Chandran v. Thankamma Baby

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **RCRev..No.152 OF 2020** **AGAINST THE ORDER/JUDGMENT IN RCA 19/2017 DATED 01-06-2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, KALPETTA** **AGAINST THE ORDER/JUDGMENT IN RCP 4/2016 DATED 19-09-2017 OF MUNSIFF MAGISTRATE, SULTHAN BATHERI** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **CHANDRAN AGED 64 YEARS S/O CHATHUKUTTY NAIR, PANKAJA METALS, PULPALLY POST AND VILLAGE, SULTHAN BATHERY, RESIDING AT CHANDROTH HOUSE, KALANDIKOLLY POST, PULPALLY VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT-673 579** **BY ADVS. SRI.P.G.GOKULNATH SRI.SANTHARAM.P** RCR No.152/20 ## **-:2:-** **SMT.REKHA ARAVIND SRI.PAUL P. ABRAHAM** ## **RESPONDENT/RESPONDENT/PETITIONER:** **THANKAMMA BABY AGED 48 YEARS W/O LATE BABY, MAPPANADIYIL HOUSE, EDAMALA, MULLENKOLLY POST, PADICHIRA VILLAGE, SULTHAN BATHERY TALUK, WAYANAD-673 579.** ## **ADV.SARITHA THOMAS CAVEATOR** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-:3:-** RCR No.152/20 ## **JUDGMENT** Dated this the 17[th] day of September 2020 ## **Bechu Kurian Thomas, J.** The revision petitioner is the tenant. He challenged the order in R.C.A.No.19/2017 on the files of the Rent Control Appellate Authority, Kalpetta contending that the order is contrary to the evidence and that the absence of bonafide need was not appreciated by the courts below. According to the revision petitioner, the availability of other rooms, in the same building and the failure to state the special reasons required under 1[st] proviso to Section 11(3) of the Kerala Building Lease and Rent Control Act, 1965 [hereinafter referred to as 'the Act'] ought to have resulted in the dismissal of the rent control petition itself and the findings recorded by both the Rent Controller as well as the Appellate Authority are erroneous and are liable to be set aside. 2. The genesis of the dispute between the parties is based RCR No.152/20 ## **-:4:-** on a lease made in 1983 with a monthly rent of Rs.60/- which was subsequently enhanced to Rs.625/- on 01.11.1986. The landlord filed R.C.P. No. 4/2016 before the Rent Control Court, Sulthan Bathery, alleging that the tenant defaulted in the payment of rent from 01.11.1986 and an amount of Rs.2,17,500/- is in arrears towards the rent and also that she requires the building under section 11(3) of the Act. It was pleaded that the scheduled building is suitable for a textile business, since after the death of landlord's husband, who was the sole breadwinner of the family, the responsibility of taking care of the family fell upon her shoulders. She pleaded further that the adjacent room though belonged to her mother-in-law, she had agreed to give possession of that room also for the proposed textile business. She also stated that there are other vacant rooms in the locality, which the tenant could shift to and that the tenant is not depending upon the business, for his livelihood. After the statutory notice, R.C.P. No.4/2016 was filed before the Rent Control Court, Sultan Batheri. 3. The tenant in his objection stated that the building was taken on lease from a person by name Annakkutty and he paid RCR No.152/20 ## **-:5:-** the rent up to October, 2015 to the said Annakkutty. It was also pleaded that the landlord had illegally locked the tenant from three rooms in 2015 and filed the eviction petition thereafter and that there are no bonafides in the claim put forth. According to him, he depends on the business in the scheduled building for his livelihood and also that he does not have any other buildings to house his business. He also contended that the landlord has more than 30 acres and that the need projected is only a pretext for evicting the tenant. He denied the existence of any arrears of rent. 4. In order to prove the case of the landlord, PWs 1 and 2 were examined through whom Exts.A1 to A7 were marked while the tenant adduced evidence through RW1 and RW2 and marked Exts.B1 and B2. Exts.X1 and X2 were marked by the court. 5. After assessing the facts and circumstances of the case and evidence adduced, the Rent Controller passed an order dated 19.09.2017 directing eviction of the tenant on the ground of arrears of rent under Section 11(2)(b) and bonafide need under section 11(3) of the Act. 6. Challenging the judgment of the Rent Controller, the RCR No.152/20 ## **-:6:-** tenant preferred an appeal as R.C.A. No.19/2017. However, the Appellate Authority partly allowed the appeal by setting aside the eviction under section 11(2)(b) of the Act and confirmed the findings of eviction under section 11(3) of the Act. Aggrieved by the judgment of the Appellate Authority, the tenant has preferred this revision. 7. We have heard Adv.Santharam P., the learned counsel for the revision petitioner as well as Adv.Saritha Thomas, the learned counsel for the Caveator. 8. The learned counsel for the revision petitioner Sri. Santharam.P., vehemently contends that the Rent Control Appellate Authority, as well as Rent Control Court, went wrong in finding that the need projected by the landlord was bonafide and that there were other buildings in the locality for the tenant to shift his business. According to the learned counsel, the courts ought to have found that the claim was one under section 11(8) and not under section 11(3) of the Act and also that the inexperience in conducting textile business ought to have revealed the true nature of the claim put forth by the landlord. It was further argued that the claim was only a ruse to evict the RCR No.152/20 ## **-:7:-** tenant from the building. 