ALUMINIUM GLASS WARE EMPORIUM Vs. UMANATH SHENOY

JUDGEMENT

(1.) The respondents filed R.C.P. No. 114 of 2008 before the Court of the III Additional Munsiff and Rent Control Court, Ernakulam against the revision petitioners under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act'). The Rent Control Court allowed the application under Section 11(3), but rejected the claim under Section 11(4)(iii) of the Act. The petitioners/tenants filed R.C.A. No. 67 of 2010 before the Rent Control Appellate Authority, Ernakulam, challenging the order passed by the Rent Control Court. The Appellate Authority confirmed the finding under Section 11(3) of the Act. The Appellate Authority reversed the finding of the Rent Control Court under Section 11 (4)(iii) of the Act and the prayer for eviction on that ground was also allowed. Challenging the judgment of the Appellate Authority, the tenants have 'filed this Revision. The case of the respondents is that the first petitioner firm is the tenant, of which the second petitioner is a partner. The second respondent is a Homoeo Doctor by profession, working in Mumbai. He has decided to settle at Ernakulam with his family and to start his practice as Homoeo Doctor. For the purpose of setting up his practice, the petition schedule building is required bonafide. It is stated that the respondents have no other building in the city fo satisfy their need. The respondents also raised a contention that the first petitioner firm is not engaged in any business in the petition schedule building. The second 'petitioner has started another business at lyyattu Junction, Ernakulam, under the name and style 'Jalarams'. lyyattu Junction is very near to the petition schedule building.

(2.) The petitioners contended that the bonafide need set up by the respondents is not genuine. The rent originally fixed was Rs. 400/- and it was being enhanced periodically and at present, the petitioners are paying Rs. 3,000/- per month. The respondents had filed R.CP. No. 147 of 1983 and that case was settled and it was withdrawn on the petitioners agreeing to pay enhanced rent. On 29.5.2008, the first respondent issued Ext.B1 notice to the petitioners, demanding enhancement of rent from Rs. 3,000/- to Rs. 7,500/-. In that notice, no bonafide need was set up. The attempt of the respondents is to somehow evict the petitioners and to let out the building for higher rent. The building is not suitable for residential purpose. The business at lyyattu Junction is run by another partnership firm, in which the second petitioner is also a partner. The firm, which is the tenant in respect of the petition schedule building is not the firm which is conducting the business at lyyattu Junction under the name and style 'Jalarams'.

(3.) Before the Rent Control Court, oral evidence and documentary evidence were adduced by both parties. 'The Rent Control Court held that the bonafide need set up by the second respondent to start his practice as Homoeo Doctor and to reside in the petition schedule building is bonafide. This finding was arrived at on an appreciation of the evidence available in the case. The Rent Control Court also noticed that the tenants have no case that the landlord is having another building in the same city. It was also held that the need set up by the respondents is not a ruse for eviction. As regards Ext.B1 letter, the Rent Control Court held that demand for higher rent by the landlord, by itself, would not be a sufficient ground to hold that the bonafide need set up is not genuine. The Rent Control Court also held that the petitioners are not entitled to the benefit of the second proviso to Section 11 of the Act. It was noticed by the Rent Control Court that the petitioners have no case that they are depending for their livelihood mainly on the income derived from any trade or business carried on in the building in question. The ingredients of the second proviso to Section 11(3) of the Act being cumulative, proof of both the ingredients therein is required to claim the benefit of the said second proviso. It was held that the petitioners have to establish both the limbs of the second proviso to Section 11(3) of the Act. That finding under the second proviso to Section 11(3) was also arrived at on the basis of the facts and evidence in the case.