C.VIJAYAN S/O APPUTTY v. M.P.SHOBHANA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938** **R.C.Rev.No.109 of 2016 ()** **-------------------------AGAINST THE JUDGMENT IN RCA 47/2015 of ADDL. DISTRICT COURT - IV, KOZHIKODE, DATED 18-01-2016. & AGAINST THE ORDER/JUDGMENT IN RCP 136/2013 of ADDL. MUNSIFF-I, KOZHIKODE, DATED 19-12-2014** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **-------------------------------------------** **C.VIJAYAN S/O APPUTTY, AGED 64 YEARS, DOOR NO.27/792, 27/793, KUTHIRAVATTAM P.O., KUTTOLI AMSOM PARAYANCHERI DESOM, KOZHIKODE.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN SMT.UMMUL FIDA** **RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------** **M.P.SHOBHANA W/O KARUNAKARAN, SHOBANA SADAN, PAROPPADY P.O., MERIKUNNU, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK-673 008.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **P.N. Ravindran & K. Ramakrishnan, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.109 of 2016 - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of March, 2016 ## **ORDER** ## **K. Ramakrishnan, J** The tenant respondent in R.C.P.No.136/2013 on the file of the Rent Control Court, Kozhikode is the revision petitioner herein. The landlady/respondent herein filed rent control petition for eviction on the ground of _bonafide_ need under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). 2. It is alleged in the rent control petition that the petitioner therein is the owner of the petition schedule building and the respondent therein is in occupation of the same as tenant under her. The petition schedule building is situated near Kuthiravattom Mental Health Hospital, Kozhikode and Vasan's Eye Care Hospital and several doctors are residing in the locality. The petitioner's son who was working in a pharmaceutical manufacturing company and he is intending to start a medical store of his own in the petition schedule building. He has no other building of his own for that purpose. He is depending on the petitioner for this purpose. The rooms of the petition schedule building are small. He requires both the petition schedule _**R.C.R. No.109 of 2016**_ 2 building for that purpose. The petitioner requested the tenant to vacate the premises, but he has not heeded for the request. He is conducting business in vegetables and aluminum vessels. He is not depending on the income derived from the business that is being conducted in the building. He is also conducting real estate business and getting substantial income. There are other buildings available in the locality. So the petitioner/landlady has no other option, except to file the application for eviction under section 11(3) of the Act. Hence the petition. 3. Respondent/tenant who is the revision petitioner herein entered appearance and filed counter statement contending that the application is not maintainable. The mental hospital is situated far away from the petition schedule building. The allegation that there are several doctors in the locality and the petitioner's son is working in a pharmaceutical manufacturing company, he wants to start business in medicines is not correct. He has no experience and the rooms in the petition schedule building are small and not suitable for that purpose. The only intention of the petitioner is to evict the tenant from the petition schedule building and to let out the building to some other person on higher rent. Further the landlady had requested for enhancement of rent for which he was not amenable, that prompted _**R.C.R. No.109 of 2016**_ 3 her to file the present petition. He is depending on the income derived from the business conducting in the petition schedule building and there are no other building available in the locality to shift his business. So he prayed for dismissal of the application. 4. The petitioner's son was examined as PW1 and Exts.A1 to A3 were marked on their side. The respondent was examined as RW1 and Exts.B1 to B8 were marked on his side. After considering the evidence on record, the rent control court found that the need alleged by the petitioner is genuine and the tenant is not entitled to second proviso protection to Section 11(3) of the Act and allowed the application for eviction under Section 11(3) of the Act. Aggrieved by the same, the tenant filed R.C.A.No.47/2015 before the Rent Control Appellate Authority, Kozhikode, which was made over to First Additional District Court, Kozhikode for disposal and the learned additional appellate authority, dismissed the appeal, confirming the order of eviction passed under Section 11(3) of the Act. Dissatisfied by the concurrent findings of the court below, the present revision has been filed by the revision petitioner/defeated tenant in the court below. 5. Heard Sri.K.M.Firoz, counsel appearing for the revision petitioner. _**R.C.R. No.109 of 2016**_ 4 6. The counsel for the revision petitioner submitted that the son of the landlady has no experience in conducting the medical business and he had no idea about the person whom he wants to engage as pharmacist to start the business. Further even according to him, he is now working in a company and there is no possibility for him leaving the company and starting a business as claimed. Further the documents produced by the petitioner will go to show that she wanted enhancement of rent for which he was not amenable which prompted her to file the application for eviction on same ground as ruse for eviction. So according to him, the courts below have not properly appreciated the evidence and the order under challenge passed is not proper and it is perverse, which requires interference under section 20 of the Act. 7. The fact that the respondent herein is the owner of the petition schedule building and the revision petitioner is in occupation of the same as tenant is not in dispute. The case of the landlady in the petition was that her son who has been examined as PW1 is working in a pharmaceutical manufacturing company and he wants to start a medical shop as he is having a prospects in that business considering the locality and his experience in that filed, for which he