## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V**
**TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939**
**RCRev..No. 331 of 2016 ()**
**-------------------------AGAINST RCA 94/2013 of THE RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT) THALASSERY DATED 30-06-2016**
**AGAINST RCP 241/2012 of RENT CONTROLLER/PRL.MUNSIFF COURT, KANNUR DATED 29-01-2013**
**REVISION PETITIONER/APPELLANT/RESPONDENT:**
**-------------------------------------------**
**IDIKKALAKATH RASHEED S/O R.P IBRAHIM KUTTY, AGED 44 YEARS, RAULAS, THAVAKKARA, KANNUR 670 017.**
**BY ADVS.SMT.DAISY A.PHILIPOSE SRI.HARIDAS THAIKKANDY**
**RESPONDENT/RESPONDENT/PETITIONER:**
**-------------------------------------**
**PALLIKKANDI KHAMARU**
**D/O AHAMMED, AGED 51 YEARS, KANNUR 1 AMSOM, MUZHATHADAM WARD, KANNUR TALUK 670001.**
**R1 BY ADV. SRI.SHAJI THOMAS R1 BY ADV. SRI.K.BABU R1 BY ADV. SRI.H.KIRAN**
**THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **VPS**
**K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. ------------------------------------------**
## **R.C.R. No.331 of 2016 ----------------------------------------Dated this the 28[th] day of March, 2017**
## **O R D E R**
**--------------**
## _**Harilal, J.**_
- 1.The revision petitioner is the tenant against whom order of eviction has been passed under section 11(3) and 11(4)
- (v) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as 'the Act' for brevity). The said order stands confirmed in appeal filed by the revision petitioner. Thus, the concurrent findings of the courts below are challenged in this revision petition. The parties are referred to as in the RCP.
2. According to the petitioner/landlady, the respondent/tenant had ceased to occupy the petition schedule building continuously for the last one year. She requires the petition schedule building for starting a hardware shop by her husband, who is now retired from
R.C.R. No.331/2016 2 Government service. The husband of the petitioner/landlady is depending on her for the shop room. There are no other vacant shop rooms either in the possession of the petitioner/landlady or her husband to conduct the said business. Many other vacant rooms are available in the locality for the respondent/tenant.
3.The respondent/tenant contended that the bona fide need projected in the petition is a ruse for eviction only and the husband of the petitioner is engaged in real estate business. The respondent/tenant is conducting a business in hardware and paints in the petition schedule building and another room was taken on rent by the respondent/tenant from the sister of the petitioner. Now he intends to start a business in mobile phone and accessories, as the present business is not having much profit. It is further contended that he is mainly depending upon the income derived from the business in the petition schedule building and that no other vacant rooms are
3
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available in the locality to shift his business.
- 4.Heard the learned counsel for the petitioner/landlady and the learned counsel for the respondent/tenant.
- 5.It is the case of the petitioner/landlady that under section
11(4)(v) of the Act, the respondent/tenant ceased to occupy the petition schedule building for the last more than six months and at present the shop room is kept idle and she requires the petition schedule shop room for starting the business of hardware. In order to substantiate the said contention, the petitioner/landlady has taken a commission to ascertain the present status of the business in the petition schedule shop room. In Ext.C1 the Commissioner has reported that the petition schedule building is not being used as a regular business concern and the respondent/tenant was not available at the premises when the Commissioner had inspected the premises. The explanation from the part of the respondent/tenant was that at the time of commissioner's
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visit, he had gone to the Mosque for offering his mid-day prayer. As rightly observed by the Appellate Authority, even if the said explanation is accepted at its face value, there is no explanation for the respondent/tenant as to why he did not venture to get the commission report remitted for a second inspection. He could have taken steps for inspection of the premises by the Commissioner on the next day itself to bring out the point that he was conducting the business in the premises on a regular basis without interruption. In the above view, the Appellate Authority has relied on the commission report to arrive at a finding that the respondent/tenant has ceased to occupy the petition schedule building for more than one year. We find no reason to interfere with the said finding as the said finding was based on commission report.
