CHELIPPARAMBIL VARGHESE v. PALLIYAL MARIYAM and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939** **RCRev..No. 57 of 2015 (D) -------------------------** **RCA 11/2011 of RENT CONTROL APPELLATE AUTHORITY/I ADDL. DISTRICT COURT , KALPETTA, WAYANAD RCP 12/2010 of RENT CONTROL COURT/MUNSIFF COURT, KALPETTA** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **--------------------------------------------** ## **CHELIPPARAMBIL VARGHESE** **S/O.LUKOSE, CHELIPPARAMBIL HOUSE, NEAR CO-OPERATIVE BANK BUILDING, KERALA STATE HOUSING BOARD COLONY, THRISSUR DISTRICT.** **BY ADVS.SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SMT.BINDU SREEDHAR SMT.R.S.MANJULA** ## **RESPONDENT(S)/RESPONDENTS /PETITIONERS:** **---------------------------------------** **1. PALLIYAL MARIYAM, AGED 49 YEARS, W/O.LATE ARAKKAL KUTTIYALI, MUTTIL SOUTH VILLAGE, KAKKAVAYAL, VYTHIRI TALUK, WAYANAD DISTRICT-673 576.** ## **2. ARAKKAL ASHKAR,AGED 30 YEARS,** - **S/O.LATE ARAKKAL KUTTIYALI, MUTTIL SOUTH VILLAGE, KAKKAVAYAL, VYTHIRI TALUK, WAYANAD DISTRICT-673 576.** **3. ASHMITHA,AGED 28 YEARS,** - **D/O.LATE ARAKKAL KUTTIYALI, MUTTIL SOUTH VILLAGE, KAKKAVAYAL, VYTHIRI TALUK, WAYANAD DISTRICT-673 576.** **4. ASHNAF,AGED 23 YEARS, S/O.LATE ARAKKAL KUTTIYALI, MUTTIL SOUTH VILLAGE, KAKKAVAYAL, VYTHIRI TALUK, WAYANAD DISTRICT-673 576.** **R1 BY ADV. SRI.C.P.MOHAMMED NIAS** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**OKB**_ **==> picture [203 x 12] intentionally omitted <==** --------------------------R.C.R. No.57 of 2015 --------------------------Dated this the 10[th] day of November, 2017 ## O R D E R ## **Harilal, J.** The revision petitioner is the tenant who suffered an order of eviction passed under section 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”), which stands confirmed in appeal. The parties are referred to as in the Rent Control Petition. 2. According to the petitioners, the second petitioner has no permanent job or income. He is presently engaged in helping a close relative,who is running a hospital at Sulthan Bathery. The petition schedule building is required for starting a gents' ready-made shop for the second petitioner. The petitioners have no other buildings of their own in their possession for starting the proposed business. The respondent is not conducting any business in the petition schedule building and he has transferred the RCR.57/15 **:2:** possession of the petition schedule building to some other persons by name Lincoln Leo Thomas, Shinoj Varghese, Jainee Stanley and Siji Shinoj and now they are conducting business in the petition schedule building, without the consent of the petitioners. Several other vacant buildings are available in the locality for shifting the business from the tenanted premises. 3. The respondent resisted the said contention contending that the need is not bona fide and the second petitioner is running a hospital, by name Victory Hospital, along with his relative Dr. Moideen and obtaining substantial income from it. The second petitioner has no experience in conducting ready-made business. They have several landed properties and buildings in different parts of Kalpetta Town and Waynad District. He denied the allegation that he is not conducting business and not depending on the income derived from the tenanted premises. Further, it is admitted that the persons mentioned in the petition are in possession of the tenanted premises; but they are partners of the firm by name RCR.57/15 **:3:** Wayanad Engineers. The petition schedule building has not been transferred to any third party as alleged in the Rent Control Petition. 4. On the aforesaid rival pleadings, both parties adduced evidence and after considering the evidence on record the courts below found that the need projected is bona fide and the respondent is not entitled to get protection under the second proviso to section 11(3) of the Act and thereby the petitioners are entitled to get an order of eviction under section 11(3). So also, it was found that the petitioners are entitled to get an order of eviction under section 11(4)(i) of the Act, as they have succeeded in proving that the respondent has transferred the possession of the tenanted premises to the persons specifically mentioned in the Rent Control Petition. The legality and propriety of the aforesaid concurrent findings are challenged in this revision. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 6. The learned counsel for the petitioners advanced RCR.57/15 **:4:** arguments contending that the courts below went wrong by finding that the need projected is bona fide. According to the respondent, the second petitioner has so many other sources of income for his livelihood and there is no need to start a new business for his livelihood. He is running the hospital by name Victoria Hospital and he is getting sufficient income from the landed properties. But the courts below have failed to consider the aforesaid evidence on record in its correct perspective. 