VENUGOPALAN NAIR Vs. MOHAMEDKUNHI

JUDGEMENT

(1.) The parties are referred to herein as the landlord and the tenant. R.C.R. No. 79/07 is filed by the tenant. R.C.R. No. 195/07 is filed by the landlord. The revision petitioners/tenants are aggrieved by the judgment in the Rent Control Appeals. Since the landlord's case for eviction in the context, of the ground under Section 11(2)(b) was declined by the authorities below concurrently on the ground under Section 11(2)(b) and since we do not find any illegality, irregularity or impropriety with the decision of the authorities below in the context of the ground under Section 11(2)(b) we do not propose to refer to the rival contentions in the context of that ground. We confirm the order of authorities below declining eviction under Section 11(2)(b). We however observe that the cause of action for eviction on the ground of arrears of rent is a recurring one and it is always open to the landlord to seek eviction on the ground of arrears of rent once it is seen the tenant has defaulted payment of rent.

(2.) The case of the landlord in the context of the substantial question under 3tion 11(3) was that 1st petitioner in the Rent Control Petition was without any job or avocation and he needs the petition schedule building which is in the first floor of a larger building belonging to the landlord for conducting business in plastic and stationery. The tenant is a Homeopath and is conducting a pharmacy in the petition schedule building. His contention was that the landlords are having vacant possession of other vacant rooms in the ground floor of the building and that the room in the ground floor of the building will be more ideal for conducting the proposed business even if the need is genuine. It was also contended that the Rent Control Petition is liable to be rejected in view of the 1st proviso to Section 11(3). It was also contended that the tenant is entitled to protection under the second proviso to Section 11(3). The Rent Control Court evaluated, the evidence which consisted of Ext. A1 to A4, PW1 and RW1 and came to the conclusion that the need was not bona fide. According to the Rent Control Court a room in the ground floor of the building will be more suitable for conducting of the business proposed by the 1st petitioner in the Rent Control Petition than the petition schedule building in the first floor. The learned Rent Control Court would infer and conclude that the action of the landlord in not seeking eviction of a room in the ground floor is indicative of absence of bona fides. That court however, held following the judgment of the Full Bench reported in Francis v. Sreedevi Varassiar, 2003 2 KerLT 230 that the tenant was unsuccessful in establishing his entitlement for the protection of the 2nd proviso to Section 11(3). However, in view of the finding that the need is not bona fide order of eviction was declined under Section 11(3).

(3.) The Rent Control Appellate Authority keeping in mind the judgment of the Full Bench referred to above concurred with the Rent Control Court's view that the tenant is not entitled to protection of second proviso to Section 11(3). That authority however held that it is for the landlord to decide where he should conduct his business. According to that authority, since there is no vacant room in the ground floor, the landlord has the prerogative to pick and choose one from among his various tenants and even the authorities under Rent Control Court were not empowered to sit in judgment over the wisdom exercised by the landlord under the rule of pick and choose. Accordingly interfering with the order of Rent Control Court the Appellate Authority would allow the Rent Control Petition on the ground of bona fide need for own occupation.