IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 4TH DAY OF JUNE 2013/14TH JYAISHTA 1935
RCRev..No. 273 of 2012 () --------------------------
AGAINST THE JUDGMENT IN RCA 15/2001 of RENT CONTROL APPELLATE AUTHORITY, NORTH PARAVUR DATED 13-06-2012
AGAINST THE ORDER IN RCP 21/1998 of RENT CONTROL COURT (MUNSIFF), N.PARAVUR DATED 24-02-2001
REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
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AUGUSTINE ALIAS CHINNADAS S/O.AATTULLI ANTONY, THEVARKADU MURI VARAPUZHA VILLAGE, PARAVUR TALUK.
BY ADV. SRI.T.H.ABDUL AZEEZ
RESPONDENT(S)/RESPONDENT/PETITIONER:
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PRASANNA W/O.NANU, NAYIPPADIYIL, CHIRAKKAKAM KARA VARAPUZHA VILLAGE, PARAVUR TALUK.683 513.
R BY ADV. SRI.P.VISWANATHAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 0406-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **`T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R. No.273/2012`**
**`~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 4[th]` day of June, 2013**
## **`O R D E R`**
## **`Ramachandran Nair, J.`**
The tenant of a building, who is conducting a photo studio in one room of the petition schedule premises has approached this Court by filing this revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act').
2. The Rent Control Court allowed eviction after finding that the landlady has established _bona fide_ need by order dated 24/02/2001. This was taken in appeal R.C.A.No15/2001 which was once allowed by the Appellate Authority. In the revision petition filed by the landlady as C.R.P.No.2675/2002, this Court remanded the matter again to the Appellate Authority. The Appellate Authority, in the impugned Judgment, after considering various aspects, concurred with the findings of the Rent Control Court.
3. The learned counsel for the petitioner Shri T.H.Abdul Azeez contended that going by the averments in the eviction petition and in the evidence given by the landlady as PW1, it was stated that the building is required for starting an Icecream Parlour mainly for augmenting the income
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of the family and to meet the expenses for the marriage of her daughter. It is submitted that the landlady even at that point of time was having business in bakery, known as “Major Bakery” and the daughter was conducting another one known as “Prasanna Bakery” in the ground floor of the petition schedule building. The daughter has already been married away and therefore in view of the subsequent event, actually, there is no necessity for the landlady to evict the tenant. After referring to the evidence of PW1, it is stated that she has admitted that the business in “Major Bakery” is one where she is getting the income, that too, sufficient for her purposes.
4. The learned counsel further submitted that actually it is a case where the eviction petition should be one filed under Section 11(8) of the Act mainly for additional accommodation and not under Section 11(3) of the Act which fact is not considered by any of the authorities. Learned counsel therefore submitted that there is nothing to show that the need projected is _bona fide_ as on the overall assessment of the evidence it can be safely found that it is only a ruse to evict the tenant as there are sufficient facilities in the two bakeries for conducting Icecream Parlour.
5. The learned counsel for the landlady Shri P.Viswanathan submitted that the findings have been properly rendered by both the authorities and the plea
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under Section 11(8) of the Act was not at all raised in any forum and therefore the same cannot be countenanced.
6. Before going to the said aspect, we will make a reference to the order passed in the revision petition filed by the landlady, C.R.P.No.2675/2002, by a Division Bench of this Court, whereby the earlier Judgment of the Appellate Authority was set aside and the matter was remanded for fresh consideration. After referring to the evidence on both sides, this Court found that the appreciation of oral evidence given by PW1 by the Appellate Authority was not proper and the issue should be considered by the Appellate Authority.