is depending on his mother. In order to prove the need of the _**R.C.R. No.109 of 2016**_ 5 landlady, the son of the landlady on whose behalf and for whose need the petition was filed has been examined as PW1. He had categorically stated that he is working in a company at Bangalore and he wants to leave the company and start a medical store in the petition schedule building and he is solely depending on the petitioner for that purpose. Merely because he is working somewhere is not a ground to deny an order of eviction under section 11(3) of the Act, if he wants to leave the job and start his own business in his native place. It is true that PW1 had stated that he will be getting the assistance of his friend's wife who is a pharmacist to start the medical shop, but he was not able to give the details of his friend or wife of the friend. That alone is not sufficient to doubt the genuineness of the _bonafide_ need claimed by the petitioner. Further the question of getting a pharmacist to start a medical store is a thing to be arranged by PW1 after getting vacant possession of the building and at the time of starting the business. He can get the assistance of the pharmacist or he can even get an employee pharmacist for the purpose of starting the medical store. So that cannot be a ground for denying the order of eviction under section 11(3) of the Act, if the court is satisfied with the genuineness of the need alleged by the petitioner. It is true that Ext.B1 notice has been sent by the landlady asking for enhancement of rent, for which the _**R.C.R. No.109 of 2016**_ 6 tenant was not agreeable. That notice was sent in the year 2011 and the rent control petition was filed in the year 2013. So merely because the landlady wanted enhancement of rent alone is not a ground to doubt the genuineness of the need projected by the landlady, especially when it was filed after two years of sending Ext.B1 notice. So under the circumstances, courts below were perfectly justified in coming to the conclusion that the need alleged by the petitioner is _bonafide._ 8. Though the tenant had a case that PW1 is not depending on the petitioner and he has got his own building, he has not adduced any evidence to prove that fact. Further the financial dependency alone is not a criteria for considering the question of dependency contemplated under section 11(3) of the Act and it is so held by this court in the decision reported in _**Sameera and others v. M.C.Mammootty and Another**_ (2013(4) KHC 826). So under the circumstances, the courts below were perfectly justified in coming to the conclusion that PW1 is depending on the petitioner for this purpose and rightly come to the conclusion that the petitioner can maintain the application for eviction for occupation of the son to start a business of his own. 9. Assuming that the landlady is able to prove _bonafide_ _**R.C.R. No.109 of 2016**_ 7 need, she is not entitled to get the vacant possession of the building, if the tenant is able to establish that he is solely depending on the income derived from the business conducted in the petition schedule building and there are no other buildings available in the locality to start his business. Though PW1 had a case that the tenant had got income by way of brokerage in real estate business apart from the business conducted in the petition schedule building, no acceptable evidence has been adduced to prove this fact. So the courts below came to the conclusion that the tenant was able to establish that he is eking his livelihood from the income derived from the business conducted in the petition schedule building. But PW1 had categorically stated that there are other buildings available in the locality. RW1 had admitted his evidence that he did not made any enquiry regarding the availability of any building in the locality for shifting his business. So under such circumstances, courts below were perfectly justified in coming to the conclusion that the tenant had failed to prove that there are no other building available in the locality to shift the business. 10. It is settled law that in order to get the second proviso protection of section 11(3) of the Act, the tenant has to prove both the limbs under the proviso. Since the tenant had failed to prove one of the limbs of the proviso, the courts below were perfectly _**R.C.R. No.109 of 2016**_ 8 justified in coming to the conclusion that the tenant is not entitled to get second proviso protection of Section 11(3) of the Act and rightly ordered eviction under Section 11(3) of the Act and the concurrent findings of the court below on this aspect do not call for any interference. Before disposing the revision petition, the counsel for the revision petitioner sought time to vacate the premises. Considering the fact that the tenant is conducting business in vegetables and other grossery items, we deem it appropriate to grant seven months time to vacate the premises. So the revision petitioner is granted time till 29.10.2016 to vacate the premises, on condition that the petitioner shall file an undertaking in the form of an affidavit that he will remit the arrears of rent if any on or before 17.05.2016 and continue to pay the rent till surrender possession of the building as directed and also on further condition that he will surrender possession of the building on 29.10.2016 without any objection and he will not induct any third parties or strangers or sublet the building during this period. He shall file the undertaking before the rent control court or before the execution court if any execution petition is pending on or before 17.05.2016. If the revision petitioner did not file the undertaking as mentioned above or deposit the arrears of rent if any as mentioned _**R.C.R. No.109 of 2016**_ 9 above, then the time granted by this court to surrender will not be available to him. With the above direction and observation, the revision petition is dismissed. Considering the circumstances, the parties are directed to bear their respective costs in the revision. ## _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** //True Copy// P.A. to Judge _ss_