Devu W/o Rairu and others vs. RAJU

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934** **RCRev..No. 183 of 2012 ()** **-------------------------** **(RCA.152/2010 OF RENT CONTROL APPELLATE AUTHORITY, VADAKARA RCP.29/2007 OF THE RENT CONTROL COURT, VATAKARA)** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** ## **--------------------------------------------** **1. DEVU W/O.RAIRU, MALAYANDEKANDIYIL HOUSE, PUTHUR POST** - **NADAKKUTHAZHA AMSOM, PUTHUR DESOM, VADAKARA TALUK KOZHIKODE DISTRICT.** **2. GANGADHARAN** - **S/O.LATE RAIRU, MALAYANDEKANDIYIL HOUSE, PUTHUR POST NADAKKUTHAZHA AMSOM, PUTHUR DESOM, VADAKARA TALUK KOZHIKODE DISTRICT.** **3. JANAKI** - **W/O.CAHNDU, HILL VIEW, NADAKKUTHAZHA POST NADAKKUTHAZHA AMSOM, PUTHUR DESOM, VADAKARA TALUK KOZHIKODE DISTRICT.** ## **4. NARAYANI,** - **W/O.BALAN, KUNHEERANDAVIDA HOUSE, MUTHUNGAL WEST POST VATAKARA TALUK, KOZHIKODE DISTRICT.** **5. VALSALA W/O.BALAN, KUTTALIL HOUSE, OLAVILAM POST.** **6. BALAKRISHNAN, S/O.LATE RAIRU, CHERIYANDIYIL HOUSE, PUTHUR POST NADAKKUTHAZHA AMSOM, PUTHUR DESOM VATAKARA TALUK KOZHIKODE DISTRICT.** **7. RAVEENDRAN S/O.LATE RAIRU, VALLIL HOUSE, PUTHUR POST NADAKKUTHAZHA AMSOM, PUTHUR DESOM VATAKARA TALUK KOZHIKODE DISTRICT.** **8. BIJU S/O.LATE SUJATHA, KAKKACHERY HOUSE, PUTHUR POST NADAKKUTHAZHA AMSOM, PUTHUR DESOM, VATAKARA TALUK KOZHIKODE DISTRICT.** **RCRev..No. 183 of 2012 ()** **9. VIJISHA D/O.LATE SUJATHA, KAKKATTIL HOUSE AVOLAM AMSOM AND DESOM, VATAKARA TALUK KOZHIKODE DISTRICT.** **10. VIJIL (MINOR) S/O.LATE SUJATHA, KAKKATTIL HOUSE AVOLAM AMSOM AND DESOM, VATAKARA TALUK KOZHIKODE DISTRICT. (REPRESENTED BY GUARDIAN SISTER 9TH RESPONDENT VIJISHA, D/O.LATE SUJATHA, KAKKATTIL HOUSE AVOLAM AMSOM AND DESOM, VATAKARA TALUK KOZHIKODE DISTRICT.** **BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW** **RESPONDENT/PETITIONER:** **----------------------** **RAJU** **S/O.LATE KANARAN, KOKILAM HOUSE NEAR SREE NARAYANA HIGH SCHOOL VADAKARA AMSOM AND DESOM, VADAKARA TALUK KOZHIKODE DISTRICT-673 101.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SCL.** **PIUS C. KURIAKOSE & A.V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------RCR NO. 183 OF 2012 -----------------------------------------Dated this the 5[th] day of June, 2012** ## **O R D E R** ## Ramakrishna Pillai, J. The tenants are the revision petitioners. 2. The respondent sought eviction of the revision petitioners from the tenanted premises under Section 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as “the Act”). 3. The case of the respondent was that the petition schedule item was taken on lease by one Rairu, and after his death, the revision petitioners, who succeeded tenancy are in possession of the same by paying rent @ Rs.50/- per month. The 2[nd] revision petitioner was paying the rent on behalf of the other revision petitioners. Rent was paid up to December 1992. As the revision petitioners defaulted to pay the rent thereafter, the respondent moved the Rent RCR NO. 183 OF 2012 **==> picture [20 x 9] intentionally omitted <==** Control Court by filing RCP No:119/99 and as ordered by the Rent Control Court, the rent was paid up to October 1999. Thereafter, no rent was paid. It is further alleged that the son of the respondent, an unemployed youth who has completed his B.Sc.(Microbiology), is in need of the tenanted premises to start a clinical laboratory for his livelihood, as the respondent has no other vacant building. 4. The revision petitioners resisted the claim contending that the rent is in arrears only from January 2003, that too, because the respondents did not come and collect the same. The need alleged is not bona fide and it is only a ruse for eviction. The further contention was that the revision petitioners are depending upon the income derived from the business set up in the tenanted premises, and no other suitable buildings are available in the locality to shift their business. 5. The learned Rent Controller, after raising proper points for trial permitted both sides to adduce evidence. After considering the testimonies of PW1, PW2 and RW1 as RCR NO. 183 OF 2012 **==> picture [20 x 9] intentionally omitted <==** well as Exts.A1 to A26 and Ext.B1, allowed the petition partly by holding that the revision petitioners are entitled to the protection of the proviso to Section 11(3) of the Act. 6. The above order was challenged in appeal by both sides. In the appeal, Ext.A27 was marked on the side of the respondent. The appellate authority remanded the case to the Rent Control Court for entering into fresh finding on both the grounds. After remand, PW1 and RW1 were examined further. On the side of the revision petitioners, RW2 and RW3 were also examined. 7. The Rent Control Court, after considering the entire evidence on record, found that the monthly rent of the respondent's building is Rs.160/- per month and the revision petitioners have kept the rent in arrears from March 2000. As it was found that no rent was paid after the notice, the eviction was ordered under Section 11(2)(b) of the Act. It was also found that the need alleged is bonafide and revision petitioners are not entitled to the benefit under the second proviso to Section 11(3) of the Act. RCR NO. 183 OF 2012 ..4.. 8. Though the matter was taken before the Rent Control Appellate Authority by the revision petitioners, it was without success. Thus, they have come up in revision. We heard the learned counsel for the revision petitioners. 9. We have also perused the impugned judgment of the Rent Control Appellate Authority as well as the order of the learned Rent Controller. 