IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 114 of 2008()
1. K.ASCAR ALI, AGED 40 YRS, S/O.UMMERKUTTY
... Petitioner
2. MANU, AGED 67 YRS, W/O.UMMERKUTTY,
3. MASHOOD, S/O.UMMERKUTTY, SAIKRIPA,
4. SUBAIDA, D/O.UMMERKUTTY, SAIKRIPA,
5. SHAHANAVAS, S/O.UMMERKUTTY,SAIKRIA,
6. SAFEERA, S/O.UMMERKUTTY, SAIKRIPA,
Vs
1. V.P.YUSUF,S/O.MAYANKUTTY 58 YEARS,
... Respondent
For Petitioner :SRI.C.VALSALAN
For Respondent :SMT.PRABHA R.MENON
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :19/08/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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R.C.R.Nos.113 & 114 of 2008
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Dated this the 19th day of August, 2008.
O R D E R
Ramachandran Nair, J.
These two revision petitions arise from the common judgment
rendered by the Rent Control Appellate Authority, Vadakara in
R.C.A.Nos.26/2007 and 27/2007. The tenants are the revision petitioners.
Eviction is ordered under Sections 11(2)(b) and 11(3) of the Kerala
Buildings (Lease & Rent Control) Act, 1965 (for short ‘the Act’) by the Rent
Control Court which stands confirmed by the Appellate Authority.
2. Learned counsel for the petitioners contended that the bonafide
need pleaded is not genuine and the approach made by the authorities below
is totally erroneous. It is submitted that the landlord sought eviction of the
rooms in question for starting business for his son Haris who is conducting
a cool bar in one of the rooms in the very same building. The said room is
sufficient for the purpose of conducting the super market which is proposed
to be opened by the son. It is also pointed out that already a room is
available in the second floor which remained vacant and in the absence of
any special reasons pleaded by the landlord, the eviction ordered cannot be
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& 114/2008 -2-
supported. It is further contended that the respective tenants had provided
amounts towards security deposits to the previous landlord and if those
deposits are adjusted, there will not be any arrears of rent also.
3. The short facts leading to the dispute are necessary to be stated to
appreciate the said contentions. The averments in R.C.R.No.114/2008
shows that the tenants obtained the schedule room on lease from the
predecessor-in-interest of the landlord on 18.3.1992. The assignment in
favour of the present landlord is by document dated 4.12.1994 and the
tenants have been paying rent to the respondent herein. The rent was
enhanced from July 2000. The building in question consists of basement
floor, ground floor and two mores stories. One of the sons of the landlord
Shri Haris is occupying room No.18/2A in the ground floor where he is
conducting a cool bar. The schedule room is numbered as 18/2C which is
near to the room in the possession of the son. The room is required for
starting a super market and the room that is already in the possession of the
son is not sufficient for the said purpose. The adjoining room, viz. room
No.18/2B in the possession of other tenants is also required for the purpose
of the business and for which R.C.P.No.35/2004 has been filed. The son
has the facility of a godown in the basement floor for storing the
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commodities of the super market. No other rooms are in the possession of
the landlord or his son.
4. The tenants contended that they had paid a sum of Rs.1,25,000/- to
the predecessor-in-interest for the construction of the room on condition that
it would be returned on vacating the room. The bonafide need pleaded is
not genuine, especially since he is already conducting a cool bar and it was
further contended that the tenants are depending on the income derived
from the optical business they are conducting in the petition schedule
building, for their livelihood.
5. The tenants in R.C.R.No.113/2008 are occupying one of the rooms
in the ground floor where they are conducting the business of repair and sale
of watches. They have advanced an amount of Rs.1,10,000/- for the
purpose of construction of the building.
6. We will now consider the main ground raised by the learned
counsel for the petitioners regarding the genuineness of the bonafide need.
