K.KANARAN Vs. ALAKKADAN SOBHA

JUDGEMENT

(1.) Tenants/respondents in R.C.P.No.48/2003 on the file of the Rent Control Court, Thalassery are the revision petitioners herein. Respondent herein filed R.C.P.No.48/2003 for eviction on the ground of arrears of rent and bonafide need and sub lease under Section 11(2) (b), 11(3) and 11(4)(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act'. It is alleged in the petition that the petition schedule building was let out to first respondent on a monthly rent of 80/ -, as he was doing beedi work and 2nd respondent His younger brother is working along with the first respondent and recently he got information that, he had abandoned the business and sublet the building to the 2nd respondent. The rent was kept in arrears from August 2002 and the petitioner requires the petition schedule building for the purpose of conducting a garment business. Though a notice was issued to pay the arrears of rent and vacate the sublease, that was not done. The other tenants have expressed their willingness to surrender the building. So he filed the petition to evict the respondents from the petition schedule building on the ground of arrears of rent, bonafide need and sublease.

(2.) Respondents entered appearance and filed counter denying the allegation of bonafide need and the arrears of rent and sub lease. According to them, the buillding was taken on rent from the father of the petitioner by the 2nd respondent 24 years ago, agreeing to pay a rent of 80/ - per month. The first respondent was residing at Thalapuzha with his family in his own property since 13 years back and he is not doing any business in the petition schedule building. The petitioner is now in possession of another room in the ground floor and other tenants never expressed their readiness to vacate the premises as contented by the petitioner. The allegation that the petition schedule building was sublet to the second respondent is not correct. One of the rooms in the possession of the Poozhiyil Balan, was surrendered to the petitioner. Now another person was conducting Ayuredic business in that room. He is none other than the direct nephew of Poozhyil Krishnan and it was let out to a third party. So the need alleged is not bonafide. So they prayed for dismissal of the application.

(3.) After considering the evidence on record, earlier the court below rejected the application for eviction on the ground of arrears of rent and sub lease, but found the bonafidie need as genuine, rejected the prayer for eviction on the ground of bar under first proviso to Section 11(3) of the Act. Aggrieved by the same, the landlord filed R.C.A.No.134/2004 wrongly stated as R.C.A.No.134/2009 in the appellate court judgment and also filed I.A.No.1352/2007 for amendment incorporating a new paragraph stating that now the upstair portion is in the possession of the tenant/respondent and she wants the down stair building for her purpose of starting business in readmade garments and used the upstair portion for tailoring work and stocking the materials. One of the tenant in the down stairs surrendered and others have expressed their willingness to surrender. She can start the business only after getting vacant possession of all rooms. Except the respondent/tanant others have expressed their willingness to surrender the building when ever required by the landlord. The rent control appellate authority allowed the application for amendment on cost and remanded the case for fresh disposal as per the judgment dated 12.03.2008, confirming the rejection of claim for eviction under Section 11(2) and 11(4)(i) of the Act, but remanded only for the purpose of considering the question of eviction under Section 11(3) of the Act alone. Thereafter the tenant filed additional counter denying the allegation that the landlord requires the entire building for her purpose. After remand PW1 was again examined and PW2 another witness was also examined. No further evidence was adduced on the side of the respondents. After considering the evidence on record, the rent control court found that the need alleged is bonafide and the tenant is not entitled to get the second proviso of protection. The landlord was not in possession of any suitable building for the purpose and allowed the application under Section 11(3) of the Act. Aggrieved by the same the revision petitioners filed R.C.A.No.90/2009 before the rent control appellate authority, Thalassery, which was made over to Second Additional District Court, Thalassery for disposal. In this appeal also the tenant filed I.A.No.571/2013 to recourse the document obtained from the Special Grade Secretary, Dharmadam Grama Panchayat to show that the landlord had let out the building which she obtained during the pendency of the proceedings to others. The appellate court found that, accepting the submissions made by the counsel for the landlady that the building was for the time being given to the relative on temporarily arrangement and he had agreed to surrender the building after getting this building also, and only after getting this building she can do the intended business in the premises and court below dismissed the appeal confirming the order of eviction passed by the rent control court under Section 11 (3) of the Act. Aggrieved by the same, the present revision has been filed by the revision petitioner/respondents in the court below.