Aavikkara Puliyeri Prabhakaran Kidavu v. Palyekkandi Sivadasan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940 RCRev..No. 170 of 2018 AGAINST THE ORDER IN RCP 48/2014 of RENT CONTROL COURT, KOYILANDY DATED 27-082016 AGAINST THE JUDGMENT IN RCA 268/2016 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE DATED 15-01-2018 ## REVISION PETITIONER/APPELLANT/RESPONDENT: AAVIKKARA PULIYERI PRABHAKARAN KIDAVU AGED 65 YEARS, S/O.LATE NARAYANAN NAIR, RESIDING AT KODAKKADANKANDY HOUSE, MELUR AMSOM AND DESOM, KOYILANDY TALUK, P.O.MELUR, KOZHIKODE DISTRICT. BY ADVS. SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN ## RESPONDENTS/RESPONDENT/PETITIONER: PALYEKKANDI SIVADASAN, AGED 59 YEARS, S/O.KUNHIRAMAN, CHEMANCHERY VILLAGE, KADALUR DESOM, P.O.CHEMANCHERY, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN-673 304. BY ADV. SRI.R.K.MURALEEDHARAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C.R. No. 170/2018 : 2 : ## **ORDER** Annie John,J. The revision petitioner is the tenant against whom an order of eviction has been passed by the Rent Control Court as well as the Rent Control Appellate Authority under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act ('the Act' for short). The respondent is the landlord who has filed the R.C.P. No. 48 of 2014 before the Rent Control Court, Koyilandy. 2. The case of the respondent/landlrod is as follows: The petition schedule building belonged to the respondent by virtue of Assignment Deed No. 1089/1996 of SRO, Chemencherry and the same was leased out to the revision petitioner by the predecessor of the respondent as per registered kachit No. 496/1988 of SRO, Chemmencherry for rent of Rs.100/- per month. According to the respondent/landlord, he is working abroad and he was intending to come back to his native place and to start a business of making sofa sets, furniture and curtains in the petition schedule shop room. He sent notices on 29.08.2014 and 26.09.2014 demanding vacant possession of the petition schedule shop room. He does not have any other business or job for his livelihood and he has no intention to go abroad again. He does not have any other suitable rooms in his possession to start the business. He has further contended that the revision petitioner/tenant is having other business and source of income and there are other shop rooms R.C.R. No. 170/2018 : 3 : available to shift his business. 3. The revision petitioner/tenant resisted the claim for eviction denying the averments in the petition. According to him, he is still in abroad and he is conducting business there. He is not having the ability and experience to conduct the proposed business. The rented shop room situates in Pookadu Town in a building named "Ponnu Buildings". There are four rooms in the ground floor and four rooms in the upstair of the building. The revision petitioner/tenant is conducting a bakery in the petition schedule building. Three other rooms are vacant in the building and the respondent/landlord's wife is conducting a private Bank in the upstair portion. Immediately before the institution of the Rent Control Petition, the landlord shifted his wife's business from upstair to the room next to the petition schedule shop room and those three rooms in the upstair is also vacant. 4. The petition schedule shop room is most suitable for starting the proposed business. The respondent/landlord is having experience and financial activity to start the proposed business. The revision petitioner is not mainly depending upon the income derived from the business conducted in the petition schedule shop room. He is having other business and source of income. There are other suitable shop rooms available in the locality for the revision petitioner/tenant to shift his business. 5. The revision petitioner/tenant filed a counter affidavit stating that he is not aware about the purchase of the petition schedule shop room by the petitioner. He has taken the petition schedule shop room on lease from the R.C.R. No. 170/2018 : 4 : predecessor-in-interest of the respondent/landlord and he is conducting business in it. The averment that the respondent/landlord is intending to start a business in the petition schedule premises after winding up his job abroad, is not correct. The respondent/landlord does not have the expertise and the ability to conduct the proposed business. The petition schedule shop room is situated in the building by name 'Ponnu Building' in Pookkadu and the building consists of four rooms in the first floor and four rooms in the ground floor. The revision petitioner is conducting business in the shop room bearing No. 6/680. According to the revision petitioner/tenant, there are three vacant convenient shop rooms in the ground floor suitable for conducting the proposed business of the respondent. The wife of the petitioner was conducting a firm by name 'Ponnu Bankers' in the first floor of the building a few months ago, she shifted her business near the petition schedule shop room. Similarly, three shop rooms are also lying vacant in the first floor of the building. It was contended that all those shop rooms are having better facilities than the petition schedule premises and are suitable for the proposed business of the respondent/landlord. The respondent/landlord is also having many other vacant rooms in the building by name 'Ponnu Tourist Home' situated in Kappad Beach Road. There are three vacant shop rooms in the ground floor of the said building, which is more suitable than the petition schedule shop room, and near the KSEB Office also, the respondent/landlord is having vacant possession of the shop rooms suitable for starting the proposed business. The respondent/landlord is having landed properties and houses and he is deriving R.C.R. No. 170/2018 : 5 : substantial income from it and there is no need for him to start the proposed business to eke out his livelihood. The revision petitioner is mainly depending upon the income from the bakery business which is being conducted in the petition schedule shop rooms for maintaining his family and there is no other rooms available for shifting his business. 