IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev No. 471 of 2005()
1. KERALA STATE HANDLOOM WEAVERS'
... Petitioner
2. KERALA STATE HANDLOOM WEAVER'S
Vs
1. P.L. LUCKOSE, S/O. LUCKOSE,
... Respondent
For Petitioner :SRI.M.K.CHANDRA MOHANDAS
For Respondent :SRI.S.VENKATASUBRAMONIA IYER(SR.)
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :16/01/2007
O R D E R
K.A.ABDUL GAFOOR &
K.R. UDAYABHANU, JJ.
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R.C.R. NO. 471 OF 2005
============================
DATED THIS THE 16TH DYA OF JANUARY 2007
O R D E R
Udayabhanu,J.
The revision petitioner is the tenant under orders
of eviction as per the order of the appellate authority
on the application filed under Section 11(3) of the
Kerala Buildings (lease & Rent Control) Act,1965,[Act 2
of 1965] {for short ‘the Act’} and reversing the order of
the Rent Control Court. The case set up by the landlord
in the R.C.P. is that he wanted to re-start the business
that he was conducting earlier in vessels. He was
earlier running an outlet by name Pullukalayil metal
stores in a room adjacent to the petition schedule
premises. The above room was owned by his younger
brother. Subsequently his sister-in-law, who owned the
R.C.R.NO.471/2005 -2-
above shop room subsequent to the death of his
younger brother, initiated proceedings against him vide
R.C.P.No. 2/2002 and he vacated the premises as per
compromise petition filed on 7-3-2003. He is not in
possession of any other vacant building.
2. The contention of the revision
petitioner/tenant is that the surrender of possession of
the premises in which the landlord was conducting
business is the result of collusion and that earlier he
had filed R.C.P.No.2/1997 against the another tenant
and after contest, obtained vacant possession of the
shop room from the above tenant in October 2001.
But he did not occupy the same and rented it out on
higher rent and hence there is no bona fides at all in
the need set up. The landlord has also filed
R.C.P.No.7/2001 against the present revision
petitioner/tenant, but the same was withdrawn on
understanding that the rent will be enhanced to
Rs.600/- on 23-7–2002.
3. The appellate authority got convinced from
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the explanation of the landlord that R.C.P.No.7/2001
filed against the present revision petitioner was not
pressed as his son for whose purposes the eviction
was sought obtained employment abroad and also
at the time the petitioner/landlord was conducting
business in the premises owned by his sister-in-law.
The contention stressed by the revision petitioner
herein is with respect to the premises that got evicted
vide the proceedings in R.C.P.No.2/1997. It is not
disputed that the matter was compromised and that
the landlord got vacant possession in September 2001.
It was pointed out that the landlord/petitioner had
concealed the above fact that he has got vacant
possession of another premises after instituting the
proceedings and thereafter he entrusted the premises
to another person without occupying the same by
himself. It is pointed out that earlier in
R.C.P.No.2/1997, he had sought for eviction on the
ground that he wanted to shift his business from that
shop. The contention is that the landlord/petitioner
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should have placed all these facts in the R.C.R. filed
and the very fact that he has not mentioned the details
indicated that the need set up is not bona fide.
4. Counsel for the respondent/landlord herein has
pointed out that the present contention was not raised
before the courts below. It is raised only before this
Court. The revision petitioner has filed an affidavit
and produced the judgment in R.C.P.No.2/1997 as well
as the copy of the order in R.C.A.No.16/2000 and the
copy of the compromise petition in the above
proceedings. The landlord has filed a counter
statement wherein he has explained the reason for the
non-occupation of the premises covered by
R.C.P.No.2/1997. It is mentioned that at the time
there was a dispute between himself and the sister-
in-law Smt.Alice Thomas with respect to the family
settlement as the premises that he was occupying
and conducting business was allotted to his sister-in-
law. According to him, the premises in question was
purchased by himself and he has paid certain
R.C.R.NO.471/2005 -5-
amounts to his sister-in-law. But subsequently there
arose some dispute with respect to the sale
consideration. He was under the strong conviction
that he is entitled to the above premises and would not
be liable to vacate the same. It was at the time the
present tenant of the above room one Muhammed
Shafi approached him for the premises obtained as
per court orders in proceedings of R.C.P.No.2/1997.
But subsequently his sister-in-law initiated proceedings
against him vide R.C.P.No.2/2002. The matter was
compromised due to the interventions of the other
family members and he was persuaded to vacate the
premises wherein he was conducting Pullukalayil
metal stores and the premises was vacated. Therein
his sister-in-law is conducting the business under the
name and style City Centre dealing with sale of clothes
and other textiles. It is also pointed out that CPW1
herein in the present proceedings who is the Manager
of the revision petitioner,Society was PW3 in
R.C.P.No.2/1997. It is also pertinent to note that in
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the counter statement filed by the revision
petitioner/respondent in the R.C.P. no contention has
been raised with respect to the alleged deliberate non-
occupation of the premises got evicted as per the
proceedings in R.C.P.No.2/1997 and the allegation that
it was given on higher rate of rent. It is also seen
from the cross examination of PW1 that the revision
petitioner/respondent has not questioned PW1 on this
aspect in detail at all. Only the statement of PW1 in
the cross examination is that the above room has not
been occupied by the landlord himself.
5. In the circumstances, we find that the
landlord/petitioner cannot be faulted for non-
disclosure of the details which were within the full
knowledge of the Manager of the counter petitioner.
Evidently in the instant case, there is no basis for the
allegation of concealment as CPW1 was fully aware of
the details of earlier litigations as he had testified in
favour of the landlord in R.C.P.No.2/1997.
R.C.R.NO.471/2005 -7-
6. It is also evident from the proceedings that the
petitioner/landlord was a person who was conducting
the same type of business for a number of years
earlier. Hence, there can be no dispute as to his
experience in the field. There is no dispute about his
financial ability to invest in the business. It is also
evident that he has no other business right now. In
the circumstances, we find no reason at all to interfere
in the findings of the Rent Control Appellate Authority.
7. Counsel for the revision petitioner/tenant has
sought for time for one year to vacate the premises
which was strongly opposed by the counsel for the
respondent/landlord. In the circumstances and
considering the fact that the revision petitioner/tenant
is a society, we are inclined to grant six months time
from today onwards to vacate the premises on
condition that the revision petitioner/tenant shall pay
the entire arrears of rent, if any, and also to continue
to pay the rent due in future and also file an affidavit
before the execution court undertaking that the
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revision petitioner shall vacate the premises on or
before 16-7-2007. The Rent control revision is
disposed of accordingly.
Sd/-
K.A.ABDUL GAFOOR
JUDGE
Sd/-
K.R.UDAYABHANU,
JUDGE
ks. TRUE COPY
P.S.TO JUDGE