High Court of KeralaDivision Bench2012-12-05Revision petition dismissed; eviction upheld wi...

Jacob v. Saleena

Case / Petition Number:RC Rev. No. 337 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.T. Sankaran
M.L. Joseph Francis
Judgment Date: 2012-12-05
Court Decision / Holding: The Rent Control Revision is dismissed. The revision petitioner/tenant is granted six months to vacate the petition schedule building, subject to the tenant filing an undertaking by 15.03.2013 to vacate within six months and to pay arrears, while continuing to pay monthly rent until vacating.
Final Disposition: Revision petition dismissed; eviction upheld with six months to vacate on terms.

Parties to the Case

Appellants / Petitioners

Jacob S/o. Kokkan Devassy, Kizhakkechalakudy Village, Mukundapuram Taluk, Thrissur District

Respondents

Saleena W/o. Arakkal Malakkaran Davis, Kizhakkechalakudy Village, Mukundapuram Taluk, Thrissur District- 680307

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.K. Vipindas
• Smt. P.K. Priya

Counsels for Respondents

• Sri. K.S. Bharathan

Case Synopsis & Summary

Jacob, the tenant of a shop in Chalakudy, challenged an eviction order under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court had allowed eviction in favor of Saleena, the landlady, and the appellate authority dismissed the appeal; the Revision petition to the High Court was filed to challenge the concurrent findings. The petition schedule building, let since 1982 for a monthly rent of 550 (now 750), is sought to be used by the landlady’s youngest son who has been trained to run an Electronic Repair Shop. The landlady contends a bonafide need for her son’s business and asserts financial ability to start the venture. The tenant contends the need is a mere pretext to evict him, alleging landlady possesses another room and had previously sold vacant rooms to meet personal expenses, and urging the applicability of the first and second provisos to Section 11(3). The landlady and her evidence, including her son’s expertise and resources, were found credible by the authorities below. They also noted that the sale of other rooms was for meeting marriage and education expenses, a circumstance not defeating the present claim. The High Court did not find grounds to interfere with the factual findings. The revision petition is dismissed, and the tenant is granted six months to vacate subject to an undertaking and arrears payment.

Provisions of Law Cited

Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965First proviso to Section 11(3)Second proviso to Section 11(3)

Legal Doctrines & Maxims

Bonafide need
Burden of proof for second proviso to Section 11(3) of the Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the landlady’s bonafide need for a new business endeavor in the petition schedule building is not proven, citing that the landlady possesses other rooms and that she has previously sold vacant rooms to meet personal expenses, which undermines the bonafide claim. He argues that the first proviso to Section 11(3) requires unavailable or inordinate possession of alternate accommodation, and the second proviso must be proven by showing lack of vacant rooms and the tenant’s income supports his business, which he contends are not established. He also notes the landlady’s demand for higher rent as a separate factor, and asserts that no proper commission or Income proof has been presented to prove the second proviso’s limbs.

Contentions of Respondents

The landlady argues that her youngest son requires the petition schedule building to start an Electronic Repair Shop, supported by his training and the landlady’s financial means. She asserts the need is genuine and bonafide, and that selling other rooms was necessary to meet family expenses, not to defeat the claim. She contends there are no credible grounds to hold that she has any other suitable accommodation, and that the tenant has not established the second proviso’s limbs, nor proven a lack of vacant rooms in locality. The landlady also justifies the rent increase as permissible under law and not detrimental to the petition for eviction.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
John v. District Court	1992 (1) KLT 803	Positive	Cited by the authorities to support the proposition that a landlady’s demand for higher rent does not by itself defeat a bonafide eviction under Section 11(3).
Sukesini Amma v. Nagarajalu	2004 (2) KLT 427	Positive	Cited to reinforce the principle that higher rent can be pursued without negating the eviction for bonafide need under the Act.
Manu v. Bhanumathy	2004 (1) KLT 212	Positive	Cited to illustrate that sale of other rooms to meet expenses does not necessarily negate bonafide need for eviction.

