Muhamed Mustaque, J.
This revision is filed by the tenants, aggrieved by the concurrent findings under Section 11(3) of the Act.
2. We heard the learned Senior Counsel Shri V.V.Ashokan appearing for the revision petitioners-tenants and also Shri R.Laxmi Narayan, who entered appearance on behalf of the landlord on a Caveat.
3. The landlords filed eviction petition under Sections 11(2)(a)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the “Act”). The Rent Control Court disallowed the claim under Section 11(2)(a)(b) and allowed the claim under Section 11(3) of the Act. Challenging the order of eviction, the tenants filed an appeal before the Rent Control Appellate Authority as R.C.A.No.153/2011. The Appellate Authority also affirmed the findings under Section 11(3) of the Act and dismissed the appeal. Challenging the concurrent findings, this revision petition has been filed.
4. Learned Senior Counsel Shri V.V.Ashokan argued that there is no pleading in the rent control petition to the effect that the husband of the third respondent-K.K.Preethi (fourth petitioner in the eviction petition) is a dependant and no material has been placed before the courts below to prove that the husband of Smt.K.K.Preethi is dependent on her. It is also argued by him that the second respondent-Sunil K.Jayan (third petitioner in the rent control petition), whose need is projected along with the dependant of Smt.K.K.Preethi, having admitted that he is doing share broker business, did not establish the need that is envisaged under Section 11(3) of the Act. Learned counsel for the landlords on the other hand would submit that both the courts below have found bona fide need pleaded by the landlords as genuine and the tenants were unable to substantiate their claim under the second proviso to Section 11(3) of the Act. He also supports the findings of the Rent Control Court and the Appellate Authority.
5 The need projected in the Rent Control Petition is for starting a business in stationery, gift articles and plastic wares by Sunil K.Jayan and husband of Smt.K.K.Preethi. We had called for the records from the courts below. We have also gone through the pleadings urged in the Rent Control Petition. It is specifically pleaded that the husband of Smt.K.K.Preethi is dependent on her for the purpose of accommodating his business in the petition schedule building. It is also specifically stated in the eviction petition that Shri Sunil K.Jayan is doing share trading in a small scale manner and in order to augment their income, they have decided to start business. It is also mentioned in the eviction petition that the husband of Smt.K.K.Preethi is working as a security personnel in a private firm. We have also gone through the deposition of PW1 (Sunil K.Jayan), the third petitioner in the rent control petition. He has deposed that the husband of the fourth petitioner (Smt.K.K.Preethi) is dependent on the fourth petitioner for the purpose of starting the proposed business. We also find there is no challenge regarding the dependency deposed by PW1. The factum of the dependency has to be ascertained from the point of view of the requirement of the dependant for starting business in the petition schedule building. The revision petitioners have no case that the husband of the fourth petitioner (Smt.K.K.Preethi), the alleged dependant, is having any other vacant rooms in his possession. In the absence of any such pleading or evidence, the courts below concurrently found that the husband of the fourth petitioner is dependent on her. The requirement of both the third petitioner and the husband of the fourth petitioner, to start their own independent business in the petition schedule building cannot be said as irrational or unwarranted. Having business or occupation elsewhere is not a ground to say that the husband of the fourth petitioner, dependant did not require the petition schedule building. The courts below concurrently found that the landlords have established the ground for eviction under Section 11(3) of the Act. We also notice that the tenants even though pleaded protection under the second proviso to Section 11(3) of the Act, did not adduce any evidence to show that their main source of income is from the tenanted premises. The tenants are also in possession of adjacent room, which is found more spacious than the petition schedule building. Of course, it is admitted that, in both the rooms the tenants were carrying on business in painting and other ancillary goods. However, it is for the tenants to establish that their main source of income is from the petition schedule building and there are no other vacant buildings in the locality. The tenants have failed to establish their claim under the second proviso to Section 11(3) of the Act and we also find that the courts below are justified in finding that the tenants are not entitled for protection under second proviso to Section 11(3) of the Act.
6. The learned counsel for the revision petitioners-tenants also contended that the demand of the landlords is only for enhancement of rent. It is pointed out that the landlords approached the Rent Control Court by R.C.P.No.164/2010 for fixing fair rent and the fair rent was fixed through mediation and the rent is enhanced to Rs.13,500/-. A petition for fixation of fair rent by the landlords cannot be a ground to reject the claim for eviction under Section 11(3) of the Act. The landlords, as a matter of right, are entitled for fixation of fair rent. Therefore, fixation of fair rent, pending proceedings under Section 11(3) of the Act, is not a ground to deny the claim under Section 11(3) of the Act.
7. We have gone through the findings rendered by the courts below. We do not find any illegality or impropriety in the orders passed by the courts below. We also do not find any merit in this revision petition. The revision petition is accordingly, dismissed.
8. However, the learned counsel for the revision petitioners sought one year’s time to vacate the building. Considering the nature of the business conducted in the building, we are inclined to grant time upto 31/12/2014 on the following terms:-
i. The tenants shall file an affidavit before the rent control court or the execution court as the case may be, undertaking to handover possession of the petition schedule building to the landlords by 31/12/2014, which will be done within a period of six weeks from today.
ii. The tenants shall pay arrears of rent, if any, to the landlords within six weeks from today.
iii. The tenants shall continue to pay rent to the landlords till actual delivery of the petition schedule building to the landlords.
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K.T.SANKARAN, JUDGE
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A.MUHAMED MUSTAQUE, JUDGE