IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 18TH DAY OF DECEMBER 2023 / 27TH AGRAHAYANA,
1945
RCREV. NO. 242 OF 2023
AGAINST THE JUDGMENT DATED 24.06.2023 IN RCA NO.123 OF
2022 OF ADDITIONAL DISTRICT COURT, KOZHIKODE / I
ADDITIONAL MACT, KOZHIKODE CONCURRING WITH THE COMMON
ORDER IN RCP NO.63 OF 2018 DATED 19.10.2022 OF ADDITIONAL
MUNSIFF COURT ,KOZHIKODE-II
REVISION PETITIONER/APPELLANT/RESPONDENT:

SULAIMAN, AGED 70 YEARS

ZAM ZAM COOL BAR, P.P. 13/26 (OLD NO. 12/1616)
KANNADIPOYIL PARAMBU, P.O POOVATUPARAMBA DESOM,
KOZHIKODE TALUK, PIN - 673008

BY ADVS.
P.JERIL BABU
SRINATH GIRISH
PRASUDHA.S

RESPONDENTS/RESPONDENTS/PETITIONERS:

1 DR. M. FAISAL, AGED 53 YEARS

PERUVAYAL VILLAGE, POOVATTUPARAMBA DESOM,
P.O POOVATTUPARAMBA, KOZHIKODE TALUK,
BY POA HOLDER FIROS, S/O MANTHATTIL KOYA HAJI,
AGED 50 YEARS, PERUVAYAL VILLAGE,
POOVATUPARAMBA DESOM, P.O POOVATTUPARAMBU,
KOZHIKODE TALUK, PIN - 673008

2 M. FOUSIA, AGED 52 YEARS

D/O MANTHATTIL KOYA HAJI, POOVATTUPARAMBA,
DESOM, P.O POOVATTUPARAMBU,
KOZHIKODE TALUK, PIN - 673008

3 M. FIROS, AGED 50 YEARS

S/O MANTHATTIL KOYA HAJI, POOVATTUPARAMBA,
DESOM, P.O POOVATTUPARAMBU,
R.C.Rev. No.242 of 2023

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KOZHIKODE TALUK, PIN - 673008

THIS RENT CONTROL REVISION HAVING COME UP FOR

ADMISSION ON 18.12.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 R.C.Rev. No.242 of 2023

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P.B.SURESH KUMAR & JOHNSON JOHN, JJ.

-----------------------------------------------
R.C.Rev. No.242 of 2023
P: Tenant -----------------------------------------------
R: LL
Dated this the 18th day of December, 2023

ORDER

P.B.Suresh Kumar, J.

The tenant in a proceedings for eviction under

Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and

Rent Control) Act, 1965 (the Act), is the petitioner in this

revision petition. The respondents herein are the landlords. The

Rent Control Court rejected the claim under Section 11(2)(b)

and ordered eviction under Section 11(3), and the said decision

of the Rent Control Court was affirmed by the Appellate

Authority. The tenant is aggrieved by the said decisions of the

authorities below.

2. The tenanted premises is one of the four shop

rooms in a row of shop rooms. In the property in which the

tenanted premises is constructed, there is another building

also in which the respondents are conducting business in

cement and steel. The need set out by the respondents in the

eviction petition is that the existing facilities in the building in

R.C.Rev. No.242 of 2023

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which they are conducting business are not sufficient for the

expansion of their business and they intend to make use of the

building of which the tenanted premises is a part, after making

appropriate modifications and alterations, as an exclusive paint

division also as part of their business. The petitioner contested

the proceedings mainly on the ground that the need set out by

the respondents is not bona fide and that he is entitled to the

benefit of the second proviso to Section 11(3). As noted, the

authorities below concurrently found that the need set out by

the respondents is bona fide and that the petitioner is not

entitled to the benefit of the second proviso to Section 11(3). It

is on that basis, the petitioner is ordered to be evicted under

Section 11(3).

3. The learned counsel for the petitioner raised

two contentions. The first contention is that the concurrent

findings rendered by the authorities below as regards the bona

fides of the need of the respondents is unsustainable inasmuch

as the respondents are in possession of an extent of 20 cents

of land, indicating that if the need is genuine and bona fide,

the respondents can make provisions for storing paints in the

same property without disturbing the petitioner. The second

contention is that the third respondent who gave evidence in

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the proceedings on behalf of the respondents admitted that

there are no vacant buildings in the vicinity of the tenanted

premises and the said evidence has not been considered by

the authorities below while declining the petitioner the benefit

of the second proviso to Section 11(3).

