Jaison v. Safiya

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940** **RCRev.No. 201 of 2018** **AGAINST THE ORDER IN RCP 8/2012 of THE RENT CONTROL COURT (MUNSIFF COURT), ALATHUR DATED 16-08-2016** **AGAINST THE JUDGMENT IN RCA 26/2016 of THE RENT CONTROL APPELLATE AUTHORITY (II ADDL. DISTRICT JUDGE), PALAKKAD DATED 28-02-2018** **REVISION PETITIONER/ RESPONDENT/ RESPONDENT : ---------------------------------------------** **JAISON, AGED 51 YEARS, S/O. MATHAYI, RESIDING AT EDAVAMPARAMBIL, PUTHIYAMKAM, AMSOM DESOM, ALATHUR TALUK.** **BY ADV.SRI.BABY MATHEW** **RESPONDENT/ APPELLANT/ PETITIONER :** **-----------------------------------** **SAFIYA,** **AGED 45 YEARS, D/O. SAHEED SAHIB, RESIDING AT PALLIPARAMBIL, KATTUSSERY, AMSOM DESOM, ALATHUR TALUK.** **BY ADV. SRI.T.C. SURESH MENON, CAVEATOR** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** ## **RKM** ## **K. HARILAL & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **R.C.R. No. 201 of 2018** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 25[th] day of June, 2018** ## **ORDER** ## _**K. Harilal, J.**_ The revision petitioner is the tenant in R.C.P.No.8/2012 of the Rent Control Court, Alathur. The aforesaid rent control petition was filed by the respondent herein under Section 11(2) (b) and 11(3) of the Kerala Buildings Lease and Rent Control Act (hereinafter referred to as 'the Act'). The parties are referred to as in the rent control petition. According to the petitioner, she _bona fide_ needs the petition schedule building for setting up a stationery business for her husband, who is a dependent on her for the petition schedule building. Her husband was working abroad and now he returned from there and having no avocation at present. Their son also wants to join with the proposed business. Even though she is in vacant possession of another room in the first floor, that room is in a dilapidated condition and not suitable for setting up a stationery business. The room which is situated R.C.R. No. 201 of 2018 2 on the immediate west of the petition schedule building is in the possession of another tenant and she has already taken steps to get the said room also evicted from that tenant. No other vacant rooms are available in the possession of the petitioner. The respondent is not depending on the income from the business in the petition schedule property and several other vacant rooms are available in the locality. So also, rent was in arrears from June, 2011 onwards and the rent is Rs.850/- per month. On the above aforesaid premises, the petitioner prayed for an order of eviction under the under the Sections 11 (2)(b) and 11(3) of the Act. 2. The respondent resisted the claim for eviction under both grounds contending that the need projected in the petition is a ruse for eviction only. The petition has been filed with a view to get enhancement in the rate of rent or to let out the building to third party for higher rent. He is prepared to pay off the arrears of rent. The petitioner's husband was working abroad and he has good savings. He does not have any intention to start the business. He is mainly depending upon the income derived from the business which is being carried out in the petition schedule building. No other vacant rooms are available in the locality to R.C.R. No. 201 of 2018 3 shift the business, which is being conducted in the tenanted premises. With the aforesaid pleadings, the respondent prayed for dismissal of the rent control petition. 3. On the rival pleadings, both parties adduced evidence which consists of the oral testimony of PW1 and RW1 and documentary evidence Exts.A1 to A3. On evaluation of the aforesaid evidence on record, the rent control court dismissed the petition mainly on the findings that there was no sufficient pleadings to the effect that the husband of the petitioner is a dependent on her and the need projected in the petition is not _bona fide_ . Feeling aggrieved, the petitioner preferred R.C.A.No.26/2016 before the Rent Control Appellant Authority at Palakkad. After re-appreciating the evidence on record, the Rent Control Appellate Authority allowed the rent control petition on a finding that there are sufficient pleadings to show the dependency of the husband on the petitioner and the need projected is _bona fide_ . This revision petition has been filed challenging the divergent findings of the courts below on _bona fide_ need and pleadings on dependency. 4. Heard the learned counsel for the revision petitioner R.C.R. No. 201 of 2018 4 and the learned counsel for the respondent. The learned counsel for the revision petitioner/ tenant advanced arguments to justify the findings whereby the rent control court rejected the claim for eviction on _bona fide_ need. On the other hand, the learned counsel for the respondent advanced arguments to justify the findings thereby the appellate authority reversed the findings of the rent control court. In view of the arguments at the Bar, the question to be considered is whether there is any illegality or impropriety in the findings of the appellate authority that the pleadings with respect to dependency are sufficient and the need projected in the petition is _bona fide_ . 5. The scope and extent of consideration in a rent control revision petition is confined to legality, propriety and regularity of the findings of the court below only. It is true that in instant case, the findings of the courts below are divergent. The rent control court has found that there is no sufficient pleadings, which would disclose the alleged dependency of the husband of the petitioner on her. No doubt that the requirement of the Section can be satisfied only if it is pleaded and proved that the concerned member of the family is a dependent on the landlord for R.C.R. No. 201 of 2018 5 the petition schedule building. The word “dependent” means a person who would in the normal course, look at the landlord/ landlady to provide him with the facility of a building possessed by the landlord/ landlady. The husband can said to be dependent on the wife for his needs. As rightly pointed out by the appellate authority in paragraph 4 of the petition, it is clearly pleaded that the husband is a dependent on the wife/ landlady as he was returned from his employment abroad due to his ill health and presently he has no avocation at all. Further it is specifically pleaded that at present, he has no sources of income and they jointly taken decision to start a stationery business for eking out their livelihood. So also, no other vacant room is available in the possession of the petitioner. Their son also wants to join in the said venture. It is trite law that meticulous pleadings are not required in a rent control petition and essential pleadings alone are sufficient _**[Fathimabeevi v. Stella John (2006 (2) KLT 285)]**_ . We also find that in the rent control petition, there are sufficient pleadings which would disclose the dependency of the husband on the petitioner for the tenanted premises. At this juncture, it is to be remembered that dependency is not on the person and R.C.R. No. 201 of 2018 6 dependency is on the tenanted building. The respondent has no case that the husband has any other vacant building in his possession. Thus, we find that the appellate authority is justified in reversing the findings of the rent control court with respect to the dependency of the husband. 