7. Evidently, the remand was ordered to consider the evidence and to enter a finding on the _bona fide_ need pleaded by the landlady. It was never argued before this Court that the plea is one to be considered under Section 11(8) of the Act and not under Section 11(3) of the Act. The parties are bound by the order of remand. We find from a reference to the orders rendered by the Division Bench of this Court and by the Appellate Authority that no plea was raised by the tenant with regard to the insufficiency of the ground under Section 11(3) of the Act and that actually the eviction petition should be one treated as under Section 11(8) of the Act. Therefore, sitting in revision, we will not be justified in entertaining
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such a new plea. Hence, we reject the said contention.
8. The petitioner has taken elaborate grounds in the revision petition, with regard to the genuineness of the _bona fide_ need pleaded also.
9. Even though the learned counsel for the petitioner strenuously contended that the idea of the landlady can only be termed as mere desire and not a genuine _bona fide_ need, we find from the order passed by the Rent Control Court that the said Court was of the view that it is a case where the landlady wanted to start a new business in icecream, to augment the overall income of the family. It was also stated that she wanted to meet the marriage expenses of her daughter. Merely because she was able to meet the expenses for marriage from other sources, it cannot be said that the said subsequent event will have the impact of nullifying the eviction sought. Therefore, even though the learned counsel for the petitioner submitted that the said subsequent event of marriage will have greater impact on the _bona fide_ need pleaded, we cannot agree. The Rent Control Court, after referring to the evidence of the landlady, noticed that she wanted to begin the business in icecream in the petition schedule building itself, which was mainly for the purpose of augmenting the income of the family also. This reasoning was affirmed by the Appellate Authority after relying upon the dictum laid down by the Apex Court in _**M/s. Sait**_
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R.C.R.No.273/2012
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## _**Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal and others**_
**[AIR 2006 SC 770]** wherein it was held that “it is always the prerogative of landlord that if he requires the premises in question for his _bona fide_ use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not a genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to chose the nature of the business and place of business”.
10. Judged in the light of the facts pleaded in the eviction petition, whereby it was clearly expressed that the income received from the present business being conducted by way of bakery is not sufficient for meeting the expenses of the family as well as for meeting the marriage expenses, it cannot be said that the need projected is not genuine. The Appellate Authority was therefore of the view that the tenant has no right to say that the landlady need not start the business in Icecream Parlour. While concluding so, the entire evidence of PW1 was found to be acceptable. Even though it is contended by the learned counsel for the petitioner that normally it cannot be expected that the landlady who is having two bakeries will start an Icecream Parlour, as rightly observed by
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the Appellate Authority, it may not be a matter for the tenant to decide. It is upto the landlady to start the business in Icecream Parlour for which she requires the building occupied by the tenant. We find that the appreciation of evidence is not faulty and the view taken is not so perverse warranting interference in revision.
11. With regard to the provisos to Section 11(3) of the Act, the findings are against the tenant. There is no plea to attract the first proviso to Section 11(3) of the Act that the landlady is having another room ready for occupation. Regarding the two limbs of the second proviso, the finding is that the tenant has not proved that he is mainly depending upon the income from the business and that no other suitable building is available, sufficient to accommodate the business. The above findings have been recorded based on the evidence adduced in the case and regarding the said aspect also there is nothing to interfere. Accordingly, we confirm the orders passed by the authorities below and dismiss the revision petition.
12. We grant the tenant time upto 31/12/2013 to vacate the premises on the following conditions:
i. Arrears of rent, if any, will be deposited within one month from today.
ii. He will file an affidavit before the execution court
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undertaking to surrender peaceful vacant possession of the room within the time granted by this Court.
iii. He will continue to pay amounts at the same monthly rate, namely, ` .1,500/- fixed by this Court in C.R.P.No.2675/2002 till vacant possession is given.
It is made clear that if any of the above conditions are violated, the petitioner will not be entitled for the benefit of this Order.
**==> picture [25 x 11] intentionally omitted <==**
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(T.R. Ramachandran Nair, Judge.)
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**==> picture [25 x 10] intentionally omitted <==**
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(A.V. Ramakrishna Pillai, Judge.)
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## **`ms`**
