Balan v. C.P. Biju

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939** **RCRev..No. 180 of 2017** **----------------------** **AGAINST THE JUDGMENT IN RCA 103/2016 OF THE RENT CONTROL APPELLATE AUTHORITY/ADDITIONAL DISTRICT JUDGE, VADAKARA DATED 23-02-2017.** **AGAINST THE ORDER IN RCP 5/2011 OF THE RENT CONTROLLER/ MUNSIFF, PERAMBARA DATED 01-03-2016.** **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **------------------------------------------** **BALAN,** **S/O.KORAN, AGED 61 YEARS, BUSINESS, VELLILODUMMAL HOUSE, KALAPATHUR (PO), KALPUTHUR AMSOM DESOM, KOYILANI TALUK.** **BY ADVS.SRI.K.B.SIVARAMAKRISHNAN SRI.K.SANEESH KUMAR** ## **RESPONDENT/APPELLANT/PETITIONER:** **-------------------------------** **C.P.BIJU,** **S/O.KUNHIKRISHNAN, AGED 42 YEARS, 'AMBADI', NADATHALAKKAL THAZHA, PERAMBRA (PO), ERAVATHOOR AMSOM, KIZHINJANIAM DESOM, KOYILANDI.** ## **BY ADV. SRI.ZUBAIR PULIKKOOL (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## _**K. HARILAL & P. SOMARAJAN., JJ.**_ _**--------------------------------------------------------R.C.R. No.180 of 2017 ---------------------------------------------------------Dated this the 20[th] day of June, 2017**_ ## _**ORDER**_ ## _**Harilal, J.**_ The revision petitioner is the tenant who is confronting with divergent findings of the courts below under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). According to the landlord, he needs the petition schedule building for starting a textile business. He is aged 43 years. He has no avocation for his livelihood. He has no other vacant shop room in his possession and the tenant is not entitled to get the protection under Sec.11(3) of the Act. 2. Per contra, the tenant contended that the ## _**R.C.R. No.180 of 2017**_ -: 2 :- bona fide need projected in the Rent Control Petition is a ruse for eviction, as he is the son of an affluent businessman, having a textile shop and he is assisting his father in the textile business. So also, he is entitled to get the protection under the proviso to Sec.11(3) of the Act. 3. On the aforesaid pleadings, both parties adduced evidence and after considering the evidence, on record, the trial court found that the landlord has failed to prove the bona fide of the need and the tenant is entitled to get the protection under the proviso to Sec.11(3) of the Act. But, in appeal, the Appellate Court reversed all the aforesaid findings and found that the need is a bona fide one and the tenant is not entitled to get the protection under the proviso to Sec.11(3) of the Act. Thus, the legality and propriety of the divergent findings have come up before us, in this Rent Control Revision. 4. We have gone through the judgment under challenge and heard the learned counsel for the _**R.C.R. No.180 of 2017**_ -: 3 :- landlord and the learned counsel appearing for the tenant. 5. Going by the order passed by the Rent Control Court, we find that in order to prove the bona fides of the need, the petitioner was examined as P.W.1 and he has deposed that he has no avocation for his livelihood, even though he is aged 43 years and he wants to start a textile business for his livelihood. 6. Per contra, the tenant cross-examined him to drive out the point that he is the son of a wealthy businessman having another textile shop and therefore, the need is not a genuine one. In the trial court judgment, there is no finding to the effect that the need projected in the chief-examination was shattered in cross-examination; but the trial court has drawn an inference against the landlord on the belief that the father of the petitioner is an affluent businessman having another textile shop. 7. The Appellate Court evaluated the aforesaid _**R.C.R. No.180 of 2017**_ -: 4 :- finding in view of the decisions laid down in Deena Nath v. Pooran Lal [2001 KHC 1573]; Ammu and others v. Nafeesa and others [2015 (5) KHC 718 (DB)]; Basheer v. Ramani Gopalan and another [2014 (1) KHC 436 (DB) and Muhammed Basheer v. Mujib Rahman [2005 (4) KLT 697]. After reappreciating the evidence of P.W.1, in the light of the aforesaid decisions, the Appellate Court held that the law does not think that an impecunious landlord alone can think of starting an income earning activity in order that the need set up will pass through the test of bona fides. As rightly held by the Appellate Court, no evidence was brought out in the crossexamination to the effect that the petitioner is having wealth or any other avocation or any other sources of income for his livelihood. Only on the reason that his father is a wealthy business man having another shop, the need of the petitioner could not have been negatived under Sec.11(3) of the Act. Therefore, we find that the Appellate Court is justified in finding that _**R.C.R. No.180 of 2017**_ -: 5 :- the need projected by the petitioner is a bona fide one. 8. Coming to the proviso, needless to say, the burden is on the tenant to prove that the landlord has another building in his possession and the tenant is entitled to get the protection under Sec.11(3) of the Act. Going by the order passed by the Rent Control Court, it could be seen that the Rent Control Court appreciated the evidence, on record, under the proviso to Sec.11(3) of the Act on an erroneous legal proposition that the burden of proof under the first proviso is on the landlord. The burden of giving special reason for not occupying other vacant building in possession of the landlord would arise only if the tenant establishes the landlord is in possession of other vacant buildings. Thus, initial burden of proof is always on the tenant. Thus, the trial court absolutely went wrong in appreciating the evidence, on record, under an erroneous legal proposition, contrary to the decisions of this Court _**R.C.R. No.180 of 2017**_ -: 6 :- and the Appellate Court. In the above view, the Appellate Court reversed the findings under the proviso to Sec.11(3) of the Act and found that the tenant has failed to prove that the landlord has another vacant building in his possession. Similarly, the burden of proof under the second proviso is also on the tenant; but the Rent Control Court went wrong by holding otherwise. So, the Appellate Authority is justified in holding that the tenant is not entitled to get the benefit under the second proviso to Sec.11(3) of the Act. We do not find any kind of illegality or impropriety in the findings of the Appellate Court whereby the entire findings of the trial court stand reversed. There is no reason to interfere with the findings of the Appellate Court. Hence this Rent Control Revision is dismissed. 9. At last, the learned counsel for the revision petitioner sought for 12 months' time to surrender the petition schedule shop rooms. The learned counsel for the respondent opposed the said request. _**R.C.R. No.180 of 2017**_ -: 7 :- But, this Court is of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule shop room, on terms. The revision petitioner shall surrender the petition schedule shop rooms within 12 months from today, provided that they could comply the conditions given below within the specified time: (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 on or before 30/06/2018. (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 months from the date of receipt of a copy of this order and shall continue to pay rent without default. (iii) In the event of failure to ## _**R.C.R. No.180 of 2017**_ -: 8 :- comply any of the conditions stated above, the time granted to vacate the premises will stand automatically repealed and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order. Sd/- _**(K.HARILAL, JUDGE)**_ **Sd/-** _**(P. SOMARAJAN, JUDGE)**_ _**Nan/**_ _**//true copy//**_ _**P.S. To Judge**_