C.V. Antony v. Sadikka

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 10TH DAY OF APRIL 2017/20TH CHAITHRA, 1939** **RCRev..No. 299 of 2014 (E) --------------------------** **AGAINST THE JUDGMENT IN RCA 58/2013 of ADDITIONAL DISTRICT COURT, KOZHIKODE-III DATED 07-07-2014.** **AGAINST THE ORDER IN RCP 144/2011 of ADDITIONAL MUNSIFF'S COURT, KOZHIKODE-I DATED 27-03-2013** ## **REVISION PETITIONER/APPELLANT/RESPSONDENT:** **------------------------------------------** **C.V.ANTONY, AGED 84 YEARS, S/O.LATE VARGHESE, ASST.NO.6/754, NEAR PARAGON HOTEL, KANNUR ROAD, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **BY ADV. SMT.MEENA.A.** **RESPONDENT/RESPONDENT/PETITIONER:** **---------------------------------** **SADIKKA, AGED 53 YEARS, W/O.ABDUL MATHEEN, KALATHINKUNNU AMSOM, DESOM, KOZHZIKODE-673 002.** **BY ADV. SRI.V.V.SURENDRAN** **SRI.P.A.HARISH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL & RAJA VIJAYARAGHAVAN. V., JJ. --------------------------------------------------------R.C.R. No.299 of 2014-E ---------------------------------------------------------Dated this the 10[th] day of April, 2017** ## **ORDER** ## **Harilal, J.** Since the scope of interference under Sec.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') is confined to legality, regularity and propriety of the impugned judgment, the facts pertaining to the legal issues alone need be narrated in this Rent Control Revision and the same are as follows: The petitioner herein is the tenant who confronted with an order of eviction passed under Sec.11(3) of the Act and the judgment confirming the said order in appeal. The parties are referred ## **R.C.R. No.299 of 2014** -: 2 :- to as in the Rent Control Petition. According to the petitioner, the petitioner's son by name 'Nihal' is an unemployed youth and he bona fide requires the petition schedule building for starting a ready made textile business. The petitioner and her son 'Nihal' are not having any other shop room in their possession for the purpose stated above. 2. The respondent filed an objection contending that he is entitled to get the right of permanent tenancy under Section 11(17) of the Act as the petition schedule building was taken on rent before 1938 from the predecessor of the petitioner. So also, the respondent denied the landlord-tenant relationship contending that after the death of the original tenant, he is unaware of the ownership of the building and there is no landlord-tenant relationship between the respondent and the present petitioner who filed the Rent Control Petition. He has no knowledge regarding the legal heirs of the deceased original landlord S.M. Syed **R.C.R. No.299 of 2014** -: 3 :- Muhammed Sahib. Further, he admitted that he received a notice from the petitioner and he has paid rent to the petitioner inclusive of June, 2011. According to the respondent, the bona fide need projected in the petition is a pretext for eviction. The petitioner as well as the said 'Nihal' have so many other vacant rooms to start the proposed ready made textile business. The aforesaid 'Nihal' is conducting another textile business in another building. The petitioner's husband and children are financially very sound and having a lot of rooms in their possession and these all shop rooms are not at all sufficient for her son for conducting a ready made business. He is entitled to get protection under the twin proviso to Section 11(3) of the Act. 3. On the aforesaid pleadings, both parties adduced evidence - oral and documentary. After considering the evidence, on record, the Rent Control Court found that the respondent has miserably failed to prove the right of permanent **R.C.R. No.299 of 2014** -: 4 :- tenancy claimed under Sec.11(17) of the Act and there exists landlord-tenant relationship between the petitioner and the respondent and that the need projected in the petition is a bona fide one. 4. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent. 5. The case of the respondent was that the petition schedule shop room was entrusted to him before 1938 by the predecessor in interest of the petitioner. Therefore, he is entitled to get protection under Sec.11(3) of the Act. In order to substantiate the said claim, he has given evidence as R.W.1. According to him, one Mathai has taken the plaint schedule building on rent, for and on behalf of him, from one S.M. Syed Muhammed Sahib before 1938. But, there is no evidence to establish the commencement of the tenancy before 1938, except the oral assertion of the respondent as R.W.1. It is pertinent to note that in 1938 the respondent was ## **R.C.R. No.299 of 2014** -: 5 :- aged 10 years only. Needless to say, the burden is heavy on the respondent to prove that the tenancy had commenced before 1940 so as to get protection under Sec.11(17) of the Act. In the absence of evidence, the courts below are justified in rejecting the claim under Sec.11(17) of the Act. 6. Though the respondent has denied the landlord-tenant relationship between the petitioner and the respondent, he himself admitted that he had paid