genuine. It was also found that
the charthu/room in possession of the landlord is not suitable for
starting the business. So the claim made by the landlord was found to
be bonafide. The Rent Controller’s finding under the 2nd proviso was
upheld by the appellate authority also.
6. In this case, the learned counsel for the revision petitioner
mainly attacked the finding of the appellate authority that the need of
the landlord is bonafide. The learned counsel for the petitioner pointed
out that the landlord was doing the business for the last 14 years in
the existing premises. Therefore, the claim for a new space is made
without any bonafides. Further, the landlord’s son is occupying two
rooms in the line building and he is engaged in a business similar to
that of the one run by the landlord. Therefore, it is unnecessary for
the landlord to start the very same business in the adjacent room. It
is also canvassed that the landlord was an old person. So, it is
unnecessary for him to shift the business. The finding regarding the
bonafides is, therefore, unsustainable, it is submitted.
7. We find it difficult to accept the above contentions of the
counsel for the revision petitioner. Even if the landlord is an old man
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there is nothing wrong in his claim that he wants to shift the business
to a more convenient place. The fact that his son is engaged in a
similar business is not a bar to the petitioner to do the same business
in an adjacent room. Further the charthu/room found to be vacant is
behind the line building and the same cannot be put to use for
business purpose as the same does not face the adjacent road. The
learned counsel for the petitioner also took us through the relevant
portion of the deposition of the witnesses dealing with the bona fide
requirement. But, we find that the finding of the appellate authority
on this point is supported by materials on record and the reasonings
for the finding are sound. We fully agree with the reasons and
conclusions of the appellate authority. In the result, the attack made
by the revision petitioner against the finding under Section 11(3)
rendered by the appellate authority fails.
The learned counsel for the petitioner prayed for some time to
vacate the premises as he is running a business. Having regard to the
facts of the case, the petitioner is granted six months time from today
to vacate the premises on condition that he files an unconditional
undertaking in the form of an affidavit before the Execution Court
undertaking to vacate the premises within six months from today. He
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shall continue to pay the rent payable from time to time till the room is
vacated. The affidavit in this regard shall be filed within three weeks
from today.
K. BALAKRISHNAN NAIR, JUDGE.
T.R. RAMACHANDRAN NAIR, JUDGE.
rv
R.C.R. No. 39/2007 : 7:
K. BALAKRISHNAN NAIR &
T.R. RAMACHANDRAN NAIR, JJ
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O.P. NO. 21 of 2004
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25th day of October, 2007
JUDGMENT
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