6.That apart, the respondent/tenant has produced Exts.B1 to B3 statement of accounts to show that he has been conducting the business in the petition schedule building.
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But after examining the aforesaid documents, the courts below concurrently found that no reliance could be placed on Exts.B1 to B3, as those documents relate to business which is being conducted by the respondent/tenant in another shop room near the municipal bus stand. This Court is not inclined to interfere with the said finding.
- 7.In the absence of any materials to the contrary, for the aforesaid reason, we find that the courts below are justified in passing the order under section 11(4)(v) of the Act.
- 8.The next question to be considered is whether there is any illegality or impropriety in the findings whereby the courts below passed the order of eviction under section 11(3) of the Act. It is not disputed that the petitioner's husband has retired from the Government service. After examining the pleadings, the lower appellate authority observed that there is no successful denial to the point that PW1 is a dependant of the petitioner for the petition schedule
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building. As rightly observed by the Appellate Authority, the dependency between the family members means and includes moral, emotional and financial dependency and the same would be on a higher level, when considering the dependency between husband and wife. We do not find any reason to doubt the bona fide of the need as the petitioner's husband has no avocation other than his pension for livelihood.
- 9.As regards the availability of vacant room in the possession of the petitioner/landlady, it is the case of the respondent/tenant that the petitioner is a co-owner of some other shop rooms; but the respondent himself admitted that those shops rooms are occupied by tenants. Moreover, in **Asher v. Hassankutty Hajee** (2004 (2) KLT 446) it was held that the tenant is not entitled to get the benefit of the first proviso to section 11(3) since the landlord is only a co-owner of other buildings.
- 10.When the respondent/tenant gave evidence as RW1, he
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reiterated that the income derived from the business in the petition schedule building is the main source of income. But, no documentary evidence other than Exts.B1 to B3 had been produced to show the income derived from the petition schedule building. As has been held above, Exts.B1 to B3 are not reliable, as they relate to his business in another shop room situated near the municipal bus stand. Moreover, the respondent/tenant himself admitted in counter statement as well as in chief evidence that the income from the business in the petition schedule building was decreased considerably and therefore he was intending to start business of mobile phones and accessories in the petition schedule building. The said admission itself would give rise to an inference that now he is not depending on the income from the business in the petition schedule building. Needless to say, the burden is heavy on the respondent/tenant to prove that there is no other building available in the
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locality to shift his business. PW1 deposed that several vacant rooms are situated 3 metres away from the petition schedule building. But the respondent/tenant in his evidence admitted that he has not made any enquiry to ascertain the availability of vacant rooms to shift his business from the petition schedule building.
- 11.Thus, the only evidence as regards the non availability of alternative shop room is the oral assertion of the respondent/tenant in the witness box. To sum up, the respondent/tenant has miserably failed to discharge the burden of proof under the second proviso to section 11(3) of the Act. We do not find any reason to interfere with the concurrent findings of the court below to invoke the revisional jurisdiction of this Court under section 20 of the Act. Hence this revision petition is dismissed.
- 12.At last, the learned counsel appearing for the respondent urged for granting one year time to vacate the premises. Per contra, the learned counsel appearing for the
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petitioner opposed the said request and submitted that a reasonable time alone can be granted. Having regard to the facts and circumstances of the case, we are inclined to grant a reasonable time to the respondent to vacate the petition schedule building. The respondent shall vacate the petition schedule building within a period of six months on the following conditions:-
(i) The respondent shall file an affidavit, expressing unconditional undertaking that he will vacate the petition schedule building without any obstruction within six months, within two months from the date of receipt of the copy of this order.
(ii) He shall deposit the entire arrear, if any, before the Rent Control Court within a period of two months from the date of receipt of the copy of this order
(iii) The respondent shall continue to pay the rent, without default.
(iv) In the event of failure to comply with any of the conditions as aforesaid, the time granted to the respondent to vacate the premises would stand
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automatically vacated and the Rent Control Court will be at liberty to proceed with the execution proceedings.
**Sd/K.HARILAL, JUDGE**
**Sd/-**
**RAJA VIJAYARAGHAVAN V., JUDGE**
vps
