Chetti Parambath Yusaf and Puthiya Purayil Abdul Navas v. Keerampally Sumangala Devi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940 RCRev..No. 272 of 2018 AGAINST THE JUDGMENT DATED 10-07-2018 IN RCA 63/2016 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT-V), KOZHIKODE AGAINST THE ORDER DATED 27-01-2016 IN RCP 153/2013 of RENT CONTROL/ PRL. MUNSIFF-I, KOZHIKODE- ## REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS: 1 CHETTI PARAMBATH YUSAF, AGED 41 YEARS, S/O.AHAMMED KOYA, KUNNATH THAZHAM, KINASSERY POST, POKKUNNU, VALAYANAD AMSOM DESOM, KOZHIKODE. 2 PUTHIYA PURAYIL ABDUL NAVAS, AGED 36 YEARS, S/O.MUHAMMED KOYA, SUBAIDA MANZIL, PADINHARE VATTAKKANDY, PUTHIYANGADY POST, PUTHIYANGADY AMSOM DESOM, KOZHIKODE. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN ## RESPONDENT(S)/RESPONDENT/PETITIONER: KEERAMPALLY SUMANGALA DEVI, AGED 61 YEARS, D/O.KEERAMPALLY RUGMINI AMMA, VARIYATH HOUSE, THIRUVANNUR POST, KANHIRANGAD VILLAGE, MANANTHAVADY TALUK, PUTHIYANGADY AMSOM DESOM, KOZHIKODE - 673 021. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K. HARILAL & ANNIE JOHN, JJ.** **------------------------------------------R.C.R No. 272 of 2018 -----------------------------------------Dated this the 7[th] day of August, 2018.** ## **ORDER** ## K. Harilal,J. The legality and correctness of the concurrent findings of the courts below granting an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short) are challenged in this revision. 2. The respondent herein filed RCP No. 153 of 2013 before the Rent Control Court, Kozhikode seeking an order of eviction under Section 11(3) of the Act. According to the respondent/landlord, his elder son is a deaf person and he is working as a Graphic Designer in a studio by name 'National Studio' at Kozhikode and he wants to start a photo studio of his own in the petition schedule shop room. Neither the respondent/landlord nor the dependent has any other vacant buildings of their own to start the said studio. Thus, the son of the respondent is depending on her for the petition schedule shop room. The petition schedule shop room is situated in an important part of the Kozhikode city i.e., very near to the SM Street and Melepalayam road. Therefore, the petition schedule shop room is suitable for starting the photo studio for her son. RCR No.272/2018 -2- 3. The revision petitioners/tenants resisted the said claim for eviction contending that the need projected in the petition is not _bona fide._ According to the them, the petition schedule shop room is situated far away from the road and it is not suitable for a photo studio. The need projected in the petition is a ruse for eviction only. If the respondent wants to start a studio for her son, she can start the said photo studio in other rooms in her possession. According to the revision petitioners, they are depending mainly on the income derived from the business carried on in the petition schedule building and no other vacant buildings are available in the locality. That apart, they had paid Rs.10 lakhs to the respondent as 'pakidi' and spent a huge amount for furnishing the room and also for purchasing the furniture. Therefore, if the order of eviction is passed, they will be put to irreparable injury and great hardship. 4. On the rival pleadings, both sides adduced evidence and after considering the evidence on record, the Rent Control Court found that the need projected in the petition is _bona fide_ and the revision petitioners/tenants are not entitled to get protection under the second proviso to Section 11(3) of the Act. In the appeal, the appellate authority also confirmed the aforesaid findings as such and dismissed the appeal. RCR No.272/2018 -3- 5. Heard the learned counsel for the revision petitioners. 6. Needless to say that the scope and extent of consideration in this appeal are confined to the legality, propriety and irregularity of the findings of the courts below only and there is no scope for reappreciation of the entire evidence on record, unless the findings are perverse and vitiated by non-consideration of material evidence. The sum and substance of the arguments advanced by the learned counsel for the revision petitioners is that the courts below have not appreciated the evidence on record in its correct perspective. 7. Going by the impugned judgment passed by the appellate authority, it could be seen that in order to prove the _bona fides_ of the need, the respondent/landlord was examined as PW1 and she has sworn to a proof affidavit in tune with the averments in the petition and disclosing the _bona fides_ of the need. Nothing has been brought out in the cross examination to make her evidence unbelievable or untrustworthy. In order to corroborate the evidence of PW1, the dependent for whose need the petition schedule shop room was required was examined as PW2. Even though he is a deaf person, he was examined through an Interpreter and the Rent Control Court specifically observed that he has spoken through the Interpreter in a way expressing his dire need for the petition schedule shop room for RCR No.272/2018 -4- starting a studio of his own and nothing had been brought out in the cross examination to discredit his evidence. In order to prove his expertise in photography, Exts.A5 and A6 were produced and the same would prove that PW2 has sufficient experience and expertise in photography and he is working as a photographer. Therefore, there is no circumstance to suspect his desire to start a photo studio of his own. Thus, the courts below are justified in finding that the need projected in the petition is _bona fide._ 8. Coming to the provisos, it is needless to say that both the limbs of second proviso are conjunctive and the burden of proof is on the tenant. As regards the first proviso, though the revision petitioners/tenants have contended that the respondent has other buildings, no material has been brought out in evidence to prove the said contention. The initial burden is on the tenant. But the revision petitioners have failed to discharge the initial burden of proof under the first proviso. So, the next question is whether the revision petitioners/tenants have succeeded in discharging the burden of proof under the second proviso. Absolutely, no evidence was adduced by the revision petitioners to discharge the burden of proof under the second proviso also. In _**Shahul Hameed A v. P E Abdu Rasak**_ [2016(5) KHC 820], this Court held that a tenant who is hiding his RCR No.272/2018 -5- income is not entitled to get protection under the first limb of the second proviso also. No steps have been taken to prove that no other vacant buildings are available in the locality to shift his business. Thus, he has failed to discharge the burden of proof under the second proviso also. There is no illegality or impropriety in the concurrent findings whereby the courts below granted the order of eviction under Section 11(3) of the Act. Accordingly this RCR is dismissed. 9. However, the learned counsel for the revision petitioners seeks on year time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioners are given six months' time from today to vacate the tenanted premises on the following conditions: 1. The revision petitioners shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of a copy of this order and shall continue to pay rent without default. 2. The revision petitioners shall file an affidavit expressing an undertaking that they are ready and willing to vacate the tenanted premises within a period of six months from today. 3. The affidavit shall be filed before the Executing Court within a period of two weeks from the date of receipt of a copy of this order. RCR No.272/2018 -6- In case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. **K. HARILAL, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_ RCR No.272/2018 -7-