Haneefa v. Padmini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 6TH DAY OF DECEMBER 2017/15TH AGRAHAYANA, 1939** **RCRev..No. 399 of 2017 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 283/2016 OF THE RENT CONTROL APPELLATE AUTHORITY/ ADDL. DISTRICT & SESSIONS COURT, VADAKARA DATED 26-08-2017** **AGAINST THE ORDER/JUDGMENT IN RCP 4/2015 OF THE RENT CONTROL (MUNSIFF) COURT, VADAKARA DATED 13-10-2016** **REVISION PETITIONER(S)/APPELLANT IN RCA/RESPONDENT IN RCP: ---------------------------------------------------------** **HANEEFA, S/O.ABOOBACKER, AGED 55 YEARS, MAVILATT HOUSE, MUZHAPPILANGAD AMSOM, DESOM, KANNUR TALUK, KANNUR DISTRICT.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **RESPONDENT(S)/RESPONDENT IN RCA/PETITIONER IN RCP: --------------------------------------------------** **PADMINI,** **D/O.KANARAN, AGED 50 YEARS, JITHIN NIVAS, VILLIAPPALLY AMSOM, MAYYANNUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673101.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.HARILAL & A.M.BABU, JJ. .......................................... RCR No. 399 of 2017 ........................................... Dated 6[th] December, 2017** ## **ORDER** ## **K.HARILAL, J.** This revision petition has been filed challenging the concurrent findings of the courts below granting an order of eviction under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act to the respondent herein (The parties are referred to as in Rent Control Petition). According to the petitioner, the petition schedule shop room belongs to her along with her mother and sister and she has preferred Rent Control Petition with the knowledge and consent of the other co-owners. She bona fide requires the petition schedule shop room for starting a business in Churidar materials and ready made items, exclusively for ladies. Further, it is averred that all the three children of the petitioner have grown up and settled in different places. Now she is free and sitting idle. She has no sufficient income of her own. In the said circumstances she wants to seek an avocation for 2 RCR No. 399 of 2017 earning income for her own and to spend time. Her husband was also working abroad and now he returned. He also offered his assistance and help to conduct the said business. They have no other buildings of their own in their possession to start the said business. But several other vacant rooms are available in the locality to shift the business of the respondent from the tenanted premises. 2. The respondent resisted the claim for eviction contending that there is no bona fide in the need projected in the petition and it is a pretext for eviction only. Earlier, the landlords filed RCP No.101/2006 under Sec.11 (2) (b) and 11 (3) on the ground that the petition schedule shop room is required for the occupation of the respective husbands of the petitioners 2 and 3 therein and they want to conduct a stationery business in the petition schedule shop room. Thereafter, all the landlords again filed RCP No.52/2009 under Sec.11 (2) (b) on the ground that they bona fide need the petition schedule shop room for conducting stationery, grocery, STD booth and photostat business. In that RCP also they contended that they intended to start the said business 3 RCR No. 399 of 2017 for eking out their livelihood. However, the Rent Control Court rejected both Rent Control Petitions and subsequently got confirmed by the order passed in revisions filed before this Court. Further, they contended that there is no need to start such a business as the petitioner is aged and wellsettled. She has other sources of income and her children are well-settled. Further, they claimed protection under the second proviso to Sec.11 (3) of the Act. According to him, he is depending on the income from the tenanted premises and no other alternative vacant buildings are available in the locality. 3. On the aforesaid contentions both parties adduced evidence and on appreciation of evidence the courts below concurrently found that the need projected in the petition is bona fide and the respondent is not entitled to get protection under the second proviso to Sec.11 (3) of the Act. 4. The main ground raised in this revision petition is that the present Rent Control Petition is hit by Sec.15 of the Act. Admittedly, earlier first Rent Control Petition was filed on the ground that the petition schedule building is required 4 RCR No. 399 of 2017 for starting business for the husbands of the landladies. In the second Rent Control Petition, the ground raised under Sec.11 (3) is that the petition schedule shop room is required for the landladies themselves for starting stationery, grocery, STD booth and Photostat etc. In the present Rent Control Petition, the need projected is for starting a ready made