Haris T.M. v. Naveed K.K. and Shamseer K.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** **RCRev..No.421 OF 2019** **AGAINST THE JUDGMENT IN RCA 62/2015 DATED 28-02-2019 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT - II), THALASSERY ANDAGAINST THE ORDER IN RCP 262/2013 DATED 24-03-2015 OF RENT CONTROL COURT(ADDITIONAL MUNSIFF COURT, KANNUR)** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **HARIS T.M., AGED 62 YEARS, S/O. ABDURAHIMAN KUTTY, RESIDING AT THAMANNA, P.O.THANA, KANNUR-670 001.** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMED SHAFI** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** |**1**|**NAVEED K.K., AGED 45,**| |---|---| ||**S/O. K.E. HASSANKUNHI,**| ||**MEHERBAAD, THAYATHERU,**| ||**P O CIVIL STATION,**| ||**KANNUR-670 002.**| |**2**|**SHAMSEER K.K., AGED 42,**| ||**S/O. K.E.HASSANKUNHI,**| ||**MEHERBAAD, THAYATHERU,**| ||**P.O. CIVIL STATION,**| ||**KANNUR-670 002.**| **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev..No.421 OF 2019 2 ## **ORDER** ## **Harilal, J** The revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently by the courts below under Section 11(3) of the Kerala Building and Lease Control Act, 1965, [for short, 'the Act']. [The parties are referred to as in the original petition]. The petitioners/landlords have preferred R.C.P.No.262/2013 under Section 11(2)(a)(b) and 11(3) of the Act on the ground that they _bona fide_ require the petition schedule shop room for the purpose of conducting a ladies ready made garments shop for the 2[nd] petitioner's wife Sharmina, who is unemployed and having no avocation at all. It is further averred that the RCRev..No.421 OF 2019 3 respondent/tenant is not depending on the income derived from the business carried on in the petition schedule building for his livelihood and several other vacant buildings are available in the locality for him to shift the business from the tenanted premises. With the aforesaid averments, petitioners/landlord prayed for an order of eviction under Section 11(3) of the Act. 2. The respondent/tenant has resisted the claim for eviction, contending that the petitioners/landlords have other buildings of their own, for conducting their proposed business, and that he is mainly depending on the income from the business carried on in the tenanted premises and no other buildings are available in the locality to shift his business from RCRev..No.421 OF 2019 4 the tenanted premises and the alleged need is a ruse for eviction only. It is further contended that the petition schedule building is situated very close to the fish and meat market and thereby it is not at all suitable for conducting ready made garments shop. With the aforesaid averments the respondent/tenant prayed for dismissal of the rent control petition. 3. On the aforesaid rival pleadings, both parties adduced evidence and after considering the evidence on record, the rent control court has allowed the claim for eviction under Section 11(3) of the Act, on a finding that the need projected by the landlords-petitioners is _bona fide_ and, the claim for eviction is not negated by the first proviso to Section 11(3) of the Act and the RCRev..No.421 OF 2019 5 respondent/tenant is not entitled to get protection under the proviso to Section 11(3) of the Act. Therefore, the landlords-petitioners are entitled to get order of eviction under Section 11(3) of the Act. In appeal, the Appellate Court also, after re-appreciating the evidence on record, concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the legality and propriety of the findings, whereby the rent control court has passed the order of eviction, under Section 11(3) of the Act and confirmed by the appellate court, are under challenge in this revision petition. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. RCRev..No.421 OF 2019 6 5. Being a revision filed under Section 20(b) of the Act, this Court is not inclined to re-appreciate the entire evidence on record, unless the factual findings are perverse or unsustainable under law. The scope and extent of consideration in this revision are confined to legality, propriety and regularity of the findings whereby the court below have granted an order of eviction under Section 11(3) of the Act. 6. Bearing the above view in our mind, we have meticulously scrutinised the legality and propriety of the concurrent findings of the courts below under section 11(3) of the Act. 7. The learned counsel for the respondent/tenant submits that the petitioners/landlords have failed to prove the _bona fides_ of the need and also the RCRev..No.421 OF 2019 7 court below have failed to appreciate the evidence on record, in its correct perspective. According to the learned counsel for the respondent/tenant, even though the petitioners/landlord have specifically pleaded that their income from the partnership business is not sufficient; no evidence was adduced to their income from the prove partnership business. According to him, unless and until the volume of the income from the partnership business is proved, it cannot be said that the need projected in the petition is _bona fide_ . We are unable to accept the