6. Coming to the _bona fide_ need, it is a case of the petitioner that her husband was working abroad and he returned from Gulf county due to his ill health and at present he has no avocation at all and he has no sources of income to eke out livelihood and they have jointly taken a decision to start a stationery business in the tenanted premises. After evaluating the evidence of PW1, the appellate authority specifically held that she stood by the pleadings, in cross examination and nothing was brought out to make her evidence unbelievable or untrustworthy. We do not find any reason to take a different view particularly when the respondent has no case that the husband of the petitioner has any other sources of income or avocation. Thus the Appellate Authority is justified in finding that the need is _bona fide_ . R.C.R. No. 201 of 2018 7 7. Coming to the first proviso, in the rent control petition itself, the petitioner has specifically admitted that though they are in vacant possession of another room in the first floor of the same building, that room is not suitable for starting the business as it is in a dilapidated condition. The appellate authority has specifically observed that during the cross examination, respondent himself has admitted that the said building is in a dilapidated condition. In the counter statement filed by the respondent, there is no specific pleadings disclosing the identity of the shop room, which are allegedly in the vacant possession of the petitioner. But during the course of trial, they made an attempt to point out that the petitioner got possession of a building situated near the old bus stand at Alathur and the said building was sufficient to set up a stationery business for the husband of the landlady. In the course of examination of PW1, she has stated that she is having only a nominal share in the above said shop room and that the said shop room is occupied by her elder brother Sri.Abdul Jaleel, who is also a co-owner of the shop room and he is doing lottery business in the above said shop room. In R.C.R. No. 201 of 2018 8 view of the aforesaid explanation, the appellate authority is justified in finding that it cannot be said that PW1 is the exclusive owner of the said building, which is now in occupation of Abdul Jaleel, particularly when the aforesaid assertion of PW1 was not properly controverted by the respondent in cross examination. In the above view, the appellate authority is justified in finding that the claim for eviction is not hit by the first proviso to Section 11(3) of the Act. 8. Coming to 2[nd] proviso, the burden of proof is on the tenant and unless the twin conditions contemplated under the 2[nd] proviso are satisfied by adducing evidence, the tenant is not entitled to get the protection under the 2[nd] proviso also. In the instant case, no evidence has been adduced to show the approximate income which is being derived from the business in the tenanted premises. So he was not produced any documentary evidence to prove the volume of business carried on in the petition schedule property. In the course of examination, RW1 has stated that he is selling cool drinks, tea and stationery articles etc. in the petition schedule room and he is getting Rs.5000/- to Rs.6000/per month from his business. As rightly held by the appellate R.C.R. No. 201 of 2018 9 authority, the oral assertion of the tenant alone is not sufficient to prove that he is mainly depending on the income derived from the business in the petition schedule building. It is pertinent to note that he himself had admitted that he does not have the license from the Panchayath to carry on the business. In this context, the specific case of the landlady that the respondent is the Real Estate Broker and he is also having money lending business assumes significance. Thus, it is needless to say that the respondent has not discharged the burden of proof under the first limb of the 2[nd] proviso to Section 11(3) of the Act. 9. Coming to the 2[nd] limb of the 2[nd] proviso, no evidence has been brought out to prove that no other vacant buildings are available in the locality to shift the business in the tenanted premises. Moreover, RW1 admitted that she did not make any enquiry as to whether any rooms are available in the locality wherein the tenanted premise is situated. RW1 did not make any enquiry with the Accommodation Controller as to know whether any vacant rooms are available in the locality. The tenant has failed to prove that no other alternative buildings are available in the locality to shift his business from the tenanted premises. R.C.R. No. 201 of 2018 10 The respondent has failed to discharge the burden of proof under the 2[nd] limb of 2[nd] proviso also. 10. In the above analysis, we find that the Rent Control Appellate Authority has rightly appreciated the evidence on record and reversed the findings of the Rent Control Court. We do not find any kind of illegality or impropriety in the impugned findings thereby the appellate authority had passed the order of eviction under Section 11(3) of the Act. 11. The learned counsel for the revision petitioner/ tenant prayed for sometime to vacate the tenanted premises. The learned counsel for the respondent/ landlord submits that reasonable time can be granted for the same. 12. Having regard to the submission at Bar, the revision petitioner/ tenant is given six months' time from today to vacate the tenanted premises on the following conditions :- 1. The revision petitioner/ tenant shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of the copy of this order. 2. The revision petitioner/ tenant shall file an affidavit expressing an undertaking that he is ready and willing R.C.R. No. 201 of 2018 11 to vacate the tenanted premises within a period of six months' from today. 3. The affidavit shall be filed within a period of one month from the date of receipt of the copy of this order. 4. In case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent/ landlord is entitled to enforce the order. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM