Chirutha Kunnummal Balakrishnan v. CHAKKARA MAKOOL SUMA SURENDRAN; Cheroth Puthukkudi Nidhin Sivasankaran; Cheroth Puthukkudi Nimna Sivasankaran (Deleted)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 ``` ``` RCREV. NO.4 OF 2020 ``` ``` AGAINST THE JUDGMENT IN RCA 2/2018 OF RENT CONTROL APPELLATE AUTHORITY/ADDITIONAL DISTRICT COURT-V, KOZHIKODE ``` ``` RCP 17/2015 OF RENT CONTROLLER/MUNSIFF, PERAMBARA ``` ## **`PETITIONER IN RCR/APPELLANT IN RCA/1[ST] RESPONDENT IN RCP:`** ``` CHIRUTHA KUNNUMMAL BALAKRISHNAN AGED 61 YEARS ``` ``` S/O.RAMARKUTTY, BUSINESS, CHIRUTHA KUNNUMMAL HOUSE, MENHANNIAM AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. ``` ``` BY ADV NIDHI BALACHANDRAN ``` ## **`RESPONDENTS IN RCR/RESPONDENTS IN RCA/PETITIONER &`** ## **`RESPONDENTS 2 & 3 IN RCP:`** ## **`1 CHAKKARA MAKOOL SUMA SURENDRAN AGED 66 YEARS`** - **`W/O.SURENDRAN, RESIDING AT KOOTHALI AMSOM DESOM, KOOTHALI (PO), KOYILANDY TALUK, KOZHIKODE DISTRICT673532.`** - **`2 CHEROTH PUTHUKKUDI NIDHIN SIVASANKARAN, S/O.LATE SIVASANKARAN, AGED 36 YEARS, RESIDING AT`** 2 R.C.R No.4 of 2020 ``` PUTHIYANGADI AMSOM, ATHANIKKAL DESOM, KOZHIKODE TALUK AND DISTRICT-673021. ``` ``` *3CHEROTH PUTHUKKUDI NIMNA SIVASANKARAN,(DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 24.11.2022) S/O.LATE SIVASANKARAN, AGED 32 YEARS, RESIDING AT PUTHIYANGADI AMSOM, ATHANIKKAL DESOM, KOZHIKODE TALUK AND DISTRICT-673021. ``` ``` *(DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 24.11.2022) ``` ``` BY ADVS. SRI.PHILIP ANTONY CHACKO SRI.N.V.PAUL ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL ``` ``` HEARING ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.C.R No.4 of 2020 ## **O R D E R** ## **G. Girish, J** The tenant in R.C.P No17 of 2015 of the Rent Control Court, Perambra, who suffered order for eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, which was confirmed in appeal by the Rent Control Appellate Authority, Kozhikode, has filed this revision petition, challenging the aforesaid verdicts of the court below. 2. The case of the revision petitioner is that the authorities below, on a wrong appreciation of the bona fide need projected by the respondents, directed him to hand over vacant possession of the petition schedule building. According to the revision petitioner, the jewellery business being conducted by him in the leasehold premises, is his only source of livelihood and that the respondents are having other suitable buildings in the locality in which they could conduct the bakery business proposed by the son of the 1[st] respondent. It is also pointed out that there are no suitable buildings available in the locality for the revision petitioners to shift their business. Thus, the revision petitioner resisted the eviction before the authorities below, claiming benefits of both the provisos of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. Respondents, on the other hand, contended that the petition 4 R.C.R No.4 of 2020 scheduled building is of absolute necessity for them for the commencement of a bakery there by the son of the 1[st] respondent, who is unemployed. They also strongly disputed the contention of the revision petitioner about the availability of other shop rooms in their possession for the proposed bakery business. Respondents further contended that the petitioners are having the option to shift their business to other suitable buildings available in the locality. 3. The Rent Control Court as well as the Appellate Authority found the need of the respondents bona fide. As regards the contentions put forward by the revision petitioner, claiming benefit of the provisos to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, both the authorities below held that the revision petitioner failed to establish the requirements of the above provisos. 4. Heard the learned counsel for revision petitioner, and the learned counsel for respondents. 5. The point to be decided in this revision proceedings is whether the judgment dated 19.11.2019 of the Rent Control Appellate Authority (Additional District Court-V), Kozhikode in R.C.A No.2 of 2018 upholding the order of eviction passed by the Rent Control Court, Perambra on 31.10.2017 in R.C.P No.17 of 2015, 5 R.C.R No.4 of 2020 under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, requires any interference. 6. A perusal of the impugned judgment of the Appellate Authority would reveal that the said Authority as well as the Rent Controller had correctly appreciated the evidence adduced by the respondents before the Rent Control Court through the oral testimony of PW1 (son of the 1[st] respondent) and the documents marked as Ext.A1, Exts.C1 and C1(a) and also the evidence, which the revision petitioner adduced through his oral testimony as RW1. The Authorities below rightly held that the respondents could successfully establish the bona fide need, for which they are seeking eviction of the revision petitioner from the leasehold premises. The evidence adduced by both parties have been evaluated scrupulously by the Authorities below to ascertain whether the revision petitioner could establish the protection of the provisos to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. 7. As regards the claim of eviction on the ground of bona fide need as envisaged under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, a Division Bench of this Court in which one among us, Justice Anil K. Narendran was a Member, has held in ## **Aboobacker.C.P v. K.T.Sreelatha Nambiar [2022 KHC 5100]** that once, on the basis of materials on record, the landlord has 6 R.C.R No.4 of 2020 succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second provisos to the said Act. 8. As regards the onus of proving requirements of provisos 1 and 2 of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, it is well-settled that it is upto the tenant to bring out the requisite particulars through convincing evidence, for seeking the protection of the said provisos. 9. Following various earlier decisions of this Court, it has been held by a Division Bench of this Court in **Chethil Tharemmal** **Rasheeda v. Peedikayilakath Muhammad [2021 (6) KHC** **723]** , in which one among us, Justice Anil K. Narendran was a member, that the burden to prove the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act is on the tenant. So also, in **Aboobacker.C.P v. K.T.Sreelatha Nambiar** (supra) it has been held that it is the absolute burden of the tenants to prove both limbs of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. 7 R.C.R No.4 of 2020 10. In the case on hand, the revision petitioner could not succeed in establishing the requisite particulars of provisos (1) and (2) of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, and thus he is not entitled for the protection and privilege envisaged thereunder. 11. As already stated above, in the instant case, the Rent Controller as well as the Appellate Authority have rightly appreciated the facts, evidence and law, and arrived at the correct finding that the respondents-landlords are entitled to have possession of the petition scheduled building, on the ground of bona fide need envisaged under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. Thus, there is absolutely no scope for interference in this revision proceedings, with the above concurrent verdicts of the Authorities below. 11. When the above finding of us, was made clear at the Bar, the learned counsel for the revision petitioner submitted that a period of at least six months may be granted to the revision petitioner to vacate the leasehold premises, where he is conducting business. Having regard to the above submission of the learned counsel for the revision petitioner, as well as the facts and circumstances of the case, we deem it appropriate to grant five months’ time for the revision petitioner to hand over vacant 8 R.C.R No.4 of 2020 possession of the petition schedule building to the respondents, subject to the conditions outlined hereunder; (i) The petitioner-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the respondents-landlords within five months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further he shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; - (ii) The petitioner-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, and shall 9 R.C.R No.4 of 2020 continue to pay rent for every succeeding months, without any default; (iii) Needless to say, in the event of the petitioner-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop rooms will stand cancelled automatically and the respondentslandlords will be at liberty to proceed with the execution of the order of eviction. (sd/-) (sd/-) **G. GIRISH, JUDGE** vgd