High Court of KeralaDivision Bench2007-11-06Revision petition dismissed (final disposition:...

Gopalakrishnan Nair v. P. Mumtaz Begue and Sunil Manzil

Case / Petition Number:RCR 19/2006 (RC Rev. No. 19 of 2006)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Balakrishnan Nair
T. R. Ramachandran Nair
Judgment Date: 2007-11-06
Court Decision / Holding: The revision petition is dismissed; the High Court upheld the appellate order and rejected the arguments challenging bonafide need and locality evidence.
Final Disposition: Revision petition dismissed (final disposition: dismissal)

Parties to the Case

Appellants / Petitioners

Gopalakrishnan Nair

Respondents

P. Mumtaz Begue
Sunil Manzil

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. S. Reghunath
• Sri Basant Balaji

Counsels for Respondents

• Sri D. Sajeev

Case Synopsis & Summary

This Kerala High Court revision concerns eviction under the Kerala Buildings (Lease & Rent Control) Act. The tenant, Gopalakrishnan Nair, challenged an appellate order confirming eviction under Section 11(3) on grounds of bonafide need by the landlady, P. Mumtaz Begue, who sought four rooms in Thiruvallom for her textile business after her husband’s return from the Gulf. The Rent Controller had allowed eviction under Section 11(3); the landlady did not appeal Section 11(2)(b)’s interim rejection, but the tenant did challenge Section 11(3). The appellate authority upheld the eviction, and the revision petition before the High Court was dismissed. The landlady’s case depended on the bonafide need for the rooms and availability of alternative premises in the locality. The tenant contended that the action to rent Room 409 to a reliable tenant undermined the bonafide need and that, even if grounds exist, rooms within the locality were not available for shifting his business. The Court examined Ext. C1 (the Commission report) showing a room within 50 meters but noted that Thiruvallom covers a large area, so distance may still fit within locality. Citing Thomas v. Joseph to interpret locality and Sadanandan v. Kunheen on the burden of proof, the Court declined to interfere, found room availability in the locality, and upheld the appellate order; the revision petition was dismissed.

Provisions of Law Cited

Section 11(2)(b)Section 11(3)Section 11(4)(ii)Section 11(4)(iii)second proviso to Section 11(3) (second limb)

Legal Doctrines & Maxims

Bonafide need / bonafide requirement
Locality concept in eviction petitions (especially in large areas)
Burden of proof on tenant to prove non-availability (negative proof may be discharged by asserting non-availability)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision contends that the landlord’s action to rent Room 409 to a reliable tenant at short notice undermines the bonafide need for eviction under Section 11(3). It challenges the appellate finding on the second limb of the second proviso to Section 11(3), arguing that, even if some rooms exist, they are not in the same locality or are not available for the tenant’s shifting needs. It stresses that no compelling proof shows that suitable rooms are within the locality; it relies on prior decisions to show that mere existence of a vacant room elsewhere does not prove locality availability, and argues that the burden shifts to the landlord’s proof of locality availability and bonafide necessity.

