Abdul Khader @ Abdul Rahman Kutty Puthuvatharathundiyil @ Niyas Manzil House, Padinjarekkara Muri, Nedumprom P.O., Thiruvalla and Nabeeza Beevi Puthuvatharathundiyil @ Niyas Manzil House, Padinjarekkara Muri, Nedumprom P.O., Thiruvalla v. Gireesh Babu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939** **RCRev..No. 49 of 2014 () -------------------------** ## **AGAINST THE ORDER/JUDGMENT IN RCA 6/2007 OF THE RENT CONTROL APPELLATE AUTHORITY,PATHANAMTHITTA DATED 24-10-2013** **AGAINST THE ORDER/JUDGMENT IN RCP 5/2005 OF THE RENT CONTROL COURT, THIRUVALLA DATED 16-03-2007** **REVISION PETITIONER(S)/APPELLANTS/PETITIONERS :** **----------------------------------------------** **1. ABDUL KHADER @ ABDUL RAHMAN KUTTY PUTHUVATHARATHUNDIYIL @ NIYAS MANZIL HOUSE, PADINJAREKKARA MURI, NEDUMPROM P.O., THIRUVALLA.** **2. NABEEZA BEEVI PUTHUVATHARATHUNDIYIL @ NIYAS MANZIL HOUSE, PADINJAREKKARA MURI, NEDUMPROM P.O., THIRUVALLA.** **BY ADVS.SRI.V.V.ASOKAN (SR.) SRI.G.UNNIKRISHNAN** **RESPONDENT(S)/RESPONDENT/RESPONDENT :** **-------------------------------------** **GIREESH BABU** **PADARETHU VEETIL, PADINJAREKKARA MURI, NEDUMPROM P.O., THIRUVALLA-689 110.** **R1 BY ADV. SRI.P.B.KRISHNAN R1 BY ADV. SRI.P.M.NEELAKANDAN R1 BY ADV. SRI.P.B.SUBRAMANYAN R1 BY ADV. SRI.SABU GEORGE** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.HARILAL & A.M.BABU, JJ. .......................................... RCR No.49 of 2014 ........................................... Dated 14[th] November, 2017** ## **ORDER** ## **K.HARILAL, J.** The revision petitioners are landlords who filed RCP No.5/2005 before the Rent Control Court, Thiruvalla under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). The said Rent Control Petition was filed with the averments that the second son of the petitioners is an automobile engineering diploma holder and eldest son of the petitioners is also unemployed and that the petition schedule shop room is required for starting an automobile spare parts business for their sons who are dependents on them, for the petition schedule building. The respondent filed objection contending that there is no bona fide in the need of the petitioners and it is a ruse for eviction only. They claimed protection under the second proviso to Sec.11 (3) also. After trial, the Rent Control Court has passed an order rejecting the Rent Control Petition on a finding that, though, they have 2 RCR No.49 of 2014 succeeded in establishing the bona fide need the respondents/tenants are entitled to get a protection under the second proviso to Sec.11(3) of the Act. 2. Challenging the said order the revision petitioners filed appeal and the appellate authority allowed the appeal and eviction was allowed on the ground under Sec.11 (3) of the Act. 3. Respondent filed RCR 170/2011 before this Court challenging the said order of eviction passed by the appellate authority and this Court held that bona fide need pleaded is genuine and confirmed the findings rendered by the appellate authority on bona fide need. But this Court remanded the matter back to the appellate authority to consider the appeal afresh regarding the first and second proviso to Sec.11 (3) of the Act. The parties were given an opportunity to adduce further evidence also. 4. After the remand, an Advocate Commissioner was appointed to ascertain the availability of alternative rooms under the first proviso and non-availability of the 3 RCR No.49 of 2014 other alternative room in the locality. The commission report was marked as Exts C1 and C1(a). Exts A5 to A9 were marked on the side of the petitioners. PW3 to PW6 and CPW5 were examined. After considering the aforesaid evidence, the appellate authority dismissed the Rent Control Petition on a finding that the petitioners have failed to plead and prove special reasons under the first proviso and further held that the tenants are not entitled to get protection under the second proviso to Sec.11 (3) of the Act. Thus, the legality and propriety of the findings of the appellate authority that the claim under Sec.11 (3) of the Act is hit by the first proviso to Sec.11 (3) have come up in revision. 5. Heard the learned counsel for the revision petitioners and the respondent. 6. The sum and substance of the arguments advanced by the learned counsel for the petitioners is that the courts below ought to have found that the petitioners have pleaded and proved that the shop rooms in their possession are not suitable for their need. According to 4 RCR No.49 of 2014 the learned counsel, in view of the evidence on record, the findings of the appellate authority that the claim under Sec.11 (3) is hit by the first proviso to Sec.11 (3) is vitiated by perversity. The learned counsel for the respondent advanced arguments to justify the denial of order of eviction under the first proviso and to assail the findings under the second proviso to Sec.11 (3) of the Act. According to the learned counsel, it has come out in evidence that at the time of filing the Rent Control Petition the petitioners have other vacant room of their own in their possession. But they have failed to give special reasons for not occupying those buildings. Further it is contended that the evidence available on record are sufficient to prove that the respondent is entitled to get protection under the second proviso to Sec.11 (3) of the Act. 7. In view of the