garments business, exclusively for ladies by the petitioner. The first Rent Control Petition was filed in the year 2006 and the second Rent Control Petition was filed in the year 2009. The present Rent Control Petition was filed after six years. In the Rent Control Petition itself she has well-narrated the circumstances under which she intends to start a business of her own. 5. Though the respondent has challenged the bona fides of the need contending that she is aged 49 years old and there is no need to start a business of her own at this age and the children of the petitioner are well-settled, they miserably failed to bring out any material evidence to doubt the circumstances under which she intended to start a business of her own. As rightly observed by the courts 5 RCR No. 399 of 2017 below age is not a bar for starting a business of her own and even if she has other sources of income that also will be taken as a ground to reject bona fides of the need. The law does not insist the landlord having other sources of income shall not carry on or start other income earning business or venture to start a new business **(2016 (2) KLT SN 124** . **(Kurian vs Sunny John))** 6. Similarly, in **2014 (1) KHC 817 (Mankada Susheela and others vs. Tharayil Balakrishnan)** this Court held that there is no age bar for starting a business and merely on the reason that the landlord is an aged person it cannot be said that the need for starting a business is without bona fides. In order to prove the bona fides of the need, the petitioner was examined as PW1 and she has testified bona fides of the need and the courts below concurrently found that the respondent failed to shatter the evidence of the petitioner. In the above view, we are not inclined to re-appreciate the evidence of PW1 and we do not find any reason to interfere with the findings of the courts below that the need projected in the petition is bona fide. 6 RCR No. 399 of 2017 7. Coming to the first proviso the respondent has no case that the petitioners have other vacant buildings of their own in their possession. As regards the protection under the second proviso to Sec.11 (3) the concurrent findings of the court below is that the respondent failed to discharge the burden of proof under the second proviso. It is trite law that the burden of proof under the second proviso is on the tenant. Even though the respondent contended that he is depending on the income from the business in the tenanted premises, there is no evidence, except the oral assertion of the respondent as RW1, to prove his approximate income from the business in the tenanted premises or his average living expense. In **Shahul Hameed vs Abdul Rasaq (2016 (5) KHC 820)** this Court held that no tenant can claim protection under the second proviso to Sec.11(3) after hiding his income and evidence must be produced to prove his approximate income from the trade or business and his approximate living expense. 8. Coming to second limb of the second proviso to Sec.11 (3) of the Act the respondent himself admitted in his 7 RCR No. 399 of 2017 evidence that he has not made effective or purposeful inquiry regarding availability of vacant rooms suitable for him in the locality. He has not verified the building tax assessment register to ascertain the availability of vacant rooms in the locality. Further he admitted that new buildings have come up in the locality. But he did not inquire as to the availability of that rooms for his use. Thus, he failed to discharge the burden of proof under the second proviso also. We do not find any kind of illegality or impropriety in any of the findings. 9. The learned counsel for the revision petitioner sought for sometime to surrender vacant possession of the petition schedule building. 10. Having regard to the submission made by the learned counsel, the revision petitioner is given time till 31.8.2018 to vacate the tenanted premises subject to the following conditions. The revision petitioner shall file an affidavit expressing an undertaking to vacate the premises on or before 31.8.2018. It shall also be undertaken, in the same affidavit, that no further time will be sought under any 8 RCR No. 399 of 2017 circumstance for vacating the tenanted premises. The affidavit shall be filed before the executing court, within a period of two weeks from the date of receipt of the copy of this order. The entire arrears of rent, if any, shall be paid within a period of one month from the date of receipt of the copy of this order. Rent shall be paid on or before the due date, till vacation of the tenanted premises. This Rent Control Revision is dismissed. We direct the parties to bear their respective costs. sd/- **K.HARILAL Judge** sd/- **A.M.BABU Judge** _sks/6.12.2017_ 9 RCR No. 399 of 2017