Contentions of Respondents

The landlady’s case rests on bonafide need for the four rooms and asserts that additional rooms are needed for her business post-Gulf. She argues that the Commission report identifies a room within 50 meters and that the locality (Thiruvallom) is large enough that a distance of 700 meters still lies within it. She asserts that she was not obliged to keep a room vacant during the proceedings and that any reliance on the fact that a room was let out is admissible as evidence of willingness to surrender possession when required. The respondents defend the appellate order and contend that the tenant has not shown lack of available rooms in the locality for shifting his business.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Thomas v. Joseph	1986 KLT 392	Mentioned Only	Cited to illustrate the concept of locality; not treated as controlling authority.
Sadanandan v. Kunheen	1991 (2) KLT 628	Positive	Cited to support the proposition that the tenant can discharge the burden of showing non-availability by negative assertion.
Sree Balaji Krishna Hardware Stores v. Srinivasaiah	1998 (1) RCR 235	Distinguished	Court states that principles in this Apex Court decision cannot apply to the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR.JUSTICE K.BALAKRISHNAN NAIR** **& THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 6TH NOVEMBER 2007 / 15TH KARTHIKA 1929** **RCRev..No. 19 of 2006()** **----------------------RCA.12/2003 of I ADDL. DISTRICT COURT, TRIVANDRUM RCP.42/2001 of PRL.M.C.,TRIVANDRUM** **....................** ## **REVISION PETITIONER/APPELLANT/COUNTER PETITIONER:-** **---------------------------------------------------------------------------------------** **GOPALAKRISHNAN NAIR, S/O.MADHAVAN PILLAI, KANJIRATHALA VEEDU, THIRUVALLOM, THIRUVALLOM P.O. TRIVANDRUM.** **BY ADV. SRI.G.S.REGHUNATH SRI.BASANT BALAJI** **RESPONDENTS: RESPONDENT/PETITIONER:-** **---------------------------------------------------------------** **P.MUMTAZ BEGUE, SUNIL MANZIL, THIRUVALLOM, THIRUVALLOM P.O. TRIVANDRUM.** **BY ADV. SRI.D.SAJEEV** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/11/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. Balakrishnan Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.NO.19 OF 2006** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 6th day of November, 2007** ## **O R D E R** ## **Balakrishnan Nair J.** The tenant is the revision petitioner and landlady is the respondent. The Rent Control Petition was filed for eviction under Sections 11(2)(b), 11(3), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act (hereinafter referred to as 'the Act' for short). The Rent Controller allowed the application under Section 11(3) of the Act only. The landlady did not file appeal against the rejection of eviction under Section 11(2)(b) of the Act. But the tenant appealed against the order of eviction under Section 11(3) of the Act. The appellate authority, by judgment dated 29.3.2005 in R.C.A. No.12/2003, affirmed the finding of the Rent Controller and dismissed the appeal. Hence, this revision challenging the said appellate order. 2. The pleadings of the landlady in the petition for eviction under Section 11(3) of the Act are the following: Her husband was working in the Gulf. Before going to Gulf, he was engaged in textile business. Now he has returned from the Gulf and she along with her husband, wants to start a RCR 19/2006 -2- business in textiles. For that, four rooms bearing door Nos.T.P.407 to 410 are necessary. The present Rent Control Petition is filed seeking eviction of rooms bearing door Nos.T.P.408 and 410. Claiming eviction of room No.T.P.No.407, R.C.P. No.29/2001 was filed. The landlady got vacant possession of room No. T.P. No.409, but the same has been rented out on a temporary basis to a tenant who had agreed to surrender possession at any time. The tenant is not depending on the income from the premises for his livelihood. There are other rooms in the locality available for shifting his business. So, in view of the bonafide requirement of the landlady and her husband for the rooms, she sought eviction. 3. The tenant resisted the Rent Control Petition contending that the need urged is only a ruse to evict him. He declined to enhance the rent as claimed and therefore the Rent Control Petition was filed. One of the rooms which the landlady got possession recently, i.e. room bearing door No.T.P.409, has been let out by her. That will belie her claim of bonafide need. It is also submitted that the tenant is depending for his livelihood on the income from the tenanted premises. There are no suitable rooms in the locality for shifting his business. 4. The Rent Controller raised the necessary issues. From the side of the landlady, she had got herself examined as P.W.1 and Exts.A1 to A7 RCR 19/2006 -3- were marked. From the side of the tenant, C.P.Ws.1 and 2 were examined. Ext.C1 commission report was marked as court exhibit. 5. As mentioned earlier, the finding of the Rent Controller under Section 11(3) of the Act and its affirmation by the appellate authority, alone is under challenge before us. Learned counsel for the petitioner submitted that the conduct of the respondent herein in renting out room bearing door No. T.P. 409 is a circumstance which should defeat the claim of the landlady for the rooms under Section 11(3) of the Act. Secondly, it is contended that both the authorities found that he is not eligible to get the protection of the second limb of the second proviso to Section 11(3) of the Act. The said finding is unsustainable, it is submitted. The authorities below heavily relied on the Commissioner's report, Ext.C1 to find against the tenant. But learned counsel for the petitioner submitted that even assuming the findings of the Commissioner regarding availability of rooms are correct, still those rooms are not available in the locality. According to him, the rooms found vacant, were at a distance of 700 meters from the tenanted premises. The same cannot be treated as one in the same locality. To explain the concept of locality, learned counsel for the petitioner relied on the decision of this court reported in **Thomas v. Joseph** (1986 KLT 392). Learned counsel further submitted that though the burden is on the RCR 19/2006 -4- tenant to show that rooms are not available in the locality, the same can be discharged by asserting that no rooms are available in the locality for shifting the business. In support of the said submission, a decision of this court in **Sadanandan v. Kunheen** (1991 (2) KLT 628) is relied on. In the said decision, it is held that since the tenant has to prove something negatively, the same can be done by asserting that no rooms are available in the locality. So, the petitioner prayed for setting aside the finding of the Rent Control Appellate Authority under the second limb of the second proviso to Section 11(3) of the Act. Learned counsel for the respondent, on the other hand, submitted that the Commissioner has reported that there is a room within 50 meters of the tenanted premises. It is also submitted that Thiruvallam locality is a large area and therefore the building at a distance of 700 meters will come within the locality. 6. In the deposition of P.W.1, he has stated that there are other rooms in the locality, where the tenant can shift his business. Practically, there was no cross examination on this point. In the evidence of R.W.1, he has only stated that no rooms are available in the locality for shifting his business. But he has not tendered any evidence to show that the report of the Commissioner is not correct. Though he has filed an objection, he has not chosen to take steps to examine the Commissioner and challenge his report. RCR 19/2006 -5- 7. In support of the first point raised by the petitioner regarding the action of the landlady giving on rent the room bearing door No.409 which she got possession, learned counsel for the petitioner relied on the decision of the Apex Court in **Sree Balaji Krishna Hardware Stores v. Srinivasaiah** (1998 (1) RCR 235). But in this case, we are of the view that the principles laid down in the said decision cannot apply. Here, the case of the landlady is that she had entrusted the room on rent to a reliable tenant who is willing to give vacant possession at any time. In such circumstances, the landlady need not keep her room vacant till all the cases are over and other rooms are also vacated. So, we find it difficult to accept the contention of the petitioner that the said conduct will disprove her bonafide requirement. Going by the evidence on record including the Commissioner's report, there are rooms available in the locality for shifting the business of the petitioner. But whether the rooms available are in the locality or not, is the only dispute raised by the learned counsel for the petitioner. Whether the room is in the locality is a matter which has to be decided with reference to the facts of each case. In a very large town a building within one or two kilometers will still be in the same locality. If it is a small place, a building within 500 meters may not be in the same RCR 19/2006 -6- locality. In this case, we find that there is no evidence from the side of the tenant on this aspect. Therefore, we are not in a position to interfere with the finding of the appellate authority as well as the Rent Controller that there are rooms available in the locality for the purpose of shifting the business of the tenant. 8. No other points were urged. In the result, the revision petition fails and it is dismissed. ## **(K. Balakrishnan Nair, Judge.)** **(T.R. Ramachandran Nair, Judge.)** **kav/** RCR 19/2006 -7- ORDER IN IA NO.116/2006 DISMISSED. 6/11/2007 SD/- K. BALAKRISHNAN NAIR, JUDGE SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE