Chirakkuzhiyil Joseph v. M. Moosa Haji

**RCRev.No.241 OF 2019** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** **RCRev..No.241 OF 2019** **AGAINST THE JUDGMENT IN RCA 3/2015 DATED 11-06-2018 OF DISTRICT COURT,KALPETTA** **AGAINST THE ORDER IN RCP 11/2013 DATED 27-10-2014 OF MUNSIFF MAGISTRATE COURT, SULTHAN BATHERI** **- APPELLANT IN R.C.A RESPONDENT IN R.C.P:** **CHIRAKKUZHIYIL JOSEPH AGED 59 YEARS S/O. VARGHESE, FOAM LAND, ALPHA TOURIST HOME BUILDING, S. BATHERY AMSOM DESOM AND TALUK, WAYANAD DISTRICT-673 592 BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** ## **- RESPONDENT IN R.C.A PETITIONER IN R.C.P:** **M.MOOSA HAJI, AGED 79 YEARS, S/O. AVARAN, ALPHA TOURIST HOME BUILDING, KOTTAKUNNU, SULTHAN BATHERY AMSOM DESOM AND TALUK, WAYANAD DISTRICT-673 592.** **R1 BY ADV. SRI.P.U.SHAILAJAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-02-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev.No.241 OF 2019** **2** ## ORDER ## Dias,J. The revision petitioner was the appellant in RCA No.3/2015 on the file of the Rent Control Appellate Authority (in short “Appellate Authority”), Kalpetta. The respondent in this revision petition was the respondent in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Sulthan Bathery, in RCP No.11/2013. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition ( RCP) as 'petitioner' and 'respondent'. 3. The petitioner had filed the RCP against the respondent, inter alia, pleading as follows: A building complex named Alpha Tourist Home was managed by a partnership firm. The firm was **RCRev.No.241 OF 2019** **3** dissolved on 31.8.2009. Consequently, the petitioner became the landlord of the building complex. As the respondent had kept the rent in arrears and as the petitioner needed the petition schedule shop room(for brevity hereinafter referred to as 'shop room') for the bona fide need of his younger son, who is depending on him, to start a business in electronics, the petitioner sought eviction of the respondent under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'Act'). 4. The RCP was resisted by the respondent, who filed a counter statement, inter alia, pleading as follows: The petitioner is not the landlord of the shop room. The partnership firm is not dissolved. The petitioner has no locus standi to file the RCP. The respondent is entitled for permanent tenancy. The RCP is hit by partial eviction, which is not permissible in law. Hence the RCP may be **RCRev.No.241 OF 2019** **4** dismissed. 5. The petitioner and his son were examined as PW1 and PW2 and Exts.A1 to A16 were marked on their side. The respondent did not adduce any oral evidence. He produced and marked Exts.B1 to B11 on his side. 6. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the shop room under Section 11(2)(b) of the Act. The order of eviction under Section 11(2)(b) was subject to Section 11(2)(c) of the Act. The respondent was directed to surrender vacant possession of the shop room within two months from the date of order. 7. Aggrieved by the impugned order passed by the Rent Control Court, the respondent preferred RCA No.3/2015 before the Appellate Authority. The Appellate Authority by the impugned **RCRev.No.241 OF 2019** **5** judgment dated 11.6.2018 dismissed the appeal, confirming the order of eviction passed by the Rent Control Court. During the course of the hearing of the appeal, it was admitted by both sides that the entire arrears of rent had been discharged by the respondent. Therefore, the petitioner did not press for an order of eviction under Section 11(2)(b) of the Act. Hence only the legality of the order of eviction under Section 11 (3) of the Act was examined and decided. 8. It is challenging the judgment passed by the Appellate Authority in RCA 3/2015 and the order passed by the Rent Control Court in RCP 11/2013 that this Rent Control Revision is filed. 9. Heard Sri.P.B.Krishnan, the learned counsel for the revision petitioner. 10. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner **RCRev.No.241 OF 2019** **6** from the shop room under Section 11(3) of the Act. According to him, the petitioner has not proved his bona fide need. The courts below have erroneously analysed the pleadings and evidence and come to the wrongful conclusion that the petitioner is entitled for an order of eviction under Section 11(3) of the Act. It was also argued that the courts below have not given protection of the first and second proviso to Section 11(3) of the Act to the respondent. He therefore prayed that the revision petition be allowed and the concurrent findings of the courts below be set aside. 11. The learned counsel for the revision petitioner confined his arguments to the order of eviction passed under Section 11(3) of the Act, and conceded that the contention with respect to the denial of title of the petitioner was not being pressed for consideration. 12. Therefore, the sole question that arises **RCRev.No.241 OF 2019** **7** for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below ordering eviction of the respondent under Section 11 (3) of the Act. 13. It is trite law that this Court while exercising its revisional jurisdiction under Section 20 of the Act is not bound to re-appreciate the entire pleadings and evidence on record. This Court is only expected to examine the legality and correctness of the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings as well as the oral testimonies of PW1 and PW2 and Exts.A1 to A16 and B1 to B11. 14. **The cardinal flaw in the defence set up by the respondent is that he has not mounted the box and given evidence** . In a rent control petition where the tenant denies the title of **RCRev.No.241 OF 2019** **8** the landlord and also takes a defence that the landlord is not entitled for an order of eviction on the ground of bona fide need, it was rudimentary that the respondent mounts the witness box and given evidence to prove his defence. In view of the reluctance/refusal of the respondent to adduce evidence, other than for producing certain documents, the evidence of the petitioner is to be accepted in its entirety. 15. The Hon'ble Supreme Court in Vidhyadhar v. Mankikrao [AIR 1999 SC 1441] has declared that where a party refuses to mount the box, it gives rise to inference adverse to him. 16. 16. Drawing the above presumption of law under Section 114 of the Evidence Act, we are constrained to hold that adverse inference is to be drawn against the respondent and that he has miserably failed to prove his defence pleaded in the counter statement. Though he had produced **RCRev.No.241 OF 2019** **9** Exts.B1 to B11, we find that only Exts. B2, B3 and B11 were certified copies of the judgment and decree in previous litigation between the parties, and can be admitted in evidence. Other than for the above documents, the other documents are not corroborated. Hence they cannot be taken on its face value. On the above finding, the revision petition is liable to be dismissed, confirming the concurrent findings of the courts below. 17. The petitioner had filed the RCP on the ground that he bona fide needed the shop room for his son to start a business in electronics. The petitioner as well as his son were examined as PW1 and PW2. They have given evidence in tune with the averments in the RCP. In addition to their oral testimonies, Exts.A1 to A16 were produced and proved in evidence. According to PW1 and PW2, PW2 was employed in Gulf. He has previous experience in doing business. He is presently **RCRev.No.241 OF 2019** **10** unemployed, and therefore, he is desirous of **.** starting the above-said business 18. It is settled law in Deep Chandra Juneja v Lajwanti Kathuria [ AIR 2008 SC 3095] that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the need put forward by the landlord is genuine or not, and that the need projected is not a ruse for eviction. 19. The Supreme Court in Sarla Ahuja vs United India Insurance Company Ltd [(1998) 8 SCC 119] **,** held that when a landlord asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide. **RCRev.No.241 OF 2019** **11** 20. It is also trite that, the tenant cannot dictate terms to the landlord. 21. In Sait Nagee Purushothaman and Co. Ltd v. Vimalabhai Prabhulai [2005 KHC 1495] , it is held that it is for the landlord to decide whether the space is sufficient for his need. Tenant cannot have a dictatorial role in that assessment of the landlord. 22. In view of the empathetic testimonies of PW1 and PW2, that they bona fide require the shop room to start the business in electronics for PW2, and the law laid down in the above-said decisions and also the fact that the respondent has refused to mount the box and let in any contra evidence, we are convinced of the bona fide need claimed by the petitioner in the RCP. 23. Coming to the question whether the respondent is entitled to the protection under the provisos to Section 11 (3) of the Act, the law **RCRev.No.241 OF 2019** **12** contemplates that the initial onus of proof is on the respondent to prove that the petition is hit by the first proviso to Section 11 (3) of the Act and that he is entitled to protection under the second proviso to Section 11(3) of the Act. The respondent has refused to mount the box, therefore has not dispelled the initial burden of proof. On the sole ground, the respondent is not entitled to protection under the above-said provisos to Section 11(3) of the Act. 24. In addition to the above finding, we find that the petitioner has specifically assigned special reasons for choosing the shop room as it has road frontage to the National Highway. The respondent has not proved that other shop rooms belonging to the petitioner have the same road frontage as that of the petition schedule shop room. The petitioner has also produced Exts.A6 to A8 documents to substantiate that there are other shop rooms **RCRev.No.241 OF 2019** **13** available in the locality which are more than sufficient for the respondent to shift his business. The respondent has not disproved the assertion of the petitioner. Though he has produced certain documents to establish his income, the same have not been corroborated and proved. Thus, the said documents cannot be taken on its face value. 25. In light of the aforesaid findings, we hold that the respondent is not entitled to the benefits of the first and second proviso to Section 11(3) of the Act. 26. In the totality of the facts and circumstances of the case, pleadings and evidence on record, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered eviction of the respondent under Sec.11(3) Act. We confirm the concurrent findings of the the Appellate Authority in RCA No.3/2015 and the Rent Control Court in **RCRev.No.241 OF 2019** **14** RCP No.11/2013 27. At that point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the shop room. Taking into consideration the fact that the RCP was filed in the year 2013, and that the impugned order was passed by the Rent Control Control as early as on 27.10.2014, and subsequently, the Rent Control Appeal was filed in the year 2015, we feel that the revision petitioner has got more than sufficient time to vacate the shop room. 28. Having regard to the facts and circumstances of the case, we deem it appropriate to grant the revision petitioner six months' time to . vacate the shop room on the following conditions (1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he **RCRev.No.241 OF 2019** **15** will vacate the petition schedule shop room within six months from today. (2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. In the result, this revision petition is accordingly dismissed. Sd/- **K.HARILAL, JUDGE** ma/24.02.2020 Sd/- **C.S DIAS, JUDGE** ## /True copy/ P.S to Judge