4. The pleading of the respondents as regards

the claim under Section 11(3) of the Act as contained in the

eviction petition reads thus:

“ഹരജക രൽ മന ഹരജക രൻ ഇത സലത ത ട ത ടടതൽ ത ച

സമന, മ എന യതടയ മറ നർമ ണ സ മഗ ളതട ഒര ഹ ർഡ ത യർ
ച ട നടത രന ണ. ആയ ൽ ച ട ചരക ൾ മ യ യ ര/ യൽ
ത0 ക തചയന ന സ2 ര3മല. അ ന ൽ ത6 പറയന ത ടട അടകമള
ന ലമറ പ/ട ള പ6യത ആയ ഒ6ഞ ട റപയർ തചയ നന ക
ആ ശ3മ യ ഉൾഭ ഗ മ റങൾ രത തപയന സ ധനങൾ മ ത ത0 ക
തചയന ഒര തപയന ഭ ഗ കട തടങ നടതതണ ഉതമ ശJ സമ യ
സJന ശ3മ ണ.”

The respondents do not appear to have disputed the fact that

the land on which the tenanted premises and the building

occupied by the respondents are constructed, is one

measuring 20 cents. But, as noted, the need projected by the

respondents is that they intend to make use of the tenanted

premises as a separate paint division, as part of expanding

their business. The contention of the petitioner appears to be

that if the respondents want a place exclusively to start a paint

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division, they are free to construct a building in the excess land

in their possession and it is unnecessary for the said purpose

to evict the petitioner. No tenant can challenge the right of the

landlord to expand his business in whatever manner he

intends to do, to augment his revenue. Similarly, no tenant can

take the stand that if the landlord needs additional space for

expansion of his business, he should construct his own

building, if he has land in his possession which could be made

use for such construction, and that the landlord can seek

eviction of the tenant only if he does not have land for

construction. According to us, it is for the landlords to take a

decision as to whether the proposed business is to be started

in a new building or in an existing building, after evicting the

tenant. Needless to say, there is absolutely no merit in the first

contention taken by the petitioner.

5. Coming to the second contention, it is now

trite that the two limbs of the second proviso to Section 11(3)

are to be established by the tenant himself. Though the

respondents have pleaded in the eviction petition that there

are vacant rooms available in the locality, the petitioner has

not taken any steps to establish that there are no vacant

rooms in the locality, as is usually done in similar cases by

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taking out a commission. On that sole ground, according to us,

the authorities below ought to have rejected the claim under

Section 11(3). Be that as it may, the third respondent who

gave evidence on behalf of the respondents has stated in the

proof affidavit filed in lieu of the chief-examination that there

are vacant rooms in the vicinity of the tenanted premises.

However, during cross-examination, in answer to a question

put by the counsel for the petitioner, the third respondent has

stated that he did not make any enquiry to ascertain whether

there exists any vacant room in the vicinity of the tenanted

premises. It appears that in re-examination, in response to a

question put by the learned counsel for the respondents

themselves, the third respondent has stated that there are no

vacant rooms in the locality. It is on the basis of the said

statement that the learned counsel for the petitioner asserted

that there is an admission on the part of the third respondent

that there are no vacant premises in the vicinity of the

tenanted premises. The question is whether the tenant can

make use of the same to contend that he has discharged his

burden in terms of the second proviso to Section 11(3). We are

of the view that the aforesaid inconsistent evidence on the side

of the respondents as regards the availability of vacant rooms

R.C.Rev. No.242 of 2023

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in the vicinity of the tenanted premises cannot be relied on by

the petitioner to contend that he has discharged his burden to

prove that there are no vacant rooms in the vicinity of the

tenanted premises. The rent control revision is therefore,

devoid of merits and the same is, accordingly, dismissed.

The tenant, however, is granted six months' time

from today to surrender vacant possession of the premises on

condition that he shall file an unconditional undertaking before

the Rent Control Court within two weeks from the date of

receipt of a copy of this order to vacate the tenanted premises

within six months and also that he shall pay the arrears of rent,

if any, within the aforesaid time limit and continue to pay the

monthly rent on or before the tenth day of every succeeding

month till he vacates the premises.

Sd/-
P.B.SURESH KUMAR, JUDGE.

Sd/-
JOHNSON JOHN, JUDGE.
ds 18.12.2023