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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.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 5TH DAY OF DECEMBER 2012/14TH AGRAHAYANA 1934 RCRev..No. 337 of 2012 () ------------------------RCA.82/2007 of ADDITIONAL DISTRICT COURT, IRINJALAKUDA RCP.5/2007 of RENT CONTROLLER, CHALAKUDY ## REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------------------- JACOB, S/O.KOKKAN DEVASSY, KIZHAKKECHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS.SRI.T.K.VIPINDAS SMT.P.K.PRIYA RESPONDENT/RESPONDENT /PETITIONER: --------------------------------------------------------- SALEENA W/O.ARAKKAL MALAKKARAN DAVIS KIZHAKKECHALAKUDY VILLAGE, MUKUNDAPURAM TALUK THRISSUR DISTRICT- 680 307. RR1 BY ADV. SRI.K.S.BHARATHAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 0512-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------R.C.R. No.337 of 2012** ## **----------------------------------------------Dated 5[th] December, 2012.** ## **O R D E R** ## **K.T.Sankaran, J.** The respondent filed R.C.P.No.5 of 2007 on the file of the Rent Control Court, Chalakudy, against the revision petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act'). The Rent Control Court allowed the Rent Control Petition, by the order dated 27.11.2007. The revision petitioner filed R.C.A.No.82 of 2007 on the file of the Rent Control Appellate Authority, Irinjalakkuda, challenging the order of the Rent Control Court. The Appellate Authority, by the judgment dated 17.7.2012, dismissed the appeal. The tenant has come up in revision against the concurrent findings rendered by the authorities below. 2. Hereafter, the parties are referred to as 'the landlady' and 'the tenant'. 3. The petition schedule building is situated in Chalakudy town. It was let out to the tenant by Lonappan, the predecessor-in-interest of the landlady on 15.1.1982 for a monthly rent of `550/-. The rent was enhanced and at present, R.C.R.No.337 of 2012 2 the monthly rent payable is `750/-. The tenant is conducting grocery business in the building. The landlady contended that her youngest son, who had completed his I.T.C. at Mookkannur wants to conduct an Electronic Repair Shop in the petition schedule building. The landlady stated that her son had undergone training in an electronic shop. 4. The tenant disputed the bonafide need put forward by the landlady. He stated that the need urged is only a ruse to evict the tenant. According to the tenant, the landlady is in possession of another room in the same building and therefore, the Rent Control Petition is hit by the first proviso to Section 11(3) of the Act. The tenant also raised a contention that on an earlier occasion, the landlady had got vacant possession of other rooms after filing the Rent Control Petition and those rooms were sold out by her. Another room, which the landlady got possession of, was let out to another tenant. The tenant also raised a contention that he is entitled to the benefit of the second proviso to Section 11(3) of the Act. 5. The landlady was examined before court as PW1 and her son, for whose need the Rent Control Petition is filed, R.C.R.No.337 of 2012 3 was examined as PW2. It has come out in evidence, as held by the authorities below, that PW2 is experienced to conduct Electronic Repair shop and that the landlady has sufficient resources for starting such a business. The authorities below found that the landlady sold other rooms, which she got vacant possession of, in order to meet the expenses for the marriage of her daughter and for the studies of her children. The landlady is a widow. The authorities below held that in the peculiar circumstances, the landlady was constrained to sell the rooms in the building. It was also held by the authorities below that the need put forward in the present Rent Control Petition is different from the need put forward in the earlier Rent Control Petition and that the sale of the other rooms would not defeat the claim put forward by the landlady in the present Rent Control Petition. As regards the first proviso to Section 11(3) of the Act, the authorities below held that the tenant has not shown that the landlady is in possession of any other room, as alleged by the tenant. As regards the claim for the benefit of the second proviso to Section 11(3) of the Act by the tenant, the authorities below held that the tenant failed to prove both R.C.R.No.337 of 2012 4 the limbs of the second proviso. It was noticed by the authorities below that it is well settled that the burden of establishing both the limbs of the second proviso to Section 11 (3) of the Act is on the tenant. 6. The tenant raised a contention that the landlady demanded increase in rent by issuing Ext.B8 notice and since the tenant did not accede to that demand, the Rent Control Petition was filed. The authorities below, referring to this contention, held that there is nothing wrong for the landlady to aspire for getting a higher rent and the demand for higher rent by itself would not defeat the claim under Section 11(3) of the Act. (See **John v. District Court** reported in 1992 (1) KLT 803 and **Sukesini Amma v. Nagarajalu** reported in 2004 (2) KLT 427) 7. In **Manu v. Bhanumathy** reported in 2004(1) KLT 212, a Division Bench of this Court held that the mere fact that the landlady sold one of the rooms which fell vacant does not mean that there is no bonafides in the plea for evicting another tenant. It was held that the landlady may be constrained to sell her building due to various reasons, R.C.R.No.337 of 2012 5 including the need to meet the expenses of the marriage of her daughter, for discharging liabilities etc. In the present case, it has come out in evidence that the landlady, a widow, was constrained to sell some of the rooms in the main building for the purpose of meeting the expenses of her daughter's marriage and for the education of her children. The authorities below accepted this version of the landlady. We do not find any ground to disbelieve her version. 8. As regards the claim for the benefit of the second proviso to Section 11(3) of the Act, the tenant did not take out a Commission to show that no vacant rooms are available in the locality nor did he examine the Accommodation Controller to prove the said fact. The tenant did not produce any document to show his income and to show that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule building. Though the tenant took pains to produce the documents under which the landlady sold the rooms in the building, he did not take any earnest attempt to produce his own accounts to show his real income, in order to establish the first limb of the second proviso to R.C.R.No.337 of 2012 6 Section 11(3) of the Act. 9. The authorities below considered all the aspects of the case in minute detail and held that the bonafide need put forward by the landlady is established and that she is entitled to get an order of eviction. The findings rendered by the authorities below are findings of fact. The revision petitioner/tenant has not shown that the findings rendered by the authorities below suffer from any illegality, irregularity or impropriety, warranting interference under Section 20 of the Act. 10. For the aforesaid reasons, we do not find any ground to interfere with the order and judgment passed by the authorities below. The Rent Control Revision is, accordingly, dismissed. 11. Lastly, the learned counsel appearing for the tenant submitted that sufficient time may be granted to the tenant to vacate the petition schedule building. The learned counsel submitted that at least a period of 1½ years is required for the tenant to either close down his business or to shift his business to another building. We do not think that the tenant R.C.R.No.337 of 2012 7 can be granted 1 ½ years' time to vacate. At the same time, we find it reasonable to grant six months' time to the tenant to vacate. Accordingly, six months' time is granted to the revision petitioner/tenant to vacate the petition schedule building, on condition that the tenant shall file an undertaking before the Rent Control Court on or before 15.3.2013, undertaking to vacate the petition schedule building within a period of six months from today and also on condition that the tenant shall pay the arrears of rent, if any, on or before 15.3.2013 and also continue to pay monthly rent on or before the 10[th] of every succeeding month till he vacates the building. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)