C.H. Unila v. Thuruthiyakath Mukundan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939** **R.C.Rev.No. 334 of 2017** **--------------------------** **R.C.A.NO.49/2014 of ADDL. DISTRICT COURT - III, THALASSERY DATED 07-04-2017** **R.C.P.NO.275/2012 of PRL.MUNSIFF COURT, KANNUR, DATED 18-12-2013** **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **----------------------------------------------------------------------------** **C.H.UNILA, D/O. KUNHIRAMAN, BUILDING NO.181,WARD NO. VII, PAPPINISSRY GRAMA PANCHAYAT, P.O.PAPPINISSERY, KEECHERI, KANNUR TALUK, KANNUR DISTRICT** **BY ADVS.SRI.P.U.SHAILAJAN SRI.M.SURESH KUMAR SMT.D.N.NISHANI SRI.V.SREEJITH (K/1398/2000) SMT.VIDYA KURIAKOSE** **RESPONDENT(S)/RESPONDENT/PETITIONER:** **------------------------------------------------------------------** **THURUTHIYAKATH MUKUNDAN, S/O. RAMUNNI, RESIDING AT THURUTHIYAKATH HOUSE, KEECHERI, P.O.PAPPINISSERY, KANNUR DISTRICT, PIN 670 561** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 1310-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Bb** ## **K.HARILAL & A.M.BABU, JJ.** ## **-----------------------------R.C.R.No.334 of 2017 --------------------------------Dated this, the 13[th] day of October, 2017.** ## **O R D E R** ## A.M.BABU,J. Eviction of tenant was sought under section 11(2)(b) and (3) of the Kerala Buildings (Lease and Rent Control) Act (for short, the Act). The ground under section 11(2) (b) was withdrawn pending the proceedings. The rent control court allowed eviction under section 11(3). The appellate authority confirmed it. The tenant is in revision. 2. The parties are referred to in this order as landlord and tenant or as they are arrayed in the rent control petition. 3. The case of the landlord/petitioner is summarised as follows: He has a daughter by name Beena. She is without any job and income. Therefore she has been wanting to start a business in stationary and fancy goods in the petition schedule room. The said R.C.R.No.334 of 2017 : 2 : room is suitable for conducting such a business. The petitioner has no vacant building in his possession in order to accommodate his daughter. The need is bona fide. The tenant is not depending on the income from her business run in the petition schedule room. She has other sources of income. Suitable buildings are available in the locality for her to shift her business. 4. The respondent/tenant raised the following contentions: The landlord's daughter Beena is a house wife. She never had thought of doing any business. She resides with her husband far away from the petition schedule room. Her husband is a businessman abroad. Beena used to visit the gulf country where her husband is doing business. She is not at all depending on her father. She is not able to do any business. Herself and her husband are well off. Therefore the former does not at all need to do any business. The petitioner possesses vacant rooms where he can accommodate his daughter. The respondent is wholly depending upon the income derived from the business run by her in the tenanted premises. R.C.R.No.334 of 2017 : 3 : No vacant room is available in the locality for her to shift her business. 5. The landlord filed two rent control petitions to evict two tenants under section 11(3) of the Act. The rent control court consolidated those two petitions for trial. PW1 was examined and Exts A1 to A7 were marked on the side of the landlord. RWs 1 and 2 were examined on the side of the other tenant. RW3 was examined and Exts B1 to B6 were marked on the side of the revision petitioner/tenant. Ext C1 report of the commissioner was also marked. 6. The rent control court and the appellate authority concurrently found the need of the landlord to be bona fide. The findings of those courts on the first two provisos to section 11(3) of the Act also went in favour of the landlord. 7. We heard Shri.P.U.Shailajan, the learned counsel for the tenant. 8. The need set up by the landlord is to accommodate his daughter by name Beena in the petition R.C.R.No.334 of 2017 : 4 : schedule premises so as to enable her to do business in stationary and fancy goods. There is no suggestion or evidence that Beena has her own building where she could do the proposed business. Therefore she is certainly a person depending upon her father for accommodation. 