Baby Joseph v. Aleyamma Thomas and Sam Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **MONDAY, THE 10TH DAY OF APRIL 2017/20TH CHAITHRA, 1939** **RCRev..No. 130 of 2017 () --------------------------** **AGAINST RCA 11/2014 of THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT),PATHANAMTHITTA DATED 09-02-2017** ## **AGAINST RCP 11/2012 of MUSNIFF COURT,ADOOR DATED 22-11-2013** ## **REVISION PETITIONER/APPELLANT/DEFENDANT:** **---------------------------------------** **BABY JOSEPH, AGED 75 YEARS, S/O.VARGHESE, AJITH VILLA, KARUVATTA MURI, PERINGANAD VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT** **BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)** **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **-----------------------------------** ## **1. ALEYAMMA THOMAS,** **AGED 74 YEARS, W/O.THOMAS, KENKAYIL PUTHEN VEEDU, RESIDE PRESENTLY AT RIHA HOUSE, PANNIVIZHA MURI, ADOOR VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT-689645** ## **2. SAM THOMAS,** **AGED 51 YEARS, S/O.THOMAS, KENKAYIL PUTHEN VEEDU, RESIDE PRESENTLY AT RIHA HOUSE, PANNIVIZHA MURI, ADOOR VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT-689645** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & RAJA VIJAYARAGHAVAN. V., JJ. -----------------------------------------------------R.C.R. No. 130 of 2017** ## **----------------------------------------Dated this the 10[th] day of April, 2017** ## **O R D E R ~~~~~~~** ## **Raja Vijayaraghavan, J.** - 1.The tenant is the revision petitioner. - 2.The application filed by the landlady under section 11 (3) of the Kerala buildings (Lease and Rent Control) Act, 1965 (“the Act” for short), was allowed by the Rent Control Court, Adoor. On appeal, the Rent Control Appellate Authority, Pathanamthitta, confirmed the order of the Rent Control Court and dismissed the appeal. The instant revision petition is filed challenging the above order. - 3.Vacant possession of the tenanted premise was sought by the landlady for expansion of the business of her son. It has come out in evidence that the son of the landlady, who gave evidence as PW 1, was running a rubber trading business in a shop room having an area of 750 square 2 R.C.R. No.130/2017 feet. The said shop room was situated in the ground floor of the building and near to the petition schedule shop room. - 4.PW1 stated in meticulous detail and in tune with the pleadings in the petition about his dire need to expand his business. His evidence that lack of space was proving to be a stumbling block to the future prospects of the business was believed by both the courts below. He also gave evidence that his business has picked up drastically and if possession of the petition schedule shop, which is having an area of 400 square feet, and another shop room occupied by PW2 having an area of 144 sq. feet is obtained, he would be able to stock more products and take his business to the next level. - 5.A neighboring shop owner was examined as PW2, who deposed that he would vacate the premises as and when required. - 6.PW3, the Manager of Ware Housing Corporation, gave R.C.R. No.130/2017 3 evidence that PW2 used to store rubber in the godown of the Ware Housing Corporation during peak season by paying rent. Exhibit X1 also proved this fact. 7.PW4, the Sales Tax Inspecting Assistant Commissioner gave evidence which revealed that the 2[nd] petitioner has been doing rousing business with yearly turnover in excess of Rs. 8 Crores. 8.In order to convince us that interference with the order is warranted, the learned Counsel appearing for the petitioner submitted that the 1[st] proviso to section 11 (3) of the Act would be attracted. This argument is advanced on the basis of the evidence of PW2. The said witness had stated that he is prepared to vacate the premises as and when required to do so by the landlord. According to the learned counsel, when suitable premises are available, the proviso will come into play and the Rent Control Court will be interdicted from ordering eviction. However, we are unable to accept the said contention. We find from the R.C.R. No.130/2017 4 evidence that the shop room occupied by PW2 for running a barbershop was having an area of 144 square feet. From the evidence of PW 1, it is evident that much larger space is required for expanding his business. Furthermore, the 1[st] proviso would apply only when the landlord is having vacant possession of a suitable shop room to put the same to his use. No such contingency arises in the instant case. 9.The learned counsel would then contend that the 2[nd] petitioner is not a dependant on the petitioner as he is running an independent business and is affluent. A Full Bench of this Court in **Thalayodi Raghavan v. Koorantavita Kelappan and Others** [2006 (1) KLT 1] relied on a Bench decision of this Court in **Ismail v. Kesavan** [2014 (2) KLT 56] wherein it was held that dependency does not mean financial dependency, but dependency for the building which belongs to the landlord. In view of the above, the said contention has no legs to R.C.R. No.130/2017 5 stand and the same is repelled. - 10.The learned counsel would then contend that eviction was sought for additional accommodation of the son and hence the petition ought to have been filed under section 11 (8). This contention was raised before the appellate authority and the same was rejected relying on the case of **Ismail P. v. Tithikutty Umma** (2014 (3) KHC 678) . It was held by a Division Bench of this Court that occupation of the part of a building which is contemplated under sub section (8) of section 11 of the Act is occupation by the landlord and not by the dependant of the landlord. We go with the above binding precedent. - 11.Though the learned counsel appearing for the petitioner has contented that the eviction petition was filed when the demand for enhancement of rent was refused, we find no reason to accept the same. The landlords cannot be faulted for demanding rent or enhancement of rent and on the said reason, an application for eviction on the ground R.C.R. No.130/2017 6 of bona fide need cannot be derailed. 12.Insofar as the 2[nd] proviso to sub section (3) of Section 11 of the Act is concerned, both the courts below have concurrently held that the tenant is not entitled to the benefit of the said proviso. 13.We remind ourselves that the scope of interference by revisional court in exercise of powers under Section 20 of the Act is restricted to cases where the authorities below have relied on irrelevant considerations, ignored valuable items of evidence or applied wrong principles of law. A re-appreciation of the evidence on record and substitution of the findings of the authorities below is not permissible in exercise of revisional jurisdiction. After having evaluated all the relevant aspects, we are of the view that the finding of fact recorded by the Appellate Authority is according to law and does not suffer from any error of law. We are satisfied about the correctness, legality, regularity and propriety of the order passed by the R.C.R. No.130/2017 7 Appellate Authority. We find no reason to interfere with the same. Having regard to the aforesaid, this revision petition fails and the same is dismissed. 14.The learned counsel appearing for the petitioner at this stage would submit that in order to mitigate the loss sustained and also for the shifting of the business, he may be granted a breathing time and seeks for a time frame of eight months to vacate the premises. This request is opposed by the learned counsel appearing for the respondents. - 15.Having regard to the facts and circumstances, we are of the view that the revision petitioner can be granted time period of eight months to vacate the premises, but on terms: - a) Within two weeks from the date of receipt of a copy of this order, the petitioner/tenant shall remit the entire arrears, if any, as on date and shall also file an affidavit before the executing court unconditionally R.C.R. No.130/2017 8 undertaking to surrender vacant possession of the premises to the respondents/landlords on or before 31.12.2017 - b) The tenant shall pay charges towards use and occupation of the shop room at the current rent rate from today till the vacant possession of the premises is granted to the respondents/landlords. - c) Execution proceedings, if any, pending before the executing court shall be kept in abeyance till 31.12.2017, if the aforesaid conditions are satisfied. - d) If there is default in performing any of the conditions imposed in clauses (a) and (b) above, the benefit given to the tenant as per this order will stand recalled and the executing court shall effect delivery forthwith. **Sd/-** **K.HARILAL, JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN V. , JUDGE** vps