Thankammu, Sivadas, Devadas and Mohandas vs Biju Veettil and Others

N.K. Balakrishnan, J.—The tenants are in revision. An order of eviction concurrently passed u/s 11(3) of the Act is challenged in this revision. The need projected by the original landlord was that the petition schedule building is required bona fide for enabling his eldest son Biju to start business in sanitary wares and his second son Binoj to shift his business in aluminum fabrication which was conducted by him in another shop situated away from the main road.

The tenants resisted the petition contending that Biju is actually a contractor and that the averment that his contract business is running in loss is false. It is also contended that the second son Binoj is profitably conducting business in aluminum fabrication in the building owned by him and as such there is no necessity for two sons to use the petition schedule building for starting any business whatsoever. The tenants also claimed protection under the second proviso to Sub-section (3) of Section 11 of the Act contending that they are mainly deepening upon the income derived from the workshop conducted in the petition schedule building for their livelihood. The evidence consisted of oral testimonies PW1s to PW3 and Exts.A1 to A7 on the side of the landlords and RW1 and 2 and Exts.B1 to B8 on the side of the revision Petitioners/tenants. The commission report was also marked as Ext.C1. The learned Rent Control Court on evaluating the evidence found that the need urged by the landlords is bona fide. It was also found that though the tenants could prove the first limb of the second proviso to Section 11(3), they could not substantiate the second limb of the second proviso so as to get protection under the second proviso.

The learned Appellate Authority after reappraisal of the evidence concurred with the view taken by the learned Rent Controller.

Sri. Santhosh P. Poduval, learned Counsel for the revision Petitioners has argued in extenso on all the grounds raised in the revision petition. The learned Counsel has submitted that the need projected in the petition is totally different from the one stated in Ext.A1 notice which was sent on 19/7/2005. The contention raised by the landlords that only because the father died and that there was change of circumstance cannot be accepted. The learned Appellate Authority has found that in Ext.A1 also the need stated by the landlords was for demolition of the present building and to construct a new building for enabling his sons to start business and also to accommodate his eldest son and his family to reside in a portion of the same. The contention that there is no need for starting business cannot be accepted.

It is also argued that Binoj the second son is actually conducting business in aluminum fabrication in the building owned by the family and so there is no necessity to shift that business to the petition schedule building. It is in evidence that, that building is not having road frontage. Admittedly, it is situated about 50 meters interior to the main road so that it cannot be said that the landlords should not think of getting a building having road frontage for profitably conducting their business. The contention that Biju, who was examined as PW1 is still doing contract business and as such there is no necessity for him to start business, was not acceptable to the courts below. Even if PW1 is at present conducting contract business there is no reason why he should not think of starting business in sanitary wares in a portion of the petition schedule building especially since he is doing civil contract work. After scanning the evidence given by PWs1 and 2, the courts below concluded that the need projected by the landlords is bona fide. We find no reason to interfere with the same.

With regard to the benefit of the second proviso to Section 11 (3), even if it is accepted that the tenants are depending mainly on the income from the trade/business carried on in the petition schedule building, they could not establish that there are no vacant building available in the locality. The courts below have found that one Ramakrishnan had let out portions of his premises to the tenants for conducting business and that the tenants could have obtained portion of the building or property held by Ramakrishnan for starting a workshop. The tenants could not prove that there are no other suitable vacant buildings available in the locality for shifting their workshop. We find no reason to interfere with that finding as well.

Though it was contended by the tenants before the courts below that the lease was of the year 1966 and that they are entitled to the protection u/s 106 of the KLR Act, that was found against by the courts below relying upon Ext.A7- Registered Rent Deed which is of the year 1969. No acceptable evidence was produced by the tenants to prove that they were granted lease of the land for industrial or commercial purpose on or before 20/5/1967. As such that plea was also rightly found against by the courts below. In view of what stated above, we confirm the order of eviction passed by the courts below.

The revision petition is dismissed.