Dr. P. Sujatha v. H.S.E Ameer Faizal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939** **RCRev..No. 386 of 2017 () --------------------------** **RCA 13/2016 of RENT CONTROL APPELLATE AUTHORITY, KASARAGOD RCP 40/2014 of RENT CONTROL COURT (MUNSIFF COURT), HOSDRUG ---------------** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **-------------------------------------------** **DR.P.SUJATHA, AGED 48 YEARS,D/O.C.K.KUNHAMBU,ROOM NO.W-I-1001F, NEAR N.K.B.K.MEMORIAL SCHOOL,NILESHWAR,NILESHWAR VILLAGE, HOSDURG TALUK,P.O.PADNEKKAD,KASARAGOD DISTRICT.** **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENT(S)/PETITIONER:** **-------------------------** **H.S.E.AMEER FAIZAL,** **AGED 46 YEARS,S/O.EDAKKAVIL MUHAMMED KUNHI, RESIDING AT `PADNEKKAD,KANHANGAD VILLAGE,P.O.PADNEKKAD,HOSDURG TALUK, KASARAGOD DISTRICT-671123.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STK** ## **K. HARILAL & A.M.BABU, JJ.** ## **-------------------------------** ## **R.C.R No.386 of 2017** **----------------------------------** Dated this the 27[th] day of November, 2017 ## **O R D E R** ## **K. Harilal J.** The revision petitioner is the tenant who is confronting with an order of eviction passed by the Rent Control Court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (in short, 'the Act'), which stands confirmed in appeal. According to the landlord, he bonafide needs the petition schedule building for staring a business of readymade garments and churidar materials. His wife is an expert kids-ware tailor. Earlier, he was employed abroad and now he has lost his job and presently he has no avocation for the livelihood of his family. He has no other vacant buildings of his own in his possession. Hence he requested the petition schedule room for his bonafide need. Several rooms are available in the locality for rent. ## **R.C.R No.386 of 2017** ## **-: 2 :-** 2. The tenant resisted the claim for eviction under Section 11(3) of the Act, contending that the rent control petition was filed with oblique motive to see that she is evicted from the petition scheduled room, as the relationship between the landlord/tenant is very strained. The landlord was trying to evict her from the schedule room by cutting her amenities and she was compelled to approach the Accommodation Controller for restoring the same. Even though, the Accommodation Controller has passed an order restoring the amenities provided to her, the landlord was not willing to execute the said order. In short, the rent control petition is a ruse for eviction only. Further, there is no need to start such a business as he is very affluent as he was employed abroad. He has rented out seven other shop rooms in the ground floor to different tenants and no eviction proceedings has been initiated against any tenant other than the respondent. ## **R.C.R No.386 of 2017** ## **-: 3 :-** The schedule room is in the upper floor and is not suitable for housing the garment business. The respondent is a Dental Surgeon and she herself is eking out her livelihood by her practice as a Dentist and she has no other income and no other suitable buildings are available in the locality to shift the clinic. 3. On the aforesaid pleadings, both parties adduced evidence and on appreciation of evidence, the rent control court found that the respondent failed to prove any kind of oblique motive behind the rent control petition and the need projected in the petition is of bonafide. So also, it was found that the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. In the appeal, the appellate court also confirmed the aforesaid findings and dismissed the appeal. 4. Heard the learned counsel for the revision ## **R.C.R No.386 of 2017** ## **-: 4 :-** petitioner and the learned counsel for the respondent. 5. The sum and substance of the arguments advanced by the learned counsel for the petitioner is that the evidence available on record would show that the eviction proceedings were initiated against the respondent with oblique motive as the relationship between the petitioner and the respondent was a strained one. Secondly, it is contended that during the pendency of the appeal, the petitioner has got vacant possession of another room in the ground floor, but the same was rented out to another tenant for higher rent. Had the need been a bonafide one, certainly the petitioner could have started the readymade garment business in the shop room, which was rented out to the tenant during the pendency of the appeal. Even though, the respondent has filed application before the appellate authority to issue a Commission to ascertain the availability of another room ## **R.C.R No.386 of 2017** ## **-: 5 :-** in the ground floor and subsequent rental arrangement with another tenant, the said application was also dismissed and thereby she was prevented from bringing the subsequent events having fundamental effect on the bonafide need of the petitioner, in evidence. 6. First of all we must remind ourselves the limited scope and extent of jurisdiction under Section 20 of the Rent Control Act, which is confined to legality, propriety and regularity of the findings of the courts below. The respondent has no case that the courts below have omitted to consider any valuable evidence or placed reliance on any irrelevant evidence or wrong proposition of law. Therefore, we are not inclined to re-appreciate the entire evidence on record. 7. Going by the concurrent findings of the court below it is seen that the respondent has ventured to prove that the eviction proceedings were initiated against **-: 6 :-** ## **R.C.R No.386 of 2017** her with oblique motive. It has come out in evidence that earlier, the petitioner has disconnected water connection to the tenanted premises and thereafter, the respondent has approached the Accommodation Controller and obtained an order granting the restoration of the amenities provided to her earlier. But, in order to prove the bonafides of the need, the petitioner was examined as PW1 and he has testified as to bonafides of his need. According to him, he has no income other than the income from the tenanted premises in the ground floor. In order to fortify his intention to start the readymade garment business, his wife, who is a tailer also was examined. After evaluating the evidence of PW1 and PW2, the petitioner and his wife respectively, the courts below concurrently placed reliance on the oral testimony of PW1 and PW2 and found that the respondent miserably failed to bring out any material or circumstances to doubt ## **R.C.R No.386 of 2017** ## **-: 7 :-** the bonafides of the need spoken to by them in their evidence. 