IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 59 of 2011()
1. SAHADEVAN,SON OF CHAMI,
... Petitioner
Vs
1. RAHNA SULTHAN, D/O.LATE KITHAT MUHAMMED,
... Respondent
2. SHERINA, W/O.LATE KITHAR MUHAMMED,
3. FATHIMA TASLIM,D/O.LATE KITHAR MUHAMMED,
4. SHAHUL HAMEED,S/O. LATE KITHAR MUHAMMED,
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :SRI.RAJESH SIVARAMANKUTTY
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :02/02/2011
O R D E R
PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.
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RCR. No. 59 of 2011
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Dated this the 2nd day of February, 2011
O R D E R
Balakrishnan, J.
The tenant who has suffered order of eviction under
Section 11(3) and 11(4)(iii) is the revision petitioner. The
need projected by the landlady is that the petition schedule
building is bona fide required for accommodating her
daughter for starting a business therein. It is contended by
the landlady that the tenant has put up a new building very
near to the petition schedule building by name ‘Century
Plaza’ and he is actually conducting business in a room
situated in that building.
2. The claim was resisted by the tenant contending that
the need alleged is not bona fide. The ground under Section
11(4)(iii) was also resisted by the tenant contending that he
is not in possession of any other building as alleged by the
landlady.
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3. The learned Rent Controller considering the oral and
documentary evidence ordered eviction on both the
grounds. The Appellate Authority concurred with the
eviction order passed by the Rent Controller.
4. Sri.D.Krishna Prasad, learned counsel appearing for
the tenant submits that when the case was originally listed
for trial the landlord sought adjournment and that was
allowed by the trial court and thereafter the landlady and
one witness were examined and the case was posted for
evidence of the tenant. On that day, the tenant could not
be present in court as he had to take his daughter, who was
in an advanced stage of pregnancy, to a hospital at
Coimbatore and thus sought time for giving evidence on his
behalf. The court granted two days time. Though the
tenant was under the belief that he can come back within
two days, he could not return because his daughter had to
be admitted in the hospital and so no evidence could be
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adduced on his side. Thus, according to the learned counsel,
it was almost an ex parte order that was passed by the Rent
Control Court. The learned counsel further submits that
though these grounds were canvassed in appeal, those
grounds were not accepted by the Appellate Authority. Thus
the learned counsel submits that the finding entered by the
two courts are erroneous and unsound and as such it
requires reconsideration.
5. The learned counsel for the landlady would
vehemently argue that here is a tenant who is actually in
the place of a big landlord having another new building of
his own by name Century Plaza. It is contended that the
building by name Century Plaza is situated very near to the
petition schedule building and that the tenant is actually
conducting business in one of the rooms situated in that
building. The learned counsel further submitted that the
tenant is having buildings at two other places also and there
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also he is conducting business. The learned counsel Sri.D.
Krishna Prasad submits that there is no evidence to show
that those buildings belong to the tenant. But on going
through the evidence it could be seen that the fact that the
tenant is having other buildings was not seriously objected
to. The Advocate Commissioner in Ext.C-1 report has given
details regarding the other buildings held and possessed by
the tenant.
6. Though it was vehemently argued by the learned
counsel for the tenant that the tenant could not give
evidence before the Rent Control Court as his daughter was
hospitalised no document was produced either before the
Rent Control Court or before the Appellate Authority to
canvass for the position that there was justifiable reason for
his absence and inability to adduce evidence before the trial
court. In the absence of any such evidence it is too late in
the day for the tenant to contend that he was actually
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prevented from giving evidence before the Rent Control
Court.
7. The learned counsel for the tenant has also argued
that PW-2, for whose need the building is sought to be
evicted is actually abroad with her husband and that she
does not actually intend to come back for starting a
business and that the need projected is only a pretext for
eviction. The daughter of the landlady (PW-2) has however
chosen to mount the box to give evidence regarding the
need that she actually intends to start business as stated in
the petition. The evidence so given by PW-2 was accepted
by the two authorities below. Therefore, we are not inclined
to upset that finding. In view of what is stated above, the
orders of eviction passed by the Rent Control Court under
Section 11(3) and 11(4)(iii) confirmed by the Appellate
Authority cannot be upset by this court sitting in revision.
There is no illegality, irregularity or impropriety in the
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orders passed by the two statutory authorities.
The result is that this revision petition is dismissed.
The learned counsel for the revision petitioner submits
that the tenant may be granted one year time to vacate the
premises. The request is opposed by the learned counsel
for the landlord. We notice that the rent now being paid by
the tenant is only Rs.300/- per month. However, we feel
that the tenant can be granted time till 31-12-2011 for
surrendering the premises subject to the following
conditions:
The revision petitioner shall file an affidavit before the
Execution Court or the Rent Control Court as the case may
be, within three weeks from today undertaking to put the
landlord back in possession of the petition schedule
premises on or before 31-12-2011 and undertaking further
through the same affidavit that the entire arrears of rent
due as on date will be paid within one month from today
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and occupation charges at the rate of Rs.2500/- per month
with effect from 1-2-2011 without fail on the 1st of every
month till actual surrender is made. We clarify that the
revision petitioner tenant will get the benefit of time allowed
as above only if the affidavit as directed above is filed and
the undertakings therein are complied with.
(PIUS C.KURIAKOSE, JUDGE)
(N.K. BALAKRISHNAN, JUDGE)
ksv/-