arguments at the Bar, the short question that arises for consideration is whether there is any illegality or impropriety in the findings of the appellate authority the claim for eviction under Sec.11 (3) 5 RCR No.49 of 2014 of the petitioners is hit by the first proviso to Sec.11 (3) of the Act. Going by the impugned judgment under challenge it is seen that the appellate authority has arrived at a finding that the petitioners have failed to plead and prove the non-availability of other vacant rooms of their own in their possession. After examining the averments in the Rent Control Petition and Ext C1 commission report the appellate authority have found that the petitioners have suppressed the availability of other vacant rooms of their own in their possession. It is true that in the Rent Control Petition the petitioners have stated that all the rooms in the building other than the petition schedule rooms are small shop rooms and the same are occupied by different tenants. Further it is stated that the petitioners have no building other than the residential building to conduct the proposed business. 8. But, the commission report shows that the petitioners have two other buildings of their own in the same locality. We are of the opinion that even if they did not disclose the availability of other buildings in their 6 RCR No.49 of 2014 possession in the Rent Control Petition, the absence of pleadings disclosing the availability of vacant building in their possession is not fatal, in view of the decision of this Court in **2016 (3) KLJ 247 (K.V.Kunhamina vs K.T Aboobacker Haji** particularly when both parties in the Rent Control Petitions have rightly understood the issue involved in the Rent Control Petition and adduced evidence to substantiate their rival pleas and no prejudice was caused to the respondent in this respect. Para 11 of the said decision is extracted below: 11. So it is clear from the above dictum that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before court and he had given special reasons for not occupying the same and both parties have adduced evidence on this aspect understanding the case of each other, then no prejudice will be caused to the tenant on account of the non disclosure of this fact in the rent control petition and it is for the court to consider the suitability or otherwise of the building so as to deny eviction on the ground of bona fide need. Therefore the absence of meticulous pleadings as regards the availability of other vacant buildings in the possession 7 RCR No.49 of 2014 of the petitioners is of no consequence at all in view of the evidence available on record with respect to the said issue. 9. Then the question to be considered is whether the respondent has succeeded in discharging the initial burden of proof by establishing that the petitioners have other vacant rooms of their own in their possession to start the proposed business. It is trite law that the primary burden of proof under the first proviso to Sec.11 (3) of the Act is on the tenant. After the remand to discharge the primary burden of proof under the first proviso to Sec.11 (3) of the Act, the respondent has taken out a commission to ascertain the availability of other vacant building in the possession of the petitioners and the non-availability of alternative buildings in the locality to shift his business. The Accommodation Controller was examined as CPW5. On the other hand, the first petitioner was examined as PW1 and other witnesses were examined as PWs 2 to 6. In Ext C1 (a) report the commissioner has stated that the petitioners have three 8 RCR No.49 of 2014 other buildings in their possession. More specifically it is reported that one building having six rooms is situated 2 kms away from the petition schedule building and another building having eight rooms is situated approximately 250 mtrs away from the petition schedule building at the eastern side. It is further reported that these two buildings are situated adjacent to the main road. But the commissioner reported that the building which was found 2 kms away from the petition schedule shop room was situated in a waterlogged area and the level of water surrounding the building was found at 4 feet from the ground. It has come out in evidence that earlier, the ground floor of the said building was rented out to Vijaya Bank for conducting a branch, but they have vacated the said premises for the reason that the said building is not suitable for them as it is situated in a waterlogged land. The said evidence is not challenged by the respondent in his evidence. Therefore the appellate authority is justified in finding that the building which is situated at a distance of 2 kms at the western side is not suitable for conducting 9 RCR No.49 of 2014 ## the proposed business. 