Assainar V. v. Chaliyadan Fathima

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** **RCRev.No. 301 of 2017** **AGAINST THE JUDGMENT & DECREE DATED 12.04.2017 IN RCA 3/2012 of THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), KALPETTA** **AGAINST THE JUDGMENT & DECREE DATED 30.11.2011 IN RCP 3/2009 of THE RENT CONTROLLER (MUNSIFF), KALPETTA** ## **REVISION PETITIONER/ APPELLANT/ RESPONDENT :** **ASSAINAR V., AGED 67 YEARS, S/O MOOSA, R/AT VYSHYAMBATH HOUSE, PLANTER AND BUSINESS MAN, PANAMARAM AMSOM ANDDESOM, MANANTHAVADY TALUK, WAYANAD DISTRICT.** **BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.T.K.SANDEEP** ## **RESPONDENT/ RESPONDENT/ PETITIONER :** **CHALIYADAN FATHIMA, AGED 52 YEARS, W/O YOOSUF, MUYYARIKANDY HOUSE, HOUSE WIFE, PANAMARAM AMSOM AND DESOM, MANANTHAVADY TALUK, WAYANAD DISTRICT.** **BY ADVS. SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev.No. 301 of 2017** 2 ## **ORDER** ## **Annie John, J.** The revision petitioner/ tenant is the respondent in RCP.No.03/2009 before the Court of Rent Controller (Munsiff), Kalpetta and the appellant in RCA.No.03/2012 before the Court of the Rent Control Appellate Authority (Addl. District Judge-II), Kalpetta, Wayanad. 2. The landlord had filed the above RCP for evicting the revision petitioner under Sections 11(3), 11(4) (iii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 [Hereinafter referred to as 'the Act']. The Rent Control Court vide order dated 30.11.2011 partly allowed the petition under Sections 11(3), 11(4)(iii) and 11(4)(v); but dismissed the petition under Section 11(4)(ii) of the Act. The landlord has not filed any appeal against the finding entered under Section 11(4)(ii) of the Act. The above order allowing the petition under Sections 11(3), 11(4)(iii) and 11(4)(v) of the Act was challenged by the **RCRev.No. 301 of 2017** 3 tenant/ revision petitioner; and vide judgment dated 12.04.2017 in RCA.No.03/2012, the learned Appellate Authority set aside the order of eviction under Section 11(4)(v) of the Act; but however confirmed the order of eviction under Sections 11(3) and 11(4)(iii) of the Act. Highly aggrieved by the order, the revision petitioner has approached this Court alleging that the finding entered by the Rent Control Court is against facts and evidence. 3. The learned counsel for the revision petitioner has strenuously argued on the points relating to Section 11(3) of the Act. According to him, the _bona fide_ need urged by the landlord is without any ground and the _bona fide_ requirement of the landlord, who was examined as PW1 would show that she has no necessity to start a business of her own and that she has no previous experience and the allegations in the counter statement is that she is having other source of income and her husband and son are having substantial income from other business. Further it was argued that the landlord has another building in her possession in the same city, town or **RCRev.No. 301 of 2017** 4 village. The tenant has taken a contention that the landlord and her husband has other buildings and shops in the Kalpetta town. But he has not produced any document or tendered any oral evidence in this regard. Later, it was found that room No.13/161 is in the possession of PW1's husband. Ext.A12 is the copy of the consent letter given by PW1 on 08.05.2003 to obtain a license for conducting business for her husband. The Advocate Commissioner has also reported in Ext.C1 Commission Report that no other vacant rooms are available in the building, which houses the petition schedule rooms. It is a well settled fact that “previous experience to conduct business is not necessary as a pre-condition for seeking eviction on the ground of _bona fide_ need to conduct business” as has held in _**Kurian**_ _**K.Kuriakose v. Usha Cherian [2008(1) KLT 739]**_ . 4. In _**Purushotham & Co. Ltd. v. Vimalabai**_ _**Prabhulal [2005(4) KLT 452 (SC)]**_ the Apex Court held that “it is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is the privilege of the landlord to choose the **RCRev.No. 301 of 2017** 5 nature of the business and place of business”. In fact, the revision petitioner has not tendered any oral evidence or produce any documents to show that he is conducting any business in the petition schedule building. PW1 has produced the extract of the building tax assessment register maintained by the Kalpetta Municipality, which is seen issued in the year 2009. Even though the revision petitioner has pointed out that the _bona fide_ requirement urged by the petitioner is under the ruse of eviction, he did not adduce any evidence to prove the same. Further, as per the 11(3) proviso is concerned, when the _bona fide_ requirement is proved by the landlord, the burden will shift upon the revision petitioner to establish the first and 2[nd] proviso to Section 11(3) of the Act. 5. In this case, the revision petitioner/ tenant has failed to establish that he is mainly depending upon the income which derives from the business carried on in the petition schedule shop room. Therefore, we have a considered view that the revision petitioner has not succeeded in establishing the fact that the landlord is not **RCRev.No. 301 of 2017** 6 entitled to get eviction under Section 11(3) of the Act. The finding entered by the Rent Control Appellate Authority is only to be confirmed. 6. As regards Section 11(4)(iii) is concerned, the learned counsel for the landlord has pointed Exts.B1 to B4, the information obtained as per Ext.A20 by invoking the Right to Information Act and that documents will prove that it belongs to Malanad Coffee Industries. When the landlord wants to get eviction under Section 11(4)(iii) of the Act, the burden is upon him to establish that the revision petitioner is in exclusive possession of any other rooms. On production of Exts.B1 to B4, it is proved that it belongs to Malanad Coffee Industries. No evidence was tendered by the landlord to the effect that the tenant is in exclusive possession of any room in his possession. 7. After hearing the arguments advanced by both sides and perusing the documents and evidence, we have a considered opinion that the respondent/ landlord has failed to establish the fact that the tenant is in exclusive possession of any other room. Therefore, he fails to obtain **RCRev.No. 301 of 2017** 7 an order of eviction under Section 11(4)(iii) of the Act. Accordingly, we hereby confirm the eviction order under Section 11(3) of the Act and reject the prayer for eviction ordered under Section 11(4)(iii) of the Act. In the result, this Revision is partly allowed. 8. The learned counsel for the revision petitioner/ tenant prayed for sometime to vacate the tenanted premises. Having regard to the submission at Bar, the revision petitioner/ tenant is given five months' time from today to vacate the tenanted premises on the following conditions :- 1. The revision petitioner/ tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within five months from today. 2. The revision petitioner/ tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. **RCRev.No. 301 of 2017** 8 3. In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/ landlord will be at liberty to proceed with the execution of the eviction order. Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM