George v. Udayakumar K V

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941** **RCRev..No.199 of 2018** **AGAINST THE ORDER/JUDGMENT IN RCP 98/2015 of III ADDITIONAL MUNSIFF COURT, EKM (RENT CONTROL)** **AGAINST THE ORDER IN RCA 70/2016 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM DATED 12-01-2018** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **GEORGE AGED 52 YEARS, S/O.MICHAEL, KONNULLI OPTICALS, PACHALAM, KOCHI, NEAR LOURDS HOSPITALS, ROOM BEARING NO.45/1316.** **BY ADV. SRI.MATHEW SEBASTIAN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **UDAYAKUMAR K V** **AGED 45, S/O.K.P.VIJAYAN, KALAZHATHPARAMBU, PACHALAM, KOCHI, REPRESENTED BY HIS POWER HOLDER JAYASREE K.N., AGED 37 YEARS, W/O.UDAYAKUMAR K.V.** ## **BY ADV. SRI.A.T.ANILKUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.199 of 2018** **2** ## **ORDER** ## **Hariprasad,J** Revision Petitioner is aggrieved by the concurrent findings by the Rent Control Court and Appellate Authority that he is liable to be evicted under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (in short 'the Act'). 2. Respondent in this petition is the landlord. Respondent is admittedly the owner of the petition schedule room. Exts.B1 and B2 documents would show that the building was taken by the revision petitioner on rent from the erstwhile landlady who is the mother of the respondent. It is also evident from these documents that Rs.25,000/was paid by the revision petitioner to the erstwhile landlord and the parties agreed that interest accrued therefrom will be adjusted towards the rent. Ext.B3 is the certified copy of the judgment in RCP No.46/96 before the Rent Control Court, Ernakulam wherein it has been conclusively held that the erstwhile landlord was not entitled to evict the revision petitioner on the ground of Section 11(2) and Section 11(8) of the Act. It has become final that the revision petitioner is not bound to pay rent to the respondent as long as **RCRev..No.199 of 2018** **3** Rs.25000/- is retained by him. 3. It is the case of the respondent that his mother has settled the property in his name and he is the present owner of the building. Respondent further put forward a case that his wife wanted to start a tailoring unit in the petition schedule room. Case in the petition would show that at the time of filing the eviction petition, respondent and his wife were residing in a rented building where there was no sufficient space available for running a tailoring unit. Hence they urged that the petition schedule room should be evicted for bonafide need of starting a tailoring unit in it. It is also contended that the tenant is not doing any business in the petition schedule room and he does not live on the income derived from the trade or business in the petition schedule room. The landlord contended that other suitable rooms are available in the locality, if the revision petitioner wanted to shift his business. It is further contended that the revision petitioner started another business in opticals in a more prominent building close to the petition schedule room. 4. Revision petitioner opposed the eviction petition contending that the need put forward is not bonafide. It is also pointed out that the benefit of second proviso to Section 11(3) of the Act is available to the revision petitioner. The courts below considering the evidence on **RCRev..No.199 of 2018** **4** record agreed with the case put forth by the respondent and granted eviction of revision petitioner concurrently under Section 11(3) of the Act. 5. Heard the learned counsel for the revision petitioner and respondent. 6. In the revision two documents are produced by the revision petitioner to attack the bonafide need concurrently found by the authorities below. According to the learned counsel for the revision petitioner the case set up in the eviction petition by the respondent is that his wife wanted to start a tailoring unit in the petition schedule building as there was no space available for starting the business in the residential house in which they were residing at that time. One document produced by the revision petitioner is to show that a building has been purchased on 4.6.2015, ie; during the pendency of the proceedings before the Rent Control Court in the name of the respondent's wife. According to the learned Counsel they could have started the intended tailoring unit in the building and no explanation is forthcoming for suppressing this fact from the court. Another document produced is an information obtained under the Right to Information Act from Kottuvally Grama Panchayath showing that wife of the respondent is the owner of a building within that Panchayath. **RCRev..No.199 of 2018** **5** On the basis of these two documents the learned counsel for the revision petitioner contended that subsequent events would show that the need put forward has ceased to exist. In order to buttress these arguments reliance is placed on **Pasupuleti Venkateswarlu v. The Motor & General Traders** [ **AIR 1975 SC 1409] and Hasmat Rai and another v. Raghunath Prasad [AIR 1981 SC 1711]** to contend that subsequent events having a direct bearing on the landlord's right to evict should be taken note of by the courts in moulding the reliefs. We respectfully agree with the above view expressed by the apex court. However, we find that the revision petitioner cannot succeed relying on the above principle for the following reasons. 7. Learned counsel for the respondent contended that admittedly respondent and his family were residing in a rented house within Cochin Corporation at the time of filing the eviction petition. This fact is an undisputed one. Finding it difficult to continue their residence, they purchased a residential building at a place called Kottuvally which is about 30 kms away from the petition schedule building. It is also pointed out that the residential building is situated in a village setting. It cannot be exploited commercially for obvious reasons. Petition schedule building is within Cochin Corporation and in **RCRev..No.199 of 2018** **6** a prominent place. Therefore acquisition of a residential building at Kottuvally will not affect the bonafide need of the respondent, contended the learned counsel for the respondent. We are in agreement with this contention since the need of the respondent is to start a business in the petition schedule building. In order to reinforce his claim, it was averred in the petition that there was no space in the rented accommodation of the respondent, at the time of filing the petition. We do not find that the need was to start a business in the rented accommodation of the respondent, if it had sufficient space. The need was to occupy the petition schedule room for starting a venture. Therefore, subsequent events in this case will not affect the bonafide need put forth by the respondent. 8. Learned counsel for the revision petitioner contended that neither the settlement in favour of respondent nor acquisition of another building in the name of the respondent's wife were brought to the notice of the court timely and that suppression amounts to fraud on Court. In order to argue that decree obtained by committing fraud on court is void, a decision rendered by the Supreme Court in **S.P.Chengalvaraya Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs and others (AIR 1994 SC 853)** was cited. This preposition is also unchallengable. **RCRev..No.199 of 2018** **7** 9. But we are not impressed about this contention for two reasons. Firstly the settlement in favour of the respondent was during the pendency of Ext.B3 proceedings. Secondly, acquisition of a residential building at a far of place will have no effect on the bonafide need in this case and therefore, it cannot be said to be suppression of a material fact. 10. The authorities below have considered the evidence and rendered a factual finding that the bonafide need set up has been established. They also rendered a finding that the tenant failed to claim the benefit of second proviso to Section 11(3) of the Act. This Court, being a revisional court, has its own limitations regarding the reappreciation of the evidence. We do not find any illegality or impropriety in the approach by the court below in granting an order of eviction. In the result, the revision petition is found to be devoid of any merit and hence, it is dismissed. Revision petitioner is entitled to get back Rs.25,000/- without interest from the respondent as a condition for getting eviction. However, considering the entire facts, we grant a period of three months time to the revision petitioner to vacate the premises on fulfilling the following conditions Revision petitioner shall file an affidavit before the Rent Control **RCRev..No.199 of 2018** **8** Court, Ernakulam, within two weeks from today, unconditionally undertaking to vacate the premises within a period of three months from today without any demur. If the affidavit is not filed in time, the respondent is free to evict the revision petitioner on depositing Rs.25,000/- before the Rent Control Court. All pending interlocutory applications will stand dismissed. Sd/- **A.HARIPRASAD JUDGE** **Sd/-** **SHIRCY V JUDGE** **smm** **RCRev..No.199 of 2018 9** **RCRev..No.199 of 2018** **10** **A.HARIPRASAD JUDGE SHIRCY V. JUDGE**