Biju v. V. Suresh Babu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** **RCRev.No.303 OF 2019** **AGAINST THE JUDGMENT DATED 26-07-2018 IN RCA 27/2016 OF** **RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT – V), KOLLAM** **AGAINST THE ORDER DATED 26-02-2016 IN RC(OP) 35/2013 OF RENT CONTROL COURT (PRINCIPAL MUNSIFF COURT), KOLLAM** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **BIJU,AGED 43 YEARS,S/O.BAHULEYAN, THUSHARA,AYATHIL CHERRY,VADAKKEVILA VILLAGE AND POST,KOLLAM DISTRICT – 691 010.** **BY ADVS. SRI.SURESH KUMAR KODOTH SRI.BINU GEORGE** ## **RESPONDENT/RESPONDENT/PETITIONER:** **V.SURESH BABU,REPRESENTED BY POWER OF ATTORNEY HOLDER KARTHIK, S/O.V.SURESH BABU,V.S.BHAVAN, AYATHIL CHERRY,VADAKKEVILA VILLAGE AND POST, KOLLAM DISTRICT – 691 010.** **BY ADV. SMT.T.S.MAYA (THIYADIL)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R.NO.303/2019 2 ## **ORDER** ## **K. Harilal, J.** The revision petitioner herein is the tenant, against whom an order of eviction had been passed by the Rent Control Court, Kollam under Sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short) and confirmed by the Rent Control Appellate Authority, Kollam in R.C.A. No. 27/2016. 2. According to the respondent, he bonafide needs the petition schedule building for starting a computer and photostat centre. His son is an MBA Graduate and at present, he has no job or avocation to earn his livelihood. He has no other building of his own, to start the proposed business, whereas several other vacant places are available in the locality to shift the revision petitioner's business from the tenanted premises. The revision R.C.R.NO.303/2019 3 petitioner is not depending upon the income from the business from the tenanted premises. That apart, rent was in arrears from 2013 March onwards and he has not paid arrears of rent, despite receipt of statutory notice, under Section 12 B of the Act. Thus, he is entitled to get an order of eviction, under Sections 11(3) and 11(2) (b) of the Act. 3. The revision petitioner resisted the claim for eviction under both provisions, contending that, the need projected is not bonafide. According to him, the respondent is in possession of adjacent vacant room and he can conduct the proposed business in that room. Thus the bonafides of the need is hit by first proviso to Section 11(3) of the Act. He is entitled to get protection under proviso to Section 11(3), as he is depending upon the income from the tenanted R.C.R.NO.303/2019 4 premises and no other vacant building is available in the locality to shift his business. 4. After considering the evidence on record, the courts below concurrently found that the need projected is bonafide; and the revision petitioner is not entitled to get protection, under the second proviso to Section 11(3) of the Act and the claim for eviction is not hit by the first proviso to Section 11(3) of the Act. The legality and correctness of the findings are challenged in this revision petition. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 6. The learned counsel for the revision petitioner advanced the arguments, focusing the findings under the first proviso to Section 11(3) of the Act. According to the learned counsel for the R.C.R.NO.303/2019 5 revision petitioner, the courts below have failed to appreciate the evidence on record, under the first proviso to Section 11(3) of the Act in its correct perspective. It is specifically contended that the respondent has not disclosed the availability of vacant room situated adjacent to the petition schedule shop room in the rent control petition and the non-disclosure of availability of the vacant room in the Rent Control Petition is fatal to the claim for eviction, under Section 11(3) of the Act. It is submitted by the learned counsel for the respondent that the respondent has given special reason, in evidence, for the non-occupation of the vacant room, when the revision petitioner has raised a contention in the counter statement to the effect that the respondent is in possession of the vacant room, situated adjacent to the petition schedule shop room. According to him, the non- R.C.R.NO.303/2019 6 disclosure of the vacant room in his possession, in the Rent Control Petition, is not fatal, if the landlord has given special reason for not occupying the vacant room, in his evidence, during the course of trial. 7. In view of the argument, the point to be considered is whether there is any illegality and impropriety in the concurrent findings of the courts below that the claim for eviction on bonafide need of the respondent is not hit by the first proviso to Section 11(3) of the Act. According to the first proviso to Section 11(3) of the Act, the rent control court shall not give any direction to the tenant to vacate the tenanted premises on bonafide need, if the landlord has another building of his own in his possession in the same city or village. It is trite law that the burden of proof under the first proviso is on the tenant and only R.C.R.NO.303/2019 7 when the tenant satisfactorily discharged the initial burden of proof, the burden will shift to the landlord to give special reasons for non occupation of the vacant building, in his possession. 