8. Merely for the reason that the relationship between the landlord and the tenant was strained, it cannot be presumed that the eviction was intended with oblique motive, when there is sufficient evidence from th part of the petitioner to prove bonafides of the need. 9. In the instant case, the bonafide of the need has been proved beyond doubt by examining PW1 and PW2 and nothing has been brought out to discredit or disbelieve their evidence. If that be so, the strained relationship between the landlord and the tenant, even if it is true, cannot be taken as a ground to doubt the bonafides of the need. Therefore, we do not find any reason to interfere with the finding of the court below on bonafides of the need. 10. Going by the finding of the Rent Control Court, ## **R.C.R No.386 of 2017** ## **-: 8 :-** it is seen that in the Rent Control Petition itself the petitioner has specifically pleaded that he has returned from Gulf and at present he has no avocation for his livelihood and he has no income other than the income from the tenanted premises on the ground floor. Further, he specifically averred and clarified that he has not proceeded against the tenants of the ground floor as he does not want to forgo the income from the tenanted premises in the ground floor and he further stated that the tenanted premises in the ground floor would fetch more income than the income from the first floor and the petition schedule shop room in the first floor is sufficient and suitable for the proposed business. As rightly found by the appellate authority, the petitioner has given convincing reasons for not occupying the tenanted premises in the ground floor or proceeding against the tenants in the ground floor to get vacant possession of ## **R.C.R No.386 of 2017** ## **-: 9 :-** those rooms to start the business. Thus, the petitioner has already given special reason for not occupying any other shop rooms in the ground floor. 11. In view of the aforesaid special reason, even if it has come out in evidence that during the pendency of the appeal, the respondent has got vacant possession of another tenanted premises in the ground floor and he rented out the same to another tenant, the said event is of no sequence at all. In the above view, the appellate authority is justified in rejecting the application for appointing a commission. 12. Coming to the first proviso, the respondent has failed to prove that the petitioner has other suitable and vacant buildings of his own in his possession. Thus, as rightly found by the courts below, the claim for eviction under Section 11(3) is not hit by the first proviso to Section 11(3) of the Act. ## **R.C.R No.386 of 2017** ## **-: 10 :-** 13. Coming to second proviso, the respondent herself admitted in her evidence that she has not made any attempt to enquire the availability of other alternative buildings in the locality to shift her clinic. On the other hand, the petitioner has taken a Commission to ascertain the availability of vacant rooms in the locality and the Commissioner has filed Ext.C1 report which would show that several other vacant buildings are available in the locality for rent. The respondent is a Dental Surgeon, who is conducting a dental clinic, but no evidence has been produced to prove the average income from the Dental Clinic. This Court in **Shahul Hameed A. v. P.E.Abdu Razak [2016(5) KHC 820]** held that no tenant can claim a protection under the 2[nd] proviso to Section 11(3) of the Act, after hiding his income and evidence must be produced to prove his approximate income from the tenanted premises and approximate **-: 11 :-** ## **R.C.R No.386 of 2017** living expenses to find out dependency mainly on the income from the tenanted premises. In the instant case, the respondent contended that she has a good will as a Dental Surgeon and if she is evicted from the tenanted premises that will affect her practice and income therefrom. We are of the opinion that if the respondent is a Dental Surgeon having goodwill and good reputation, merely on the reason that she has shifted her Dental Clinic to another building that will not affect her practice or income. No doubt the patients who reposed confidence on her would follow her, whenever she is in the same locality. That apart, there is no substance in the said contention, particularly when the respondent herself admitted that she has not enquired as to the availability of other vacant buildings in the locality. Thus, the respondent has miserably failed to discharge the burden of proof under second proviso to Section 11(3) of the Act. ## **R.C.R No.386 of 2017** ## **-: 12 :-** 14. In above analysis, we do not find any kind of illegality or impropriety in any of the finding whereby the courts below passed an order of eviction under 11 (3) of the Act. Hence, this revision petition stands dismissed. The learned counsel for the respondent/tenant prayed for granting some time to surrender the vacant possession of the tenanted premises. Having regard to the entire facts and circumstances of the case, the respondent/tenant is given seven months' time from today to vacate the petition schedule building, on the following conditions. (1). The respondent/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 will vacate the petition schedule shop room within seven months from today. ## **R.C.R No.386 of 2017** ## **-: 13 :-** (2). The respondent/tenant shall deposit entire arrears, if any, within two months from today, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay 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 petitioner/landlord will be at liberty to proceed with the execution of the eviction order. Sd/- **K. HARILAL, JUDGE** Sd/- **A.M.BABU, JUDGE** STK **//TRUE COPY//** **P.A. TO JUDGE**