10. The first argument advanced by the learned counsel for the revision petitioners is that the 9[th] revision petitioner was not served with Ext.A3 notice and therefore, Ext.A3 notice is invalid in law. According to the learned counsel for the revision petitioners, as the revision petitioners are the legal heirs of the original tenant, they are joint tenants and each of the legal heirs of the original tenant is entitled to get the notice under Section 11(2) of the Act. It was argued that the courts below ought not have passed an order of eviction under Section 11(2) against the revision petitioners as this was not a valid notice. But, we notice that the interest of the 9[th] petitioner was also RCR NO. 183 OF 2012 **==> picture [20 x 9] intentionally omitted <==** protected by the other revision petitioners. Hence, the contention that the 9[th] revision petitioner was not served with a valid notice does not appear to be convincing. Both the courts below have concurrently found that the rate of rent is Rs.160/- per month, which is supported by the evidence on record. Though, it was stated in the demand notice that rent is in arrears from 01.11.1999, admittedly, rent was paid for another four months from that date and the same has been accepted. So, as per the evidence now on record, rent is in arrears from March 2000, which is admittedly not paid by the revision petitioners within the statutory time after the receipt of the demand notice. So, both the courts below are perfectly justified in granting an order of eviction under Section 11(2)(b). However, we make it clear that the order of eviction under Section 11(2) (b) is subject to the revision petitioners' right to seek remedies under Section 11(2)(c). 11. Coming to the genuineness of the need, it is confirmed by both the courts below that PW2, who has RCR NO. 183 OF 2012 ..6.. completed his degree in Microbiology, is intending to put up a clinical laboratory in the tenanted premises and that he was depending on the respondent for the purpose of the building. The said finding is supported by ample evidence on record. The respondent has given evidence as PW1 and deposed about the dependency of PW2 upon him. It is in evidence that PW2 is a degree holder in Microbiology and he has experience as a laboratory technician. We are not prepared to hold that the need alleged is not bona fide. It was argued by the learned counsel for the revision petitioners that though Ext.B1 notice, wherein eviction of the revision petitioners is sought to enable PW2 to start a laboratory was sent in the year 2004, the RCP was filed only in the year 2008. Definite answer to this is given by PW1 in cross-examination. According to him, the delay was due to the promise given by the revision petitioners to vacate the building. According to us, the delay in lodging the petition will not tell upon the genuineness of the alleged need. 12. Coming to the first proviso to Section 11(3), we RCR NO. 183 OF 2012 **==> picture [20 x 9] intentionally omitted <==** see nothing on evidence except the statement of the revision petitioners that the landlord is in possession of other vacant rooms in the locality suited to the needs of his son. The courts below have rightly pointed out that there is no evidence to show that the respondent is in possession of other vacant rooms where PW2 can start the proposed laboratory. 13. Coming to the second proviso, it has to be noted that according to PW1, he and his brothers are doing goldsmith work in the tenanted premises and that is the main source of their livelihood. But, apart from the interested testimony of RW1, there is nothing to show that they are mainly depending upon the income derived from the business set up in the tenanted premises. RW1 has no case that he had made enquiries in the locality as to whether any vacant rooms are available suited to their needs. On the other hand, there is a positive assertion in the testimony of PW1 that there are several vacant rooms in the vicinity of petition schedule building. So, it cannot be said RCR NO. 183 OF 2012 **==> picture [20 x 9] intentionally omitted <==** that the revision petitioners have exhausted the burden to prove both the limits of the second proviso to Section 11(2). Though, the learned counsel for the revision petitioners placed reliance on decision of this Court in **Sadanandan v. Kunheen** (1991 (2) KLT 628), it is no longer a good law as it is now settled that the burden is on the tenant to prove the both limbs of the second proviso to Section 11(3). 14. After considering the entire facts and circumstances of the case, we are of the view that the interference by this Court under Section 20 of the Act is not warranted as the impugned judgment does not suffer from any illegality, irregularity or impropriety. Hence, the revision fails and we dismiss the petition accordingly. 15. When our decision was made known to the learned counsel for the revision petitioners, he requested one year time to surrender vacant possession of the tenanted premises. We are of the view that we will not be justified in granting so much time to the revision petitioners without hearing the respondent/landlord. Hence, issue RCR NO. 183 OF 2012 **==> picture [20 x 9] intentionally omitted <==** notice to the respondent by speed post for hearing on the question of time, if any, that has to be granted to the revision petitioners for giving vacant possession of tenanted premises. The execution proceedings pending before the trial court shall be kept in abeyance for three months from today. Sd/- **PIUS C. KURIAKOSE, JUDGE** Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/- //True copy// PA to Judge