7. Per contra, the learned counsel for the respondent advanced arguments to justify the concurrent findings of the courts below under sections 11(3) and 11(4)(i) of the Act. 8. First of all, we must remind ourselves of the contours of revisional jurisdiction under section 20 of the Act. The scope and extent of interference with the concurrent findings of the courts below are confined to legality, propriety and regularity of the findings of the courts below. This Court is not inclined to take a different view unless concurrent findings of the courts below are RCR.57/15 **:5:** perverse. Bearing the above view in our minds, we have meticulously scrutinised the legality and propriety of the concurrent findings of the courts below under section 11(3) and 11(4)(i) of the Act. 9. The sum and substance of the arguments raised by the learned counsel for the revision petitioner is that the 2[nd] petitioner is running a hospital by name Victoria Hospital and he has other sources of income and he has no previous experience in conducting ready-made garments business. 10. Going by the concurrent findings, it is seen that the courts below have rejected the aforesaid contentions relying on the decision of the Supreme Court in **Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta** [(1999) 6 SCC 222] and **P.I.Abdul Rub v. Jobby Tharian** [2003 (2) KLJ 1035. In the aforesaid decisions, the Supreme Court held that law does not require 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. Law does not insist that a landlord having RCR.57/15 **:6:** other sources of income shall not carry on other income earning activity or venture to start a new trade or business.” In view of the above decisions, it cannot be held that even if the second petitioner is employed or he has other sources of income, those factors will not negative his claim for eviction under section 11(3) of the Act. On the other hand, the second petitioner was examined as PW1 and he has testified the bona fides of his need and nothing brought out to discredit his evidence in cross-examination and the courts below concurrently placed reliance on the evidence of PW1. In the above analysis, we find that there is no reason to interfere with the concurrent findings of the courts below that the need projected is bona fide. 11. Coming to the proviso to section 11(3) of the Act, even though the respondent has contended that the petitioners have other buildings of their own in their possession, no evidence has been adduced to substantiate the said contention. Therefore the courts below are justified in finding that the claim for eviction under section 11(3) is not hit by the first proviso. RCR.57/15 **:7:** 12. As regards the second proviso, it is trite law that the burden of proof is on the tenant. No evidence has been adduced to prove that he is mainly depending on the income from the tenanted premises. That apart, more importantly, we find that the respondent has stayed away from entering into the witness box to prove the pleadings in the counter statement, and no evidence other than Ext.B1 was produced to substantiate his contention. In the absence of evidence the courts below are justified in finding that the respondent has not discharged the burden of proof under the first limb of the second proviso. 13. As regards the non-availability of alternative buildings, no evidence was adduced by the respondent to substantiate his contention. On the other hand, Exts.A4 to A6 are filed to show that vacant buildings are available in the locality. Even though the respondent has produced Ext.B1 certificate to prove that the rooms mentioned in Exts.A4 to A6 are occupied by the tenant, Ext.B1 itself shows that those rooms were let out after the filing of the Rent Control Petition. It is needless to say, those rooms RCR.57/15 **:8:** were available as vacant rooms at the time of filing the Rent Control Petition. Thus, as rightly held by the courts below we find that the respondent has miserably failed to discharge the burden of proof under the second proviso to section 11(3) of the Act also. 14. Coming to the order of eviction under section 11 (4)(i) of the Act, in the counter statement itself, the respondent has admitted that the persons referred to as transferees of the petition schedule building in the Rent Control Petition are his partners and they are jointly conducting “Wayanad Engineers” in the tenanted premises. But coming to the evidence, no evidence was adduced to prove that the persons referred to in the Rent Control Petition as transferees are his partners and they are jointly conducting Wayanad Engineers under a partnership deed. Thus, the respondent himself admitted the occupation of the tenanted premises by the transferees whose names are specifically mentioned in the Rent Control Petition. In view of the aforesaid admission from the part of the respondent he should have produced the partnership deed under which RCR.57/15 **:9:** they are jointly occupying the tenanted premises as partners. But the said partnership deed was not produced in evidence. In the absence of partnership deed an adverse inference also can be drawn against the respondent under section 114(g) of the Evidence Act. Thus, the respondent failed to discharge the onus of proof under section 11(4)(i) of the Act also. Thus it has come out in evidence that the building is now occupied by strangers whose names are specifically mentioned in the Rent Control Petition. In the above view, the courts below are justified in granting an order of eviction under section 11(4)(i) of the Act also. We do not find any kind of illegality or impropriety to interfere with the concurrent findings of the courts below. Consequently, this revision fails. It is dismissed accordingly. **Sd/-** (K.HARILAL, JUDGE) **Sd/-** (A.M.BABU, JUDGE) okb.