Poovathoor Mahesh vs Beevi Khairunissa

N.K. Balakrishnan, J.—Order of eviction passed concurrently u/s 11(3) of the Act is challenged by the tenant in this revision. The original landlord Kaziya Hussain Sahib was in Thalassery. His business was wound up. Thereafter, he left for Karnataka. He died leaving behind his wife and two sons. This petition was filed by the landlady (wife of Hussain Sahib) claiming eviction on the ground that one of the sons is unemployed and so he wants to start business in textiles with the help of the other son who is presently working in Gulf countries. The son who was in Gulf country was examined as PW1. It was contended by PW1 that he would come down to Thalassery to help his brother in the conduct of the business in textile.

The claim for eviction was resisted by the revision Petitioner/tenant contending that the original landlord and his family left for Karnataka several years back and they have absolutely no interest in Thalassery. In support of that it is contended that the notice issued to the landlady in this case was actually not served on her. The learned Rent Control Court after analyzing the evidence found that the need projected is bona fide. The tenant contended that he is entitled to the protection of the second proviso to Sub-Section 3 of Section 11 of the Act. That was found against. The learned Appellate Authority concurred with the order of eviction passed by the Rent Control Court and the appeal was dismissed.

Sri. P.B. Krishnan, the learned Counsel for the revision Petitioner would submit that the landlady has not been examined. Similarly their son for whose need the building is sought to be evicted was also not examined and another son who is in Gulf country alone was examined as PW1 and so, there is dearth of evidence to prove the bona fides of the claim put forward by the landlady. This submission is resisted by Sri. M.V. Amaresan, the learned Counsel appearing for the landlady pointing out that the averments in the petition would show that the need is for the conduct of textile business for the son who is unemployed and it was specifically stated that the business is proposed to be conducted with the help of PW1. Since PW1 has given evidence it cannot be found that there is lack of evidence to prove the bona fides of the need. Both the authorities have after analyzing the evidence found that the need projected is bona fide. We find no illegality, irregularity or impropriety in the finding so entered by the authorities below.

The tenant could not substantiate his plea for protection of the second proviso to Sub-Section 3 of Section 11. Hence, the revision must fail. In the result, this RCR is dismissed.

Sri. P.B. Krishnan, the learned Counsel for the revision Petitioner would submit that the tenant has been conducting business therein in the building for the last more than three decades and so at least two years'' time may be granted to the tenant to surrender the petition schedule building. This request has been resisted by Sri. M.V. Amaresan, the learned Counsel appearing for the landlady. Sri. Amaresan also submitted that the monthly rent presently paid is Rs. 1,500/-. He also submitted that the building consisted of two rooms downstairs and two rooms upstairs and if it is let out now, the landlady will get at least Rs. 15,000/- per mensem. Considering all the aspects we are inclined to grant time to the tenant till 15/06/12 on the following conditions:

The revision Petitioner shall file an affidavit within three weeks from today before the execution court or Rent Control Court, as the case may be, undertaking to surrender the vacant possession of the petition schedule building peacefully to the landlady on or before 15/06/12 and undertaking further that arrears of rent, if any, due as on date will be discharged within one month from today and further that he will continue to pay occupation charges at the rate of Rs. 3,000/- per mensem with effect from 1st July, 2011 till the date of actual surrender.

We make it clear that the tenant will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein.