IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 92 of 2009()
1. K.C.VIJAYAN S/O. VAVACHAN,
... Petitioner
Vs
1. T.J.JOSHY S/O. THENAPARAMBIL JOSEPH,
... Respondent
2. T.J.JAMES @ JIMMY, S/O. THENAPARAMBIL
3. T.J.PATSY,
4. T.J.JOLLY,
5. T.J.JOSSY,
6. T.J.JENSON,
7. T.J.ROY,
For Petitioner :SRI.M.GOPIKRISHNAN NAMBIAR
For Respondent :SRI A BALAGOPALAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :26/05/2009
O R D E R
PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
- - - - - - - - - - - - - - - - - - - - -
R.C.R.No.92 OF 2009
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 26th day of May, 2009
ORDER
Barkath Ali, J.
In this revision filed by the tenant under Section 20 of Act 2 of
1965 arising out of a petition for eviction under Section 11(4)(iii) of
the Act, the only point which arises for consideration is whether the
Rent Control Court and Appellate Authority were justified in
upholding the plea of landlord that the tenant has another building in
his possession which is reasonably sufficient for his requirement and
ordering eviction under Section 11(4)(iii) of the Act.
2. The facts in brief are these. The landlord filed rent control
petition before the Rent Control Court claiming eviction under Section
11(3) and 11(4)(iii) of Act 2 of 1965; that is, the landlord bonafide
requires the petition schedule room for conducting business and that
tenant has alternative building in his possession which is reasonably
sufficient for conducting his business. The Rent Control Court
dismissed the rent control petition holding that the need is not bonafide
and that the tenant is not in possession of any alternative building. In
RCR.No.92/09 2
appeal, the Rent Control Appellate Authority, allowed the appeal and
ordered eviction on both grounds. The tenant challenged the said
judgment in C.R.P.No.2896/2001 before this court. During the
pendency of the revision, the landlord died. His legal heirs were
impleaded. This court allowed the C.R.P. and set aside the order of
eviction on both grounds and remanded the matter to the Rent Control
Court to decide the matter afresh after affording opportunity to the
parties to adduce further evidence in support of their contentions. The
scope of the remand was to consider the bonafide need of the additional
petitioners and the ground under Section 11(4)(iii) of the Act. The
judgment of the appellate authority that the tenant is not entitled to the
benefit of second proviso to Section 11(3) of the Act was confirmed.
After remand, the Rent Control Court disallowed the claim for eviction
under Section 11(3) of the Act and allowed the claim for eviction under
Section 11(4) (iii) of the Act. The appellate authority confirmed the
said order. The tenant has come up in revision challenging the said
judgment and decree.
2. Sri.M.Gopikrishnan Nambiar, learned counsel for the
petitioner, very strenuously argued that the appellate authority is erred
RCR.No.92/09 3
in ordering eviction under Section 11(4)(iii) of the Act. Having
considered the submissions made by the learned counsel and having
gone through the findings concurrently entered by the Rent Control
Court and the Appellate Authority in the context of eviction ordered
under Section 11(4)(iii) of the Act, we are of the view that there is no
warrant for invocation of the revisional jurisdiction under Section 20 of
the Act. The learned counsel for the petitioner would lastly request for
grant of one year’s time to surrender the premises. Notice was given to
Sri.A.Balagopalan, learned counsel who appeared for the respondent
before the Rent Control Appellate Authority. Sri.Balagopalan resisted
the request of the learned counsel for the petitioner and submitted that
one year’s time may not be granted.
3. Under these circumstances, we are of the view that time for
surrendering the premises can be granted upto 31/12/2009 under the
following conditions :
1) The tenant shall file an affidavit before the execution court
undertaking to give peaceful surrender of the premises on or before
31/12/2009. The affidavit shall be filed within one month from today.
2) If such an affidavit is filed, the execution petition to be
RCR.No.92/09 4
filed shall be adjourned to 01/01/2010.
3) The tenant shall discharge the arrears of rent up to
31/12/2009.
The parties shall suffer their respective costs.
PIUS.C.KURIAKOSE
JUDGE
P.Q.BARKATH ALI
JUDGE
sv.
RCR.No.92/09 5