Annie v. Abbas and Abdul Saleem

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940** **RCRev..No. 145 of 2017** **AGAINST THE JUDGMENT DATED 05-09-2016 IN RCA 13/2013 of ADDL. DISTRICT COURT AND RENT CONTROL APPELLATE AUTHORITY, NORTH PARAVUR** **AGAINST THE ORDER DATED 30-07-2013 IN RCP 24/2012 of RENT CONTROL COURT, ALUVA** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:-** **-------------------------------------------** **ANNIE, AGED 56 YEARS, W/O.JOHNY, SNUFF CENTER, 8/633, THEMBADATH BUILDINGS, BANK JUNCTION, ALUVA P.O., PIN - 683 101.** **BY ADV.SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:-** **--------------------------------------** **1. ABBAS, AGED ABOUT 56 YEARS, S/O.VALIYAPARAMBIL THEMBADATH HYDROSE, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK, ALUVA P.O., PIN - 683 101.** **2. ABDUL SALEEM, AGED ABOUT 51 YEARS, S/O. VALIYAPARAMBIL THEMBADATH HYDROSE, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK, ALUVA P.O., PIN - 683 101. R1 & 2 BY ADVS. SMT.K.LATHA SRI.K.K.MOHINUDHEEN SMT.M.K.HAJARA SMT.BOBBY U. NAIR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DST** ## **K. HARILAL & ANNIE JOHN,JJ.** ## **= = = = = = = = = = = = = = = = =** **R.C.R.No.145 of 2017** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 4[th] day of July, 2018_ ## **O R D E R** ## **K. Harilal, J.** The revision petitioner is the tenant/ respondent in R.C.P. No.24 of 2012 of the Rent Control Court, Aluva. The said R.C.P. was filed by the respondents herein against the revision petitioner herein, seeking an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 _(hereinafter referred to as 'the Act')._ 2. According to the respondents, the revision petitioner is the tenant in occupation of the petition schedule building owned and possessed by them jointly and the same was leased out to the revision petitioner on monthly rent of `490/-. They ## **R.C.R. No.145 of 2017** ## **-: 2 :-** are in _bona fide_ need of the said building for starting a business of Mobile shop cum photostat work for the wife of the 2[nd] respondent, by name Rahana. The said Rahana has no job or any sources of income and thereby she is the dependant of the 2[nd] respondent for the petition schedule building. The revision petitioner is not depending upon the income from the business in the petition schedule building and several other vacant shop rooms are available in the locality. The respondents have no other vacant buildings of their own to start the aforesaid business for the said Rahana. With the aforesaid averments, they prayed for an order of eviction under Section 11(3) of the Act. 3. The revision petitioner resisted the claim for eviction, contending that the need projected in the petition is not _bona fide_ . According to her, the need projected in the petition is a pretext for ## **R.C.R. No.145 of 2017** ## **-: 3 :-** eviction only. The petition schedule building is not suitable for the proposed business, as it is a room having 50 sq.feet only. Even if the 2[nd] respondent's wife wants to start a business as stated in the petition, there are other rooms in the possession and ownership of the respondents, whereas the revision petitioner is depending upon the income from the petition schedule shop room and no suitable buildings are available in the locality to conduct the revision petitioner's business. With the aforesaid averments, the revision petitioner prayed for dismissal of the Rent Control Petition. 4. After considering the rival pleas and evidence adduced by both parties, the Rent Control Court allowed the petition, by granting a decree for eviction under Section 11(3) of the Act. Though, the revision petitioner had preferred R.C.A. No.13 of 2013 before the Appellate Authority, the ## **R.C.R. No.145 of 2017** ## **-: 4 :-** Appellate Authority also concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the concurrent findings, whereby the courts below granted an order of eviction under Section 11(3) of the Act to the respondents are challenged in this revision petition. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 6. The scope and extent of consideration under Section 20 of the Act are confined to the legality and propriety of the findings of the courts below only. This Court is not inclined to reappreciate the entire evidence on record on factual findings, unless the said findings are perverse. Though, this revision petition has been filed on various grounds challenging the entire findings on merits, the learned counsel for the revision ## **R.C.R. No.145 of 2017** ## **-: 5 :-** petitioner mainly focused his arguments on the concurrent findings of the courts below that nonexamination of the dependant is not fatal. According to the learned counsel for the revision petitioner, non-examination of the dependant for whose need the eviction was sought for is fatal. 