The bonafide need pleaded is to start a super market by one of the sons of
the landlord, namely, Haris. It is clear from the evidence that even though
he is conducting a business in cool bar, that business is not progressing and
therefore he wants to stop the same and to start a super market. He was
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examined as P.W.1 and has stated in detail the requirement of the schedule
buildings to start a super market. One of the points raised by the petitioners
is that his father, the landlord has not been examined. The Appellate
Authority rejected the said contention relying upon the decision of the Apex
Court in Rangubhayi v. Hajayimmal Gokulchand (AIR 1999 SC 3089)
and the decisions of this court in Subaida v. Krishnan (1986 KLT 663) and
Lakshmi v. Labhakunju Ameer Hamsa (2005 (3) KLT 627), taking the
view that it is not the requirement of the law that the landlord must enter the
box to support his case and this is a matter to be proved by cogent evidence
and the court has to objectively assess the same in the light of the pleadings
and the evidence adduced. Therefore, the contention on that aspect cannot
be sustained and we reject it.
7. The other point raised is that there is a vacant room available with
the landlord in the third floor and no special reasons have been pointed out.
Learned counsel for the respondent submitted that the said room is in the
third floor and the same has been set apart for the requirement of his brother
who is proposing to conduct a business in textiles by getting eviction of the
tenanted premises involved in the connected case, viz. R.C.R.No.116/2008
along with this room and the requirement of that room has been specifically
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pleaded in the said case. Apart from that, here P.W.1 is proposing to
conduct a business in super market in the ground floor and therefore it can
be easily presumed that the room in the third floor will not be of any use
for him to conduct a business in the ground floor. P.W.1 has also explained
that a super market can be profitably conducted only in the ground floor
which explanation is a very reasonable and acceptable one. Therefore,
viewed in that manner, it cannot be said that the bonafide need pleaded is
not genuine.
8. As regards the contention that the tenants are depending upon the
income from the business for their livelihood, there was no evidence and
therefore that contention was rejected. As regards the second limb of the
proviso, the landlord had produced Ext.X1 certified copy of the building tax
assessment register of Vadakara Municipality which shows the availability
of vacant rooms in Ward No.18 of the said Municipality in which the
petition schedule building is also situated. No contra evidence has been
adduced by the tenant. Primarily, it is for the tenants to establish by clear
evidence that no suitable rooms are available in the locality and that burden
has also not been discharged. In these circumstances, the tenants were
found not eligible for the benefit of the second proviso to Section 11(3) of
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the Act. We do not see any reason to interfere with the said finding.
9. As far as the ground raised under Section 11(2)(b) of the Act is
concerned, both the authorities have found that the rent is in arrears and the
tenants are entitled to be evicted on that ground also. In fact, learned
counsel for the petitioners contended that if the advance amount paid is
adjusted towards rent, then there will not be any arrears. It was submitted
by the learned counsel for the landlord that the said amount cannot be
adjusted and it will be returned when the tenants vacate the building and the
key is handed over. We find that the argument raised by the learned counsel
for the petitioners on that score is also not correct. In R.C.A. No.26/2007
which is the subject matter of R.C.R.No.114/2008, there is a clear finding
by the Appellate Authority and by the Rent Control Court that the rent
remained in arrears. In R.C.A.No.27/2008 which is the subject matter of
R.C.R.No.113/2008 also, the finding is in favour of the landlord. We have
already held that the argument of the learned counsel for the petitioners
regarding the adjustment of the security amount cannot be accepted.
Therefore, there is no error in the finding that the ground under Section 11
(2)(b) of the Act has been established. We find no merit in the revisions
petitions and the same are dismissed.
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& 114/2008 -7-
10. In regard to the plea that the security amount has to be adjusted,
learned counsel for the landlord fairly submitted that at the time of vacating
the building, the landlord is prepared to pay back the same to the tenants
and we record the same. If there is any arrears of rent remaining to be paid,
the landlord will be entitled to adjust the said arrears from out of the
security amount and return the balance amount to the tenants when they
vacate the building.
In the facts and circumstances of the case, we grant three months time
from today to the petitioners to vacate the premises on condition that they
file an undertaking in the form of an affidavit before the Rent Control Court
undertaking to vacate the premises unconditionally on or before the expiry
of three months from today and also to deposit the arrears of rent, if any,
due within three weeks from today and continue to pay the monthly rent till
the premises are vacated. The affidavit shall be filed within the above said
period of three weeks from today. The petitioners shall continue to pay an
amount equivalent to the rent payable, towards compensation for use
and occupation, till possession is surrendered. If any of the conditions
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aforesaid is violated, then the order of eviction will become enforceable at
once.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/