rent to the petitioner till 2011. Thus, the payment of rent to the petitioner in response to Ext.A4 notice sent by the petitioner demanding arrears of rent was admitted by the respondent himself. In view of the receipt of rent by the petitioner from the respondent, the courts below are justified in finding that there exists landlordtenant relationship between the petitioner and the respondent and the petitioner is entitled to maintain the Rent Control Petition seeking an order of eviction against the respondent. **R.C.R. No.299 of 2014** -: 6 :- 7. To prove the bona fide need of the petitioner's son 'Nihal' to start a ready made textile business, the husband of the petitioner was examined as P.W.1 and he has given evidence to the effect that the petitioner's son 'Nihal' is depending on the petitioner for his livelihood and he has no job or avocation. Since the family was in textile business, his son has got rich experience in textile business. The petitioner has produced Exts.A1 and A2 bank account statements to prove the financial capacity to start a new business. No kind of oblique motive has been brought out in evidence to doubt the genuineness of the evidence given by P.W.1. Therefore, we find no reason to interfere with the satisfaction of the courts below on the bona fide need of the petitioner. 8. Even though the respondent has contended that the petitioner and his family members have so many vacant rooms in their possession, they could not point out either in **R.C.R. No.299 of 2014** -: 7 :- pleadings or in evidence the identity of those rooms which stood vacant, according to him. Thus, the respondent failed to establish the possession of any other room with the petitioner. In the above context, the courts below rightly relied on the decision of this Court in Madhava v. Pathumabi [2005 (3) KLT 369]. 9. As regards the second proviso, for proving the case of the respondent, he has produced Exts.B1 to B6 Tax Receipts issued by the Kozhikode Corporation for the period from 2006 to 2011. Those receipts are not sufficient to prove the case of the respondent that he was mainly depending upon the income from the petition schedule shop room for his livelihood. It has come out in evidence that he has not made any earnest efforts to find out any vacant room to shift his business from the petition schedule building. In short, the respondent has miserably failed to discharge the burden of proof, under the twin provisos to Sec.11 of the Act. ## **R.C.R. No.299 of 2014** -: 8 :- Therefore, the courts below are justified in denying the protection under the said provisos to Sec.11(3) of the Act also. 10. The learned counsel for the respondent cited the decision of this Court in Lakshmi v. Labbah Kunju Ameer Hamsa [2005 (3) KLT 627] and submits that the non-examination of either of the landlord or the dependent is fatal. Whether bona fide need is established on the basis of evidence is a question depending upon the facts of each case. There cannot be any invariable formula for the same. In the instant case, P.W.1, who is none other than the husband of the petitioner and the father of the dependent, was examined in evidence, for and on behalf of them. The courts below were satisfied with his evidence. This Court is not inclined to interfere with such satisfaction recorded by the courts below, under the revisional jurisdiction. The above view is supported by the decisions of this Court in Devayani v. ## **R.C.R. No.299 of 2014** -: 9 :- Pulickaparambil Hamsa [1997 (1) KLJ 230] and Mustafa Haji v. Umbichi [2004 (2) KLT 1110]. 11. We do not find any reason to interfere with the concurrent findings of the courts below on merits; but, the cost awarded by the courts below to the petitioner will stand set aside. 12. At last, the learned counsel for the revision petitioner sought for some time to surrender the petition schedule shop room. The learned counsel for the respondent opposed the said request. But, this Court is of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule shop room, on terms. The revision petitioner shall vacate the petition schedule building within four months provided that he could comply the conditions given below within the specified time. i) The revision petitioner shall file an affidavit before the Execution Court expressing an unconditional undertaking to vacate the petition schedule shop room within a period of **R.C.R. No.299 of 2014** -: 10 :- four months from today and the said affidavit must be filed within two months from the date of receipt of a copy of this order. - ii) The revision petitioner shall pay entire arrears of rent to the respondent or deposit the same before the Execution Court within two months from the date of receipt of a copy of this order and he shall continue to pay rent without default. - iii) In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the respondent will be at liberty to proceed with the execution. This Rent Control Revision is dismissed. Sd/- ## **(K. HARILAL, JUDGE)** Sd/- **(RAJA VIJAYARAGHAVAN.V., JUDGE)** **Nan/** //true copy// P.S. to Judge