7. Per contra, the learned counsel for the respondents advanced arguments to justify the findings of the courts below that the nonexamination of the dependant is not fatal. The prime point to be considered in this revision is, whether the non-examination of the dependant, for whose need the petition schedule shop room is required, is fatal or not? We find that the legal position on the aforesaid question stands settled by plethora of decisions of this Court. It is well settled by the decisions of this Court in _**Devayani v. Pulickaparambil Hamsa Haji**_ [1997(1) KLJ 230], ## **R.C.R. No.145 of 2017** ## **-: 6 :-** _**Musthafa Haji v. Umbichi**_ [2004(2) KLT 1110] and _**Ammu and others v. Nafeesa and Others**_ [2015(5) KHC 718] that non-examination of dependant is not fatal, as the need is always that of the landlord, though the dependant is a beneficiary of the need. 8. Coming to the instant case, in order to prove the _bona fides_ of the need, both landlords were examined as PW.1 and PW.2. According to the landlords, they are in _bona fide_ need of the petition schedule building to start a shop of mobile phones with photostat service. The landlords were examined as PWs.1 and 2 and they have spoken to the _bona fides_ of the need, in tune with the averments in the petition and they offered themselves for cross-examination. _Bona fide_ is a state of mind and the need must be honest and sincere, where the landlord himself testifies as to his state of mind as to _bona fides_ of his needs and offers himself ## **R.C.R. No.145 of 2017** ## **-: 7 :-** for cross-examination. His oral testimony as such is liable to be accepted, unless the tenant brings out anything contrary in cross-examination. This is the dictum laid down by the decision _**Sreekumaran Nair v. Ponnuswami Chettiyar**_ [2010(3) KLT 444]. In the instant case, the courts below concurrently observed that PWs.1 and 2 stood by the _bona fides_ of the need projected in the chief-examination, during the cross-examination, though they were subjected to the cross-examination at length. 9. It is specifically held by the courts below that nothing has been brought out to discredit the evidence of PWs.1 and 2 with respect to the _bona fides_ of the need projected in the chiefexamination. In view of the concurrent findings of the courts below, we are unable to take a different view. In the absence of any material contrary to the aforesaid finding. Where the _bona fides_ of the ## **R.C.R. No.145 of 2017** ## **-: 8 :-** need projected by the landlord is reliable and creditworthy, the non-examination of the dependent is not fatal. 10. Coming to the 1[st] proviso, though it was contended that the respondents have several other buildings to start the proposed business, no evidence has been adduced to prove the said contention. Even though the revision petitioner was examined as RW.1, she could not point out the identity of the vacant room which was allegedly in the possession of the landlords at the time of filing the rent control petition. Thus, the courts below are justified in finding that the _bona fides_ of the need projected in the petition is not hit by the 1[st] proviso to Section 11(3) of the Act. 11. As regards the 2[nd] proviso, though the revision petitioner contended that the income from the business in the petition schedule shop room is ## **R.C.R. No.145 of 2017** ## **-: 9 :-** the main sources of income, no evidence has been adduced to prove the probable income, which is being derived from the business in the petition schedule shop room. It is trite law that the oral assertion of the tenant alone to the extent that she is depending on the income from the business in the petition schedule shop room is not sufficient to discharge the burden of proof. After evaluating the evidence of RW.1, the courts below observed that RW.1 was not in a position to convince the court that she was having sufficient income from the business carried on in the tenanted premises and that income was the major source of livelihood of herself and her daughter. It is needless to say, both limbs of the 2[nd] proviso are conjunctive and it is for the tenant to plead and prove the ingredients of both limbs of the 2[nd] proviso. The revision petitioner has failed to discharge the burden of ## **R.C.R. No.145 of 2017** ## **-: 10 :-** proof under the 2[nd] proviso. That apart, she herself admitted that there are rooms in the municipal buildings and she had not made any enquiry as to the availability of those vacant room on rent. In the above analysis, we find that the courts below have appreciated the evidence on record in its correct perspective and we do not find any kind of perversity in any of the findings, whereby the courts below granted an order of eviction under Section 11(3) of the Act. 12. This revision petition is devoid of merits and dismissed accordingly. The learned counsel for the revision petitioner prayed for two years time to vacate the tenanted premises. The learned counsel for the respondents opposed the said request and pointed out that the Rent Control Petition was filed in the year 2012 and more than six years have been elapsed, after filing of the ## **R.C.R. No.145 of 2017** ## **-: 11 :-** rent control petition and the need projected is a _bona fide_ one. So, granting of further time to evict the premises will be fatal to the respondents. 13. Having regard to the facts and circumstances of the case, the revision petitioner is given six months time to vacate the tenanted premises on the following conditions: - _(i) The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within six months, from today._ - _(ii)The respondent/tenant shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall_ **R.C.R. No.145 of 2017** ## **-: 12 :-** ## _continue to pay rent without default._ - _(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioners/landlords will be at liberty to proceed with the execution of the eviction order._ The rent control revision is dismissed accordingly. All pending Interlocutory Applications will stand closed. Sd/- ## **K. HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** DST //True copy// P.A. To Judge