IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V. & K. HARILAL, JJ.
N.L. JOSE S/O NELLISSERY LONAPPAN – Petitioner
Versus
FAISAL RAJ S/O PUTHANVEETIL ABDUL HAMEED – Respondent
R.C. Rev. No. 31 of 2016
Decided On : 03-03-2017
1. Revision petitioner is the tenant. He challenges the judgment of the Rent Control Appellate Authority, Thrissur in R.C.A. No. 5 of 2008 upholding the order passed by the Rent Control Court, Thrissur in R.C.P. No. 84 of 2005. By the said order, the petitioner suffered an order of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as "the Act" for short).
2. The landlords, who are son and wife of late Puthenveetil Abdul Hameed are the owners of the petition schedule shop room. The said shop room is having a plinth area of 150 Sq. feet. The tenant was occupying the premises by paying a monthly rent of Rs. 550/-. The landlords are doing business in plastic utensils at Jai Hind Market, Thrissur, which shop room is situated some distance away from the petition schedule shop room. The need projected was that the room was required for the purpose of using it as a godown for stocking his goods. According to him, he was not having in his possession any other shop room suited for the purpose. It was also contended that rent was in arrears from January, 2004 and though legal notice was sent on 25.1.2005 and the same was accepted, the tenant has not discharged the dues.
3. The tenant challenged the claim of the landlords by raising various contentions. The bona fides of the landlords were called in question. According to the tenant, the schedule shop room was unsuitable for the use of the landlords. The landlords could very well use the shop room in their possession or a portion of the residential home for using it as a godown was essentially the contention advanced. The non-existence of other shop rooms in the vicinity was highlighted to reject the claim of the landlords. It is also pleaded that the income from the business conducted in the shop room was the main source of his livelihood.
4. The 1st respondent was examined as PW-1. Exts.A1 to A6 were marked. The tenant entered the box and gave evidence as RW1. Exts.B1 to B5 were marked on his side. The Rent Controller, by the impugned order, upheld the claim of the landlords and ordered eviction.
5. Against the order of eviction, the tenant preferred appeal as R.C.A. No. 5 of 2008 before the Appellate Authority. It was brought to the notice of the Appellate Authority that the landlords had come into possession of another building having Door No. XI/67 during the pendency of the proceedings. Taking note of this subsequent event, the Appellate Authority allowed the appeal and held that the tenant was entitled to the benefit of the 1st proviso to sub-section (3) of section 11 of the Act.
6. The said matter was taken up in revision by the landlords. This Court by order dated 20.7.2011 in R.C.R. No. 214 of 2011 remanded the matter back with a direction to consider the question as to why the landlords did not occupy the building which came into their possession for accomplishing the need projected in the Rent Control Petition. The parties were permitted to let in further evidence.
7. Pursuant to the remand order, a Commissioner was appointed to conduct local inspection. Ext.C1 report was submitted. PW-1 & RW1 were recalled and re-examined. The Commissioner Advocate was examined as PW-2. The appellate authority after evaluating the evidence afresh came to the conclusion that the petition schedule shop room was more suited to the needs of the landlords and held that the claim was bona fide and ordered eviction. The said order was taken up in revision by the tenant and by order dated 23.9.2013 in R.C.R. No. 152 of 2012, this Court taking note of the submission of the tenant that the evidence as regards the unsuitability of door No. XI/67 was not properly probed, remanded the matter back to the Appellate Authority for fresh consideration. Parties were permitted to adduce further evidence.
8. Pursuant to the second order of remand, the matter was considered afresh by the Appellate Authority and by the impugned order, it was held that the
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