8. The question to be considered in the above context, is that whether the non-disclosure of the vacant rooms in the possession of the landlord is fatal or not, if the landlord has given special reason for not occupying the vacant building, for the proposed business and the same is satisfactory. 9. Admittedly, the respondent has not disclosed the possession of the vacant room in the rent control petition. We find that the legal proposition to the aforesaid question stands settled by the decisions of this court in **Kunju T.P. v. Fathima and others [2014 (3) KHC 127]** and **Kunhamina K. v. V.K.T. Aboobacker Haji [2016** R.C.R.NO.303/2019 8 ## **KHC 639]** . In 2014 (3) KHC 127 this Court held as follows: “10. It cannot be understood from the first proviso to S.11(3) of the Act that the landlords need to plead the particulars of all the premises under their ownership and possession to claim an order of eviction. The proviso only recites that the Rent Control Court shall not order eviction, if the landlord has another building of his own in his possession, without satisfying the special reasons for not occupying the vacant premises. The function of the proviso is to except something out of the enactment or qualify something enacted, which, but for the proviso, would come within the purview of the enactment. The scope of the first proviso to S.11(3) of the Act. S.11(3) of the Act, confers authority on the Rent Control Court to pass an order, directing the tenant to put the landlord in possession of the building, if he bona fide needs the building for his occupation and the proviso carves out an exception to the authority of the Rent Control Court to order eviction, when the landlord has another building of his own in his possession and there are no special reasons for not occupying the same for the proposed need. A combined R.C.R.NO.303/2019 9 reading of the provision and the proviso would indicate beyond doubt that it is only when it is established that the landlord has another building of his own in his possession for his occupation for the proposed need, he need satisfy the Rent Control Court the special reasons for not occupying the said premises. In other words, to non-suit the landlord, the vacant building should be of such a character, which would meet the requirements of the landlord. Any other interpretation of the proviso would lead to absurdity and cannot be accepted.” ## In 2016 KHC 639, this Court again held as follows: “11. So it is clear from the above dictum that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before Court and he had given special reasons for not occupying the same and both parties have adduced evidence on this aspect understanding the case of each other, then no prejudice will be caused to the tenant on account of the non disclosure of this fact in the rent control petition and it is for the Court to consider the suitability or otherwise of the building so as to deny R.C.R.NO.303/2019 10 eviction on the ground of bonafide need.” 10. On a combined reading of the aforesaid decisions, we find that this Court unequivocally held that the non-disclosure of the availability of vacant room, in the possession of the landlord, in the rent control petition, is not fatal, to the landlord, where the landlord did not disclose the availability of another building in his possession, and the landlord has satisfactorily given special reasons for not occupying the vacant building in his evidence, it is sufficient to discharge the burden of proof which stand shifted to the landlord. We further notice that, in the aforesaid decisions, this Court has relied on the decision of this Court in **Jerry Joseph v. Selvaraj [2002 KLT 129]** and that of the Supreme Court in **M.L.** . **Prabhakar v. Rajiv Singal [2001 (2) SCC 355]** R.C.R.NO.303/2019 11 13. In the instant case, according to PW1, he needs the tenanted room and adjacent vacant rooms to start the proposed computer cum photostat centre. He wants two rooms to accommodate the computer cum photostat centre. Though he was cross-examined, on the aforesaid point, he stood by his requirement for two rooms to accommodate the computer cum photostat centre. Nothing could be brought out to discredit his evidence, on special reasons. The courts below have concurrently placed reliance on the deposition of PW1, the respondent, and found that the respondent has satisfactorily explained the special reasons for not occupying the vacant room, which is situated adjacent to the petition schedule shop room. 14. In the above view, we do not find any reason to take a different view, in the absence of R.C.R.NO.303/2019 12 any material, contrary to the aforesaid finding. No other point has been raised before us, warranting interference of this court under revisional jurisdiction. Hence this revision petition would stand dismissed. Sd/- **K. HARILAL JUDGE** Sd/- **C.S. DIAS JUDGE** ncd/25/11/19