Jaya v. K.K. Sulochana and John Panjikkaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934 RCRev..No. 276 of 2012 () ------------------------IN RCA.22/2009 of RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA IN RCP.5/2008 of RENT CONTROL COURT, CHERTHALA REVISION PETITIONER(S):/APPELLANT/2ND COUNTER PETITIONER ---------------------- JAYA W/O.BABUJI, SREEBHAVANATHIL, KLALAVAMKODAM P.O, UZHUVA MURIYIL, VAYALAR KIZHAKKU VILLAGE, CHERTHALA TALUK BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S):/PETITIONER AND 1ST COUNTER PETITIONER -------------- 1. K.K. SULOCHANA W/O.DINESAN, CHAKKALUCHIRA, CHERTHALA P.O CHERTHALA MUNICIPALITY, ALAPPUZHA DISTRICT 688524 2. JOHN PANJIKKARAN S/O.PANJIKKARAN, ROSE HOUSE. C HERTHALA KIZHAKKUM MURIYIL, CHERTHALA VADAKKU VILLAGE, ALAPPUZHA DISTRICT 688524 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI JJ. -----------------------R.C.R . NO. 276 OF 2012 ------------------------** Dated this the 6[th] day of August, 2012 ## **O R D E R** ## Ramakrishna Pillai,J The tenant is in revision. 2. The 1[st] respondent/ landlady sought eviction of the revision petitioner and the 2[nd] respondent from two shop rooms belonging to her under Section 11(3) and 11 (iv) of the Kerala Buildings ( Lease & Rent) Control Act, 1965 (hereinafter referred to as the Act for short). According to the 1[st] respondent/landlady, the two shop rooms which are part and parcel of the same building, are required for constructing a building after demolishing the shop rooms so that she could start a computer business in the new building. 3. The revision petitioner, who resisted the claim, RCR No. 276 /2012 2 contended that the need alleged is not bona fide and it is only a ruse for eviction. She further contended that the landlady did not obtain any permission from the Municipality for constructing the building as alleged. Her further contention was that the property owned by the respondent is sufficient to construct a building as shown in the plan produced by her. The optical shop set up in the tenanted premises is the sole source of livelihood of the petitioner and no other buildings are available in the locality to shift her business. 4. It was further contended that the learned Rent Control Court after raising proper points for trial permitted both sides to adduce evidence and on the basis of the evidence consisting of the oral testimony of PW1 to PW3, RW1 to RW3 as well as Exts.A1 to A5, Ext.B1 to B1(c), Ext.X1 and X2 and Ext.C1 commission report, ordered eviction under Section 11 (3) but repelled the prayer for eviction under Section 11 (4) (iv). 5. The revision petitioner took the matter in appeal before the Rent Control Appellate Authority, but without success. Thus she has come up in revision. 6. We have heard the learned counsel for the revision RCR No. 276 /2012 3 petitioner and we have perused the impugned judgment of the Appellate Authority as well as the the order of the Rent Control Court. 7. The specific case of the landlady was that she need the tenanted premises for constructing a new building after demolishing the existing shop rooms for the purpose of conducting a computer centre. According to her, she has no other sufficient building or property where such a building could be constructed. The case of the first respondent was substantiated through the oral evidence of PWs 1 and 2. She has also produced Ext.A3 Licence and Ext.A4 plan. There is evidence to show that the property lying just behind the shop premises is the property belonging to the husband of the landlady and the entire property is lying as a single contiguous plot. Because of this reason, both the courts below repelled the contention of the revision petitioner that the property where the petition schedule building is located is not suitable for the construction of a building as alleged by the landlady. Both the courts below came to the conclusion that the construction of a building as per Ext.A3 licence and Ext.A4 plan can be carried RCR No. 276 /2012 4 out only after demolishing the room in the possession of the revision petitioner as well as the room in the possession of the 2[nd] respondent. There is evidence to show that the landlady is jobless and she has the capacity to start proposed business. Considering the evidence placed on record, both the courts below came to the conclusion that the need alleged is bona fide and we are not prepared to hold otherwise. 8. Coming to the first proviso to sub section (3) of Section 11, the landlady has exhausted her initial burden by stating that no other suitable building is available in her possession to construct a building for the proposed business.. Neither the revision petitioner nor the 2[nd] respondent had any case that the first respondent has any other place or building for constructing a new building. So both the courts below found that the claim is not liable to be rejected under the first proviso to Section 11 (3) of the Act. 9. Coming to the second proviso, it is settled after the decisions in **Francis v. Sreedevi Varassier 2008 SAR (Civil) 894)** and **Kunhamma v. Akkali Purushothaman (2001 (3) KLT 99 (SC)),** that the burden is on the tenant to prove that RCR No. 276 /2012 5 he/she is entitled to the protection of both limbs of the second proviso to Section 11 (3). Though the revision petitioner contended that her sole source of livelihood is optical business set up in the tenanted premises, she could not adduce any cogent evidence to substantiate the same. Regarding the availability of alternative accommodation, both the courts found that the evidence of RW1 and Ext.X2 which is the building Vacancy Register cannot be acted upon to hold that there are no other suitable buildings are available in the locality as contended by the revision petitioner as RW1 has stated that X2 is blank as no reporting has been made regarding the vacant accommodation available in the locality. We are of the view that both the Rent Control Court and the Appellate Authority have appreciated the evidence in the correct perspective and have arrived at the correct conclusion. On going through the impugned judgment, we find that the same does not call for an interference under Section 2o as the same does not suffer from illegality, irregularity or impropriety. . 10. In the result the revision petition fails and the same is accordingly dismissed. RCR No. 276 /2012 6 11. When our decision was made known to the learned counsel for the revision petitioner, he requested for one and half years time to surrender the vacant possession of the tenanted building. We are of the view that we will not be justified in granting so much of time without hearing the respondent/landlady. Hence, issue notice to the 1[st] respondent/landlady by speed post for hearing her in the question of time if any to be granted to the revision petitioner for giving vacant possession of the tenanted premises. The execution proceedings, if any, shall be kept in abeyance for a period of two months. ## **PIUS C.KURIAKOSE, JUDGE** **A.V.RAMAKRISHNA PILLAI, JUDGE.** dpk RCR