6. The respondent/landlord has filed a rejoinder denying the facts as stated in the counter affidavit filed by the revision petitioner. The Rent Control Court considered three points. 7. On the side of the respondent/landlord, PWs 1 and 2 were examined and Exts.A1 to A25 were marked. On the side of the revision petitioner/tenant, RW1 was examined and Exts.B1 to B6 were marked. The report and the plan submitted by the Advocate Commissioner were marked as Exts.C1 and C2. After evaluating the entire evidence on record, the Rent Control Court, as per order dated 27.08.2016 in R.C.P. No. 48 of 2014, passed order of eviction under Section 11(3) of the Act and the same was confirmed by the Rent Control Appellate Authority. 8. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent/landlord. 9. It is the case of the respondent/landlord that he was working in abroad for a quite some time and now he left his job and he wants to settle in his native place. According to PW1, he wants to start a business in making sofa sets, furniture and curtains in the petition schedule shop room. In order to establish his claim, he himself was examined as PW1 and he has categorically R.C.R. No. 170/2018 : 6 : deposed before court that he _bona fide_ required the petition schedule shop room for eking out his livelihood. He had issued Exts.A1 and A2 notices asking the revision petitioner/tenant to vacate the tenanted premises. He has also deposed that he does not have any vacant rooms in his possession for starting the proposed business. The learned counsel for the revision petitioner/tenant argued that the _bona fide_ requirement projected by the petitioner is only a ruse for eviction and in fact, the respondent/landlord is settled in abroad. He does not intend to settle down in the native place and his intention is only to give the petition schedule shop room to the third parties on higher rent. From the evidence of PW1, it is borne out that he intended to give up his job abroad and settle down in his native place by conducting a business in the petition schedule shop room and has issued two notices to the revision petitioner asking him to vacate the shop room. He has further deposed that thereafter, he left his job and now came back to his native place. Since he has no avocation or job, he requires the petition schedule shop room for starting the proposed business. There is absolutely no evidence to establish that the respondent is still working abroad as has been contended by the revision petitioner. During examination, RW1 has also stated that he is not aware whether the petitioner has left his job and came back to his native place. There is no attempt on the part of the revision petitioner to prove that PW1 is still in abroad. It is settled law that there is no bar for the landlord to commence his business in the petition schedule shop rooms after returning from abroad by leaving his job there. In _**Raveendran M.N v. Sivaprasad**_ R.C.R. No. 170/2018 : 7 : [ILR 2017 (4) Kerala 869], it is held that an order of eviction under Section 11(3) of the Act can be granted in anticipation of a _bona fide_ need, reasonably and likely to arise in future. It is also held that the _bona fide_ need urged need not be current or urgent and it can be a prospective one also and such a need can never be said to be one without _bona fides_ or as a ruse for eviction. Even if it is assumed that the respondent/landlord is still working abroad or that the need is not current or urgent, the claim of the respondent/landlord cannot be rejected as _dehors bona fides._ Further, the landlord cannot be expected to sit idle without doing any business or job until he gets an order of eviction from a court of law, which may sometimes takes years. In view of the above, the contention that the respondent/landlord is not expected to start a business as he is working abroad cannot be accepted and cannot be said that the _bona fide_ requirement as urged by the respondent/landlord is incorrect. 10. The next question to be considered is whether the revision petitioner is entitled to get the benefits as contemplated under the first proviso to Section 11(3) of the Act. The revision petitioner has stated that the respondent is having vacant possession of large number of rooms which are suitable for the proposed business and the he has not given any special reasons for not occupying the same and also deposed that vacant shop rooms are available in the same building in which the petition schedule room is situated and in the ground floor of the building where 'Ponnu Tourist Home' is running. He has further contended that the petitioner is having vacant possession of two shop rooms near KSEB office also. Eventhough the revision R.C.R. No. 170/2018 : 8 : petitioner has stated that the respondent is having vacant possession of the building, the primary burden is on the revision petitioner/tenant to point out the exigency of the shop room in the ownership and possession of the landlord and if no reason is shown by the landlord for not occupying the same, the Rent Control Court can order eviction. This fact has been reiterated in _**Shanavas P. v. Kannaparambil Poulose**_ [2016 (3) KHC 44]. In _Kunju v. Fathima_ [2014 (3) KLT 56, it is held that the landlord need not plead the particulars of all the premises under their ownership and possession to claim an order or eviction and it is only when it is established that the landlord has another building of his own in his possession, for his occupation for the proposed need, he needs satisfy the Rent Control Court of the special reasons for not occupying the premises. It is very important to note that the specific case of the respondent/landlord is that he is not having vacant possession of any shop rooms suitable for starting the proposed business. The revision petitioner has contended that there are vacant rooms available in the building itself where the petition schedule shop room is situated; but he has not adduced any convincing evidence to substantiate the same. Ext.C1 is the Commission Report and Ext.C2 is the plan wherein it is stated that none of the rooms are available vacant in the building where the petition schedule shop room is situated. The revision petitioner could not able to point out that any vacant rooms in the said building in the possession of the petitioner to substantiate his contention. It is also contended that there are vacant rooms in the ground floor of the building where 'Ponnu Tourist Home' is conducted. According to R.C.R. No. 170/2018 : 9 : respondent, the building does not belong to him and is owned by his wife and he has produced Exts.A9 and A10 documents to substantiate his contention. The first proviso clearly shows that if the landlord has another building of his own in his possession in the same locality, then only the benefits of the proviso goes in favour of the revision petitioner. It is the definite case of the respondent/landlord that the building named 'Ponnu Tourist Home' does not belongs to him, but this fact has not been disproved by the revision petitioner by producing any cogent or convincing evidence. In the absence of such an evidence that no vacant rooms are available in the building where Ponnu Tourist Home is situated, we have no hesitation to find that the respondent is entitled to get the benefit as contemplated under the first proviso to Section 11(3) of the Act. 11. As far as the second proviso is concerned, the burden is heavy upon the revision petitioner/tenant to prove that he is mainly depending upon the income derived from the business which is being derived from the petition schedule shop room and there are no other buildings available in the locality to shift his business. He has produced Ext.B6 document which was prepared by his son. But, there is nothing in Ext.B6 to prove that it pertains to the business which is being conducted by the revision petitioner in the petition schedule building and the entries in the book were from 01.01.2006 onwards i.e., after the filing of the Rent Control Petition. The revision petitioner has not produced any sort of accounts, books or any documents to substantiate that he is fully depending upon the income which derives from the petition schedule R.C.R. No. 170/2018 : 10 : shop room. Moreover, RW1 was given evidence that he is having 45 cents of land in which coconut trees, areacanut trees etc. are standing. He is also earning income from the said property. Further he has admitted that he is having a licence in his name for conducting a poultry farm. In _**kunhiraman Nair v. Madhavi**_ [2002 (2) KLT 10], it is held that the tenant must prove that he is principally and chiefly depending upon the income derived from the business carried on in the petition schedule room. In the absence of any evidence to prove the income which derives from the business conducted in the petition schedule building and the fact that he is having income from other sources, I find that he has failed to establish that he is fully depending upon the income which derives from the petition schedule building. In fact, RW1 could not able to establish that no other suitable buildings are available in the near locality. He has not taken any steps to bring out this fact before this Court. So, in the absence of such an evidence, the revision petitioner has failed to establish the second proviso to Section 11(3) of the Act. In fact, the revision petitioner failed to establish that the respondent did not want the petition schedule shop room for his _bona fide_ occupation to start the business of making sofa sets, furniture and curtains. 12. On evaluation of the arguments and the evidence on record, we find that there is a concurrent finding with regard to the _bona fide_ requirements as claimed under Section 11(3) of the Act. We do not find any illegality or impropriety in the findings entered by the appellate authority while dismissing the appeal. Hence this revision is devoid of merits and the same is R.C.R. No. 170/2018 : 11 : accordingly dismissed. However, the learned counsel for the revision petitioner seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given eight months' time to vacate the tenanted premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of a copy of this order. 2. The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of eight months from today. 3. The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_