P.A.Varghese vs C.A.Thomas

[Cites 4, Cited by 1]

Kerala High Court

P.A.Varghese vs C.A.Thomas

This Rent Control Revision has been filed challenging an order of eviction passed concurrently under Secs.11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The landlord filed a Rent Control Petition on the ground of Secs.11(3), (11(4)(i) and 11(4)(iii) of the Act. The trial court rejected the claim of eviction under Sec.11(4)(i) and allowed the order of eviction under Secs.11(3) and 11(4)(iii) of the Act. In appeal, the Appellate Court also confirmed the order of eviction under Secs.11(3) and 11(4)(iii) of the Act. Thus, the legality and propriety of the concurrent R.C.R. No.192 of 2017 -: 2 :- findings under Secs.11(3) and 11(4)(iii) of the Act have come up before us in this Rent Control Revision.

2. Heard the learned counsel for the revision petitioners and the learned counsel appearing for the respondent.

3. Going by the impugned judgment, it could be seen that the landlord filed the petition stating that he needs the petition schedule shop room for starting a foot wear manufacturing and sales unit and he has no other vacant building in his possession. So many other buildings are available in the locality to shift the business from the petition schedule building. The tenants resisted the bona fides of the need. The landlord was examined as P.W.1 to prove the bona fides of the need. After evaluating the evidence given by P.W.1, the courts below concurrently found that the need projected is a bona fide one and the tenants have failed to bring out any material to discredit the evidence given by the landlord. We do not find any reason to interfere with the findings of R.C.R. No.192 of 2017 -: 3 :- the courts below on the bona fides of the need.

4. Coming to the first proviso, the tenants have no case that the landlord has another building of his own in his possession. Therefore, the first proviso will not come into application. Coming to the second proviso, the courts below concurrently found that the tenants have miserably failed to discharge the burden of proof under the said proviso. In view of the concurrent findings under the provisos, this Court, in revision, is not inclined to interfere with such findings. Therefore, we confirm the order of eviction under Sec.11(3) of the Act.

5. Coming to the order of eviction under Sec.11 (4)(iii) of the Act, the 1st revision petition/tenant himself, in his evidence, admitted that while he was in possession of the petition schedule building, he has acquired two plots and constructed two shopping complex in those properties and it has come out, in evidence, that those shopping complex are situated within a radius of 1 Km. from the petition schedule R.C.R. No.192 of 2017 -: 4 :- shop room. A Commission was deputed to ascertain whether any vacant rooms are available near the shopping complex at Pulayanvazhy Junction. The Commission, after inspecting the shopping complex at Pulayanvazhy Junction of Alappuzha Municipality reported that four vacant rooms are found closed without occupation by anybody. Thus, this is the case wherein the 1st revision petitioner/tenant himself admitted that he has acquired possession of another building and the Commission reported that vacant shop rooms are still available in that new shopping complex in the possession of the tenant. Thus, the landlord has succeeded in proving that the tenants have acquired possession of other vacant building during the period of tenancy. We do not find any reason to interfere with the concurrent findings of the courts below under Sec.11(4(iii) of the Act also.

6. Thus, this Rent Control Revision is devoid of merits and is dismissed accordingly.

7. At last, the learned counsel for the revision R.C.R. No.192 of 2017 -: 5 :- petitioners sought for some time to surrender the petition schedule shop room. The learned counsel for the respondent opposed the said request. But, this Court is of the view that a reasonable time can be given to the revision petitioners to surrender the petition schedule shop room, on terms. The revision petitioners shall surrender the petition schedule shop rooms within six months from today, provided that they could comply the conditions given below within the specified time:

(i) The respondents/tenants in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within a period of six months from today.

(ii) The respondents/tenants shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a R.C.R. No.192 of 2017 -: 6 :- period of two months from the date of receipt of a copy of this order and shall continue to pay rent without default.

(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically repealed and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order.

Sd/-

(K.HARILAL, JUDGE) Sd/-


                                 (P. SOMARAJAN, JUDGE)


Nan/                  //true copy//




                                    P.S. To Judge

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Kerala High Court