aforesaid contentions. In view of the legal position well settled by the Supreme Court in **P.I.Abdul Rub v. Jobby Tharian** [ **2003 (2) KLJ 1035]** wherein the Supreme Court RCRev..No.421 OF 2019 8 held that the law does not insist that a landlord having other sources of income shall not carry on other income earning activity or venture to start a new trade or business. In _**Mavilathu Shamsudheen v. Thanthonnikandiyil Balan Nair**_ **@** _**Narayanan Nair**_ **[2014 (2) KLT 978]** the Supreme Court further held that even if the landlord is a man of wealth and assets or affluence, his claim for eviction on the ground of _bona fide_ need cannot be rejected, if he is determined to start another new business. In view of the aforesaid decisions, we find that the present income of the petitioners/landlords is not a fact in issue, which requires consideration in a rent control petition. Even if the income from the partnership business is more than their requirements, it cannot be said RCRev..No.421 OF 2019 9 . that the need projected is not _bona fide_ Therefore, the absence of any kind of evidence in respect of the volume of income of the petitioners/landlords from the partnership business is of no consequence or significance at all. Hence, we reject the arguments of the learned counsel for the respondent/tenant in this respect. 8. The learned counsel for the respondent/tenant contends that the court below has failed to appreciate the evidence on record under the first proviso in its correct perspective. It is trite law that the burden of proof under the first proviso to Section 11(3) of the Act is on the tenant and only if the tenant discharges the burden of proof under the first proviso, the burden will shift and RCRev..No.421 OF 2019 10 the landlord is liable to give special reason for not occupying the vacant buildings of his own. In the instant case, going by the counter statement filed by the respondent/tenant herein, we find that there is no specific averments to the effect that the landlords/petitioners are in possession of a particular building. Hence, we find that the absence of the specific contention, disclosing identity of the vacant building, in the ownership and possession of the landlords-petitioners, under the first proviso to Section 11(3) of the Act, in the counter statement, is fatal to the respondent/tenant. Going by the impugned judgement passed by the appellate authority, we find that the appellate authority has meticulously gone through the evidence available under the RCRev..No.421 OF 2019 11 first proviso to Section 11(3) of the Act and found that the respondent/tenant miserably failed to other vacant in the prove any buildings possession of the landlords-petitioners. That apart, it has come out in evidence that the petitioners/landlords have given special reasons for not occupying the third floor of a building in a different locality at Thavakkara by stating that the said building is situated far away from the tenanted premises and the same is not suitable for conducting a tailoring- cum-ready made garments business. In the absence of any other evidence contrary to the aforesaid findings, we are not inclined to accept the contention that the courts below have failed to appreciate the evidence on record under the first proviso in its RCRev..No.421 OF 2019 12 correct perspective. Hence, we reject the said arguments also. No other point has been raised, before this Court, in this revision petition. 9. Coming to the second proviso, it is trite law that the burden is on the tenant to prove that he is entitled to get protection under the second proviso. In the instant case, no evidence has been adduced, to prove that the tenant is depending upon the income, which is being derived from the business in the petition schedule shop room and no alternative shop rooms are available in the locality to shift the business. It is trite law that both limbs under the 2[nd] proviso to Section 11(3) of the Act are conjunctive and the burden of proof is on the tenant. Thus, the tenant has miserably failed to RCRev..No.421 OF 2019 13 discharge the burden of proof under the second proviso to Section 11(3) of the Act. There is no illegality or impropriety in any of the findings, whereby the courts below have concurrently passed the order of eviction under the Act. Hence, this revision petition fails and it is dismissed accordingly. 10. At this juncture, the learned counsel for the respondent/tenant sought one year time to vacate the tenanted premises. Having regard to the nature of business, which is being conducted in the tenanted premises, the respondent/tenant is hereby granted six months' time from today to vacate the petition schedule building, on the following conditions: RCRev..No.421 OF 2019 14 - _(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 six months from today._ - _(2) The respondent/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_ RCRev..No.421 OF 2019 15 _petitioners/landlords will be at liberty to proceed with the execution of the eviction_ _order._ All the pending interlocutory applications will stand closed. **Sd/K.HARILAL, JUDGE sd/C.S.DIAS, JUDGE** AMV/27/11/2019