Point of Law: Section 11(8) of Act reads as a landlord who is occupying only a part of a building, may apply to Rent Control Court for an order directing any tenant occupying whole or any portion of remaining part of building.

ORDER :

(Mohammed Nias C.P., J.)

1. The tenant-respondent in RC(OP) No.4/2014, on the file of the Rent Control Court, Ettumanoor, has filed this revision aggrieved by the judgment of the Rent Control Appellate Authority-IV, Kottayam, dismissing the appeal, RCA No.40/2016, that challenged the order of eviction under Sections 11(2) (b), 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'Act').

2. The respondents/landlords, contended that the petition scheduled shop room was obtained by them by virtue of sale deed No.1514/2011 of Ettumanoor SRO. The tenant took the petition scheduled room on lease from its prior owner, wherein he is conducting a flower business. The room on the southern side of the petition scheduled room was taken on rent by the father of the landlords from the previous owners and was conducting a jewellery business therein. While so, the landlords herein purchased the entire building including the petition schedule room from its owners. It was contended that the rent at the rate of Rs.1,800/- per month had been paid upto April 2011 and the tenant defaulted on payment of the rent from May 2011.

3. The landlords also contended that the room where they are conducting the jewellery business, is inconvenient and not having sufficient space to display the ornaments and accommodate the customers and if the petition schedule room is also obtained, both can be joined together, which will provide sufficient and necessary space for running the jewellery business conveniently and profitably. It was also their contention that the tenant is hardly conducting any business in the petition schedule room.

4. The tenant filed an objection contending that it is his son P.J. Joy who is the tenant and that they are not aware of the purchase of the building by the present landlords. It is also contended that rent has been paid to the prior owners by P.J. Joy and no rent is due. It is also the argument of the tenant that the landlords are the owners of a double-storied building situated exactly opposite to the petition schedule room where they are conducting textile business and therefore, the petition schedule room is not at all necessary for them to expand the jewellery business.

5. The trial court considered the evidence of PW1 P.C.Suresh and Exts.A1 to A6 marked on their side. The tenant examined DWs.1 to 6 and marked Exts.B1 to B11(a). Exts.C1 and C1(a) were marked as court exhibits. The Rent Control Court, after considering the rival contentions and appreciating the evidence adduced, ordered eviction under Sections 11(2)(b), 11(3) and 11(8) of the Act. The tenant filed the appeal reiterating the contentions taken before the Rent Control Court.

6. The Appellate Authority found that going by Ext.A2 judgment in O.S.No.183/2012, which was a suit filed by P.J.Joy, son of the tenant herein, it was found that the petitioners before the Rent Control Court were the landlords and that the present respondent is the tenant in the petition scheduled room. The judgment and decree in O.S.No.183/2012 have become final between the parties and therefore, the appellate court concurred with the finding of the trial court that the respondent in the Rent Control Petition was the tenant.

7. Regarding the order of eviction granted by the trial court under Section 11(2)(b), the appellate court held that after the filing of the appeal, the respondent had paid the arrears of rent and accordingly vacated the order of eviction under Section 11(2)(b) of the Act. Since there is no appeal at the instance of the landlords, the correctness of the said finding under Section 11(2)(b) of the Act is not an issue to be decided in this case.

8. Regarding the contention of the tenant that a new building has been put up by the landlords just opposite to the petition schedule room, ideal to conduct a jewellery business, we hold that it was entirely upto the landlords to decide where to start the business. The landlords had specifically pleade