9. The learned counsel for the respondent Adv. Saritha Thomas argued that the two courts had already found that the claim put forth by the landlord was bonafide and also that there were other buildings in the locality for the tenant to shift his business and hence eviction ordered under section 11(3) of the Act was perfectly justified. 10. It is true that there is no previous experience for the landlord in conducting a textile business. Much importance is being attempted to be given by learned counsel for the revision petitioner to the ground of said lack of experience for the landlord. It is a settled principle of law that in deciding the claim for the bonafide requirement of a building, the previous experience in conducting a particular trade or business is not a material requirement. What the provision contemplates is that the need put forth must be bonafide. Experience in business is not a prerequisite for commencing a business. Perhaps inexperience can lead to difficult beginnings. That is not a reason to doubt the bonafides of the claim put forth. In the absence of any reason to doubt the bonafides of the need put forth by the RCR No.152/20 ## **-:8:-** landlord and since the same was found in favour of the landlord by the rent control court as well as the appellate authority, we find no reason to upset the said findings, especially in the revisional jurisdiction. 11. The appellate court found that the tenant had not pointed out in his evidence that there is any vacant building in the possession of the landlord for the purpose of attracting the first proviso to section 11(3) of the Act. Even though sufficient opportunity was available with the tenant to discharge his burden under first proviso to section 11(3) of the Act, the tenant was not able to show that there was any vacant building available with the landlord so as to deny the claim of bonafide need under section 11(3) to the landlord. In fact, the tenant has not mentioned in his evidence anything regarding availability of buildings in the possession of the landlord. It is useful to refer to the recent decision in **Vasantha Mallan v. Aboobacker Siddique** (2020 (3) KLT 224). In the said decision it was held: _“19. In view of the binding decision in M.L. Prabhakar's case (cited supra) of the Hon'ble Supreme Court, the conflicting observation expressed in Bhargavi Amma's case (cited supra) cannot survive and operate as a binding precedent. We, therefore, hold that it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his_ RCR No.152/20 ## **-:9:-** _possession. The non disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act._ _20. We make it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleading. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for non occupation of the premises for his alleged needs. This may give an opportunity to the tenant to meet early in advance the case of the landlord that the buildings in his possession are not adequate enough to fulfill his needs. Once the materials placed on record adequately explain the special reason for not occupying the buildings available with the landlord and parties on both sides had sufficient opportunity of understanding their respective cases each other and also adducing evidence, there is no warrant for the tenant to complain that he was prejudiced by non disclosure of relevant matters in the pleadings of the landlord.”_ In the above circumstances, We do not find any reason to interfere with the finding of Appellate Authority regarding the first proviso to section 11(3) of the Act. 12. The benefit of second proviso to section 11(3) of the Act is available to the tenant to stifle the claim of the landlord for eviction under the ground of bonafide need. However, the burden to prove both the limbs of second proviso to section 11(3) of the Act is upon the tenant. There is no evidence to show that the RCR No.152/20 ## **-:10:-** tenant is depending upon the income from the building for his livelihood, nor is there any pleading or even evidence to show that there are no buildings available in the locality for the tenant to shift his business. In such circumstances, there is no reason to interfere with the findings of the appellate authority as well as rent controller under the second proviso to section 11(3) of the Act. 13. The concomitant result of the aforesaid conclusions is that there are no reasons to interfere with the judgment impugned. 14. Faced with the possibility of immediate eviction, the learned counsel for the revision petitioner seeks a breathing time for the tenant to vacate the building and requests for a period of 12 months for vacating. We are not inclined to grant such a long period. However in the facts and circumstances of the case, we deem it appropriate to grant a period of 6 months time from today, to the tenant, to vacate the building, on condition that the tenant files an undertaking within two weeks from today, before the Rent Control Court, that he shall vacate the building within the period as aforesaid. On failure to file such an undertaking, RCR No.152/20 ## **-:11:-** the benefit as aforesaid, shall not be available to the tenant. In view of the above, this Revision petition is dismissed. **Sd/-** **S.V.BHATTI** **JUDGE** **Sd/-** **BECHU KURIAN THOMAS** **JUDGE** JS/RKM