Dr. Pradeep v. Valsalakumari

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940** **RCRev.No. 139 of 2018** **AGAINST THE ORDER IN R.C.(OP)No. 12/2014 of MUNSIFF COURT/ RENT CONTROL COURT, KARUNAGAPPALLY DATED 30-06-2016** **AGAINST THE ORDER DATED 04.10.2017 IN RCA 23/2016 of THE COURT OF ADDL. RENT CONTROL APPELLATE AUTHORITY-VI, KOLLAM** ## **REVISION PETITIONER/ APPELLANT/ RESPONDENT :** **DR. PRADEEP, AGED 58 YEARS, S/O. BHASKARAN, PADMA BHAVANAM, MARUTHOORKULANGARA, THEKKUMURI, KARUNAGAPPALLY VILLAE, KARUNAGAPPALLY TALUK.** **BY ADVS. SRI.I.STEVENSON SRI.M.T.SURESHKUMAR** ## **RESPONDENT/ RESPONDENT/ PETITIONER :** **VALSALAKUMARI, AGED 64 YEARS, D/O. PARAMESWARAN PILLAI, DEVAM VEEDU, FROM KULANGARA VEEDU, AYANIVELIKULANGARA VADAKKUM MURI, AYANIVELIKULANGARA VILLAGE, KARUNAGAPPALLY TALUK - 690 518.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev.No. 139 of 2018** 2 ## **ORDER** ## **Annie John, J.** The revision petitioner is the tenant and being aggrieved by the judgment dated 04.10.2017 in RCA.No.23/2016 of the Rent Control Appellate Authority-VI, Kollam, this revision petition is filed. As per the impugned judgment, the learned District Judge dismissed the appeal filed by the petitioner herein and confirmed the order of eviction passed under Section 11(8) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [Hereinafter referred to as,'the Act'] in RC(OP).No.12 of 2014 of the Rent Control Court. The Rent Control Appellate Authority has relied on irrelevant considerations and ignored valuable items of evidence to non-suit the revision petitioner. The Appellate Authority has not objectively assessed the nature of the claim put forth by the landlady and also the _bona fides_ of her claim. **RCRev.No. 139 of 2018** 3 2. The Rent Control Appellate Authority dismissed the appeal filed by the petitioner vide judgment dated 30.06.2016 in RC (OP).No.12/2014. The Rent Control Court allowed the petition in RC (OP).No.12/2014 under Section 11(8) of the Act and directed the petitioner herein to hand over vacant possession of the petition schedule shop room within 3 months failing which the original petitioner is granted liberty to get it executed through the process of court. The Rent Control Petition has been filed by the respondent/ landlord for eviction under Section 11(8) of the Act. 3. According to the respondent/ landlord, she is the proprietress of kids wear business run by her as 'Sahana Boutique' and the same is conducted in Shop Nos.336 and 337 and also conducting a ladies wear business in shop No.332. The revision petitioner is the tenant of shop **RCRev.No. 139 of 2018** 4 No.331 and she needs shop No.331 also to expand her business. The landlady also filed RC (OP).No.11/2014 against three other tenants occupying rooms in the said building for the need of her son to start business in textiles. According to the petitioner, in RCP.No.12/2014, she is the absolute owner of a commercial building which was built by her in land admeasuring 12.8 ares. The concrete building is having 7 rooms that face towards the national highway lying on the western side. Those rooms were assigned with building numbers serially from south to north as III/331 to III/337. The northern most two rooms with Nos.III/337 and III/336 is being occupied by the landlady for her business in Kids Wear and further doing business in Ladies Wear in the 2[nd] room from southern side with No.II/332. After two rooms from southern side, there left a passage from the National Highway towards the vacant land. The petition schedule room having No. III/331 has been rented out to the petitioner herein as per a **RCRev.No. 139 of 2018** 5 registered Lease Deed dated 25.01.1993 for running a homoeopathic clinic by name 'Roshe Homoeo Medicals' for two years. The rate of rent was Rs.750/- per mensum. He continues to occupy the room by holding over by mutual consent. The rent was periodically enhanced and the tenant paying the prevalent rent at the rate of Rs.3,250/- per month. The petition schedule shop room is the southern most room in the building. According to the respondent/ landlord, due to considerable increase in the business of ladies Wear that is conducted in the adjacent shop room having No.III/332 of the petition schedule room, she requires the petition schedule shop room for the enlargement of her business. Further she has stated that she has no other vacant room in her possession. Again, it was stated that the revision petitioner is having his own building for shifting the business. There are vacant rooms available in the locality. The revision petitioner is not fully depending on the income **RCRev.No. 139 of 2018** 6 from the business in the petition schedule room. The lease arrangement, landlord tenant relationship and the rate of rent were admitted. 4. Per contra, the revision petitioner contended that the _bona fide_ requirement urged by the petitioner for additional accommodation is not correct and the petitioner and her son are not permanent residents of Karunagappally and are residing at Chennai where petitioner's husband is employed. The petitioner's son Gopish is B.Tech Degree holder and was employed in Chennai. His wife is also a Law Graduate. The space available for running 'Sahana Boutique Ladies Wear' in shop No.332 and 'Sahana Boutique Kids Wear' in shop No.336 and 337 is enough and more for conducting the business. The son of the landlady is not depending upon her. If the petitioner requires more space, she can complete the first floor and expand the business. Other shops are available in the vicinity for housing the consultation and **RCRev.No. 139 of 2018** 7 medical shop. 5. The evidence on the side of petitioner consists of testimony of PW1 and PW2 and Exts.A1 to A10 were marked. The evidence of respondent consists of the testimony of RW1 and Exts.C1, C1(a) were marked. According to the revision petitioner, the Rent Control Appellate Authority has not objectively assessed the nature of defence put forth by the landlady. 6. In fact, the landlord-tenant relationship between the revision petitioner and the respondent is admitted. It is also admitted that the respondent is running a business of Kids Wear 'Sahana Boutique' in shop Nos.336 and 337 and also a ladies Wear in Shop No.III/332 is also admitted. According to the respondent, she requires the petition schedule shop room for the expansion of her business. The revision petitioner contended that the need urged by the respondent is not _bona fide_ and it is only a **RCRev.No. 139 of 2018** 8 pretext for eviction. Moreover, the petitioner and her son are not permanent residents of Karunagappally and are residing at Chennai. Even if the respondent requires any additional accommodation, he can use the same after the completion of the first floor of the shop building. It is the case of the respondent/ landlady that her business in Shop No.III/3332 has considerable increase. So she wanted to expand the business by stocking high quality of textiles of the ladies. 7. It is true that the respondent has not produced any record to show the rate of increase for the sale of the Kids Wear and Ladies Wear, which is being run in the shop room. When the landlady was examined as PW1, she has deposed that her residential building and shop room situated in 40 cents of property and shop building faces west towards the National Highway and there is a vehicular passage in between shop room Nos.332 and **RCRev.No. 139 of 2018** ## 9 333 leading to the house building and property of PW1. As per the evidence of PW1, she requires additional accommodation for storing the stocks. As far as the eviction of room No.III/331 sought under Section 11(8) of the Act is concerned, the _bona fide_ need of the petitioner, the hardship that may be getting to the respondent is that there are no other vacant shop room available to pile his stock of Homoeo Medicines as he is a dealer of wholesale and retail business of the same. Ext.A10 report and the deposition of PW2 would prove that alternate accommodation for the respondent's purpose is available in the locality to shift his business. 8. By virtue of the dictum reported in _**2005 KHC 44 (Jose v. Antony)**_ , in a petition under Section 11(8) of the Act, the burden is on the tenant to establish the hardship that may be caused to him if he is evicted. The observation and findings of the learned Rent Controller **RCRev.No. 139 of 2018** 10 entered into under paragraph No.14 of the impugned judgment that _“RW1 in the box mainly relied upon his inconvenience to shift the business as there is wholesale and retail business of Homoeo Medicines from the petition schedule room. When the respondent has no case that he cannot conduct the wholesale and retail business in Homoeo Medicines in some other suitable buildings, it cannot be found that, if eviction is ordered, the_ _respondent is having more hardship than the advantage caused to the petitioner”_ . When eviction is claimed under Section 11(8) of the Act, defence of relying upon the income from the petition schedule premises as the main source of livelihood cannot be raised by the tenant. Though such a contention was raised when evidence was adduced by the revision petitioner, moreover, it was brought out in cross examination of RW1 that he is having a clinic attached to the residential building. According to him, it is being run by his wife. There is no substantial evidence to prove the **RCRev.No. 139 of 2018** **==> picture [12 x 8] intentionally omitted <==** same. The lower court had relied on the evidence adduced by RW1 and observed in paragraph 14 of the judgment. RW1 mainly relied upon his inconvenience to shift the business as there is wholesale and retail business of Homoeo Medicines from the petition schedule shop room. He has no other case that he has not able to conduct wholesale or retail business in the Homoeo Medicines in some other buildings. 9. The Appellate Authority also held that the finding entered by the lower court regarding this aspect is not under challenge. The revision petitioner has not argued much on the grounds as urged before us. It is proved by the respondent/ landlady that she is conducting the business in room No.III/332, III/336 and III/337. Ext.A1 is the Commission Report wherein the Commissioner has reported that the respondent/ landlady is conducting business in the room numbered as mentioned above. It has also reported that at the **RCRev.No. 139 of 2018** 12 time of his visit, the respondent was present in the shop room. So it is true that the respondent/ landlady was the conducting business and it is up to the respondent/ landlady to appoint any staff or authorise any person to conduct the business for and on behalf of her. The revision petitioner has not disputed the factum that the respondent/ landlady is conducting business in the shop rooms as mentioned above. It is up to the respondent/ landlady to expand her business as per her wish and the tenant cannot dictate how and what way the business of the petitioner can be expanded. It is reported by the commissioner as per Ext.C1 that in the room No.III/336 & III/337, the respondent is conducting business by name 'Sahana Boutique' and 'Sahana Ladies Wear' in room No.III/332 and it was also further proved that there are no vacant rooms available nearby the shop room. 10. It has held in **Subramonia Iyer v.** **Krishnaswamy [ILR 1981 (2) Ker.442]** that _“the_ **RCRev.No. 139 of 2018** **==> picture [12 x 8] intentionally omitted <==** _tenant cannot dictate landlord to remain content with smaller and less convenient premises in_ _preference to the tenanted premises which is more_ _spacious and more advantages. It is not for the court to find out whether even without such_ _additional accommodation, the landlord could some how manage to carry on”_ . From the above decision it is clear that the revision petitioner is not expected to dictate as to how the landlady must expand her business. ## 11. Section 11(10) of the Act contemplates that the _“Rent Control Court shall,_ _if it is satisfied that the claim of the landlord_ _under sub-sections (3), (4), (7), or sub-section_ _(8) is bona fide, make an order directing the_ _tenant to put the landlord in possession of the_ _building on such date as may be specified by the Rent Control Court, and if the Court is not so_ _satisfied, it shall make an order rejecting the_ _application”._ **RCRev.No. 139 of 2018** 14 12. It has also come out in evidence that the respondent/ landlady is occupying a part of the building and she requires the remaining part of the building as additional accommodation for her personal use and the revision petitioner has failed to establish that the shifting of the business will cause hardship to him. So, in the absence of such evidence, the revision petitioner is not entitled to get any relief as prayed for. In effect after evaluating the arguments of both parties, we are not inclined to interfere with the order of the courts below. The revision is only to be dismissed. Hence, we dismiss the revision. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given eight months' time to vacate the petition schedule building, on the following conditions : 1. The revision petitioner/ tenant shall file an affidavit, within two weeks from the date **RCRev.No. 139 of 2018** **==> picture [12 x 8] intentionally omitted <==** 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 eight months from today. 2. The revision petitioner/ tenant shall deposit the entire arrears, if any, within one month 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, and shall continue to pay the 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 respondent/ landlord will be at liberty to proceed with the execution of the eviction order. Sd/- ## **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM