IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN
MONDAY, THE 9TH DAY OF JULY 2018 / 18TH ASHADHA, 1940
RCRev..No. 185 of 2018
RCA 185/2016 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE DATED 04-12-2017 RCP 1/2013 of PRINCIPAL MUNSIFF-I. KOZHIKODE
## REVISION PETITIONER(S)/APPELLANT/1ST RESPONDENT.
BABURAJAN, S/O NARAYANAN, KP 3/187 B, (NEW NO.3/125B 2, EENAM ELECTRICALS, IN FRONT OF KODUVALLY BUS STAND, MORATTAKKUNNUMMAL PARAMB, KODUVALLY PO, KOZHIKODE-673 572.
BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN
SRI.K.S.RAJESH
## RESPONDENT(S)/PETITIONERS:
1. AHAMMED KUTTY HAJI,
AGED 76 YEARS, S/O EYYAMBALATH MOIDEEN KUTTY, KODUVALLY AMSOM DESOM, KOZHIKODE TALUK.
2. SHEREEFA, D/O AHAMMED KUTTY HAJI, KODUVALLY AMSOM DESOM, KOZHIKODE TALUK.
3. SARADA, KP 3/187 B, (NEW NO.3/125 B2, EENAM ELECTRICALS, IN FRONT OF KODUVALLY BUS STAND, MORATTAKUNNUMMAL PARAMB, KODUVALLY PO, KOZHIKODE-673 572.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **K. HARILAL & ANNIE JOHN, JJ.**
## **------------------------------------------RCR No. 185 of 2018 (B)**
**-----------------------------------------Dated this the 9[th] day of July, 2018.**
## **ORDER**
## K. Harilal,J.
The revision petitioner is the appellant in RCA No. 185 of 2016 of the Rent Control Appellate Authority, Kozhikode as well as the first respondent in RCP No. 1 of 2013 of the Rent Control, Kozhikode. This revision petition has been filed challenging the concurrent findings of the courts below granting an order of eviction against him under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short).
2. The parties are referred to as in the Rent Control Petition. According to the petitioners, the second petitioner needs the petition schedule building for starting a stationary and toy shop. The second petitioner has no avocation or sources of income. The petitioners do not have any other suitable building for starting the said business. The first respondent is not mainly depending upon the income from the business carried on in the petition schedule building and several other shop rooms are available in the locality. The respondents resisted the claim for eviction under Section 11(2)(b) of the Act contending that though the rent was in arrear, it was from September, 2012 onwards only and the rate of rent was Rs.400 only and not Rs.1200/- as contended by the petitioners. As regards the claim for eviction under
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Section 11(3) of the Act, they contended that the need projected in the petition is not _bona fide_ and the petitioners have other vacant buildings of their own to start the said business. According to the 1[st] respondent, he is mainly depending upon the income derived from the business in the tenanted premises and no other buildings are available in the locality.
3. After considering the rival contentions and the evidence adduced by both sides, the courts below concurrently found that the need projected in the petition is _bona fide_ and the first respondent is not entitled to get protection under second proviso to Section 11(3) of the Act. As regards the claim for eviction under Section 11(2)(b) of the Act, the Rent Control Court found that the rent was in arrear from September, 2012 onwards at the rate of Rs.1200/-. But in the appeal, the appellate authority found that though the rent was in arrears from the said period, the rate of rent was Rs.400/- only and not Rs.1200/- as found by the Rent Control Court. However, the appellate authority also confirmed the findings of the Rent Control Court that the rent was in arrear and the respondent failed to pay the arrears, despite receipt of notice issued under Section 11(2)(b) of the Act and thereby the petitioner is entitled to get an order of eviction under Section 11(2)(b) also.
4. Heard the learned counsel for the revision petitioner. At the
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outset, we must remind ourselves that the limited scope and the extent of interference under Section 20 of the Act which is confined to the legality, propriety and regularity of the findings of the courts below only and there is no scope for re-appreciation of entire evidence on record, unless it is found that the findings are vitiated by perversity or nonconsideration of evidence. In the instant case, the arguments advanced by the learned counsel for the revision petitioner is confined to the appreciation of evidence only. We have carefully gone through the concurrent findings, whereby the courts below granted an order of eviction under Sections 11(2)(b) and 11(3) of the Act. As regards the order of eviction under Section 11(2)(b) of the Act, the appellate authority is justified in finding that the rent was in arrear from January, 2012 onwards at the rate of Rs.400 only. It is the case of the petitioners that though the tenency has commenced at the rate of Rs.400/-, subsequently, it was enhanced to Rs.1200/-. No evidence has been adduced to substantiate the enhancement of rent. The evidence on record shows that no written agreement or receipts has been produced by the petitioners to substantiate their claim that the monthly rent payable was Rs.1200/- . The Rent Control Court relied on the evidence of PW2 and Ext.A4 to arrive at a conclusion that monthly rent payable was Rs.1200/-. PW2 in his evidence stated that the first respondent is depositing the monthly rent of the building at the rate of Rs.1200/- in his
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account with Koduvally Service Co-operative Bank by means of daily collection. But the first respondent has specifically denied the same. The person who collected the rent was not examined in evidence. Ext.A4 does not, in any manner, show that the payments are made by the first respondent towards the rent due to the petitioners. In the above circumstances, the appellate authority is justified in reversing the findings of the Rent Control Court with respect to the rate of rent and found that the rent was in arrear from January, 2012 onwards at the rate of Rs.400/- only. We do not find any kind of perversity in the appreciation of evidence with respect to the order of eviction under Section 11(2)(b).
5. Coming to the concurrent findings granting an order of eviction under Section 11(3) of the Act, the first petitioner was examined as PW1 and the second petitioner, for whose need the shop room was sought to be evicted, was examined as PW2. Both PW1 and PW2 were subjected to cross examination and the courts below concurrently found that they have stood by the _bona fides_ of the need spoken by them in the chief examination and the respondents miserably failed to bring out anything contrary in the cross examination. In view of the concurrent findings of the courts below, we are not inclined to take a different view with respect to the credibility and reliability of the oral evidence given by PWs1 and 2. Coming to the first proviso, no evidence has been adduced
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by the respondents to prove that the petitioners have vacant buildings of their own in their possession. It is to be remembered that the initial burden of proof under the first proviso is on the tenant.
6. Coming to the second proviso, it is needless to say that both the limbs of second proviso are conjunctive and the burden of proof is on the tenant. No evidence has been adduced by the first respondent to prove the monthly income, which is being derived from the business carried on in the tenanted premises. In _**Shahul Hameed A. v. P.E. Abdu Razak**_ [2016(5) KHC 820], this Court held that the tenant who is hiding his income from the Rent Control Court is not entitled to get protection under the second proviso to Section 11(3) of the Act. Similarly, no evidence has been adduced by the first respondent to prove that no other alternative buildings are available in the locality to shift the business from the tenanted premises. Thus, the respondents have miserably failed to discharge the burden of proof under the second proviso to Section 11(3) of the Act. Therefore, the courts below are fully justified in finding that the first respondent is not entitled to get protection under the second proviso also. On an analysis of the aforesaid findings, we do not find any kind of illegality or impropriety in the said findings and we further find that the appreciation of evidence is just and proper and no interference under the revisional jurisdiction is warranted. Accordingly, this revision petition is dismissed.
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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 six 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 today.
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 six months from today.
3. The affidavit shall be filed within a period of one month from today.
In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondents are entitled to enforce the order.
## **K. HARILAL, JUDGE.**
**ANNIE JOHN, JUDGE.**
_Rv_
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