10. Coming to the other building, it is situated on the eastern side of the petition schedule building at a distance of nearly 250 mtrs away from the petition schedule building. When the first petitioner was examined as PW1 he himself categorically admitted that the said building is a double storied building having four rooms in the ground floor and four rooms in the first floor. Further he admitted that all the rooms other than two rooms are in his possession. No further explanation was given, during the cross-examination, for not occupying the rooms in the ground floor of that building for the said proposed business. But in re-examination, he has evasively stated that those rooms are not suitable for his business as those shop rooms have no sufficient road frontage for conducting automobile spare parts business. It is also stated that their business competition is very high; but in the area where the petition schedule building is situated, the business competition is very low. But the alleged lack of road frontage is seen falsified by Exts A5 (f), (g) and (j) 10 RCR No.49 of 2014 photographs. It is pertinent to note that the said photograph is seen marked in accordance with law, by examining the photographer as PW5 and no challenge was raised against genuineness of the photographs. The photographs show that there is sufficient vacant space in front of the aforesaid shop rooms. Thus, it has come out in evidence that at the time of filing the Rent Control Petition, the petitioners have the aforesaid building with six vacant rooms in their possession and they have failed to give special reasons for not using the said shop rooms. Similarly, the alleged high business competition also lacks bona fides in view of the fact that the said building is situated at a distance of 250 metres only from the petition schedule building. In fact both buildings are seen situated in the same locality. 11. Further, the Commissioner has reported that the petitioners have two other buildings having more than thirty rooms in a different village. But, we find that the said fact, even if it is true, is of no consequence at all, as the said buildings are situated in a different village, far 11 RCR No.49 of 2014 away from the petition schedule building. It is not disputed that the said building is situated in Thiruvalla Municipality, whereas the petition schedule building is Nedumpram village. Besides, it has come out in evidence from the deposition of PW1 and C1 that the petitioner is in possession of another room in the same building. Initially, the said room was occupied by SR Enterprises and after the death of original tenant, the said room was kept closed, for two years, before the inspection of the commissioner. No reason was given for not occupying this room also. 12. In the above analysis, we are of the opinion that the appellate authority is justified in finding that the petitioners have failed to prove special reasons for not occupying vacant rooms which were in their possession at the time of filing of the Rent Control Petition. 13. The learned counsel for the respondent advanced arguments assailing the findings under the second proviso to Sec.11 (3). The learned counsel further invited our attention to the deposition of PW1 and 12 RCR No.49 of 2014 contended that first petitioner PW1 himself admitted that the respondent is depending on the income from the tenanted premises. In this context, it is needless to say, the burden of proof is on the tenant. But, no evidence has been produced by the respondent to prove the approximate daily income from the tenanted premises or his living expenses. What is admitted by PW1 is that the respondent is depending on the income from the tenanted premises. Even if the said admission is taken at its face value, it is not sufficient to arrive at a conclusion that the respondent is mainly depending on the income from the tenanted premises. In **2016 (5) KHC 820 (Shahul Hameed vs Abdul Rasaq)** this Court held that no tenant can claim protection under the second proviso to Sec.11 (3) of the Act, after hiding his income and evidence has to be adduced to prove his approximate income from the trade or business and his approximate living expense, to arrive at a finding that he is mainly depending upon the income from the business in the tenanted premises. In the absence of any kind of evidence from the part of the 13 RCR No.49 of 2014 respondent in this respect, the appellate authority is justified in finding that the respondent has not discharged the burden of proof under the first limb of second proviso. 14. As regards the second limb of the second proviso it has come out in evidence that several other vacant buildings are available in the locality. Even though, Accommodation Controller was examined as CPW5 and Ext X4 register was marked in evidence, the appellate authority found that the said evidence would not prove that no other buildings available in the locality. On the other hand, the evidence of PW6, the Panchayat Secretary shows that vacant room having a plinth area of more than 250 sqft owned by the Nedumpram Grama Panchayat was kept vacant for letting out. Further, the evidence given by PW4, the Treasurer and Executive Member of the Podiyadi Perunnarkkavu Devaswom shows that the three rooms owned by the said Devaswom are lying vacant and available for letting out to the tenants. Thus, the availability of other alternative vacant rooms in the locality stands proved by the evidence adduced by the 14 RCR No.49 of 2014 petitioner. 15. In the above analysis, we do not find any illegality or impropriety in the findings of the appellate authority that the claim for eviction under Sec.11 (3) is hit by the first proviso and the tenants are not entitled to get protection under the second proviso to Sec.11 (3) of the Act. Hence this Rent Control Revision is dismissed. sd/- **K.HARILAL Judge** sd/- **A.M.BABU Judge** sks/16.11.2017