9. The findings on all aspects by the rent control court and the appellate authority have been concurrent. When findings are concurrent, the scope of interference in revision is less, if not nil, unless a perversity, illegality or impropriety is felt. 10. PW1 is Beena herself. She testified that she had been wanting to do a business. Admittedly she is not involved in any income generating activity. Even according to the tenant, Beena is only a home maker. Her wealth, her husband's employment abroad et cetera do not at all stand in the way of her doing a business for an income. PW1 asserted in the witness box that she would start a business as proposed. She was crossexamined. The cross-examination produced no result R.C.R.No.334 of 2017 : 5 : favourable to the tenant. The tenant cannot contend that for her safety the daughter of the landlord should sit idle. Her stay 8 kms away from the tenanted room is certainly not a ground to suspect the bona fides. It is not an impossibility for Beena to commute between the place of her residence and the place where the petition schedule room is situated. A distance of 8 kms is hardly a distance. The fact that PW1 has no experience in business is not sufficient to suspect the bona fides. All these matters have been considered well by the appellate authority. There is little scope for interference. We confirm the concurrent findings of the courts below that the need of the landlord to accommodate his daughter to do business in stationary and fancy goods is indeed bona fide. 11. We shall move on to the first proviso to section 11(3) of the Act. Admittedly, at the time of institution of the petition no vacant building was possessed by the landlord. It has come out in evidence that pending the rent control proceedings another tenant of the landlord was evicted. It is also in evidence that the said tenant R.C.R.No.334 of 2017 : 6 : was evicted in order to accommodate another daughter of the landlord to do business. The first proviso to section 11(3) is therefore not attracted. 12. What next is the second proviso to section 11(3) of the Act. That proviso has two limbs. The second limb has been found by both the courts below in favour of the tenant. It was found that no suitable building was available in the locality for the tenant to shift her business. We leave it there. 13. The finding on the first limb of the second proviso to section 11(3) of the Act has been in favour of the landlord. What the tenant does in the tenanted premises is a business in bakery and stationary goods. She contends that the income therefrom is her sole source of income for her livelihood. It is for her to prove it. She did not produce any document to prove her income. She did not even orally discloses her income. She did not produce any account books to prove the income generated from the business run by her. What appears to us is that the tenant did not seriously R.C.R.No.334 of 2017 : 7 : prosecute her contention to take shelter under limb 1 of proviso 2. 14. The learned appellate authority has relied on the decision in **Shahul Hameed A. v. P.E.Abdu Razak [2016 (5) KHC 820]** . The decision holds that no tenant can contend for protection under the second proviso hiding his income. What is the scope of enquiry under the first limb of the second proviso is also considered in the said decision. The relevant portion of the said decision has been extracted by the learned appellate authority. We are in agreement with the learned appellate authority that the tenant failed to prove herself to be depending mainly on the income generated from the business run in the tenanted premises for her livelihood. 15. The tenant who lost in the rent control court as well as the appellate authority should lose in revision too. We find no merit in the revision. It deserves only a dismissal. 16. At this juncture the learned counsel for the tenant requested for a breathing time for his client to R.C.R.No.334 of 2017 : 8 : vacate the premises. The learned counsel requests for a period of one year. The time requested for is too long. Therefore we are not inclined to grant that much time to the tenant. But we consider the fact that the second limb of the second proviso to section 11(3) was decided in favour of the tenant. That means suitable alternative accommodation is not available in the locality. The tenant, therefore, may need sometime to find out a suitable building in the same locality or in a different locality. Therefore we are inclined to grant a period of 8 months from today. The time we grant shall be subject to the conditions we impose. 17. The revision is dismissed. Despite the dismissal of the revision we grant a period of 8 months from today to the tenant to vacate the premises. Time is granted subject to the following conditions: The tenant shall file an affidavit before the rent control court within a period of 15 days from today unconditionally undertaking to vacate the premises within a period of 8 months from today. The arrears of rent, if any, shall be cleared within R.C.R.No.334 of 2017 : 9 : a period of one month from today. Rent in future till the date of vacating the premises shall be paid promptly on or before the due date. Sd/- **K.HARILAL, JUDGE** Sd/- **A.M.BABU, JUDGE** Bb/17/10/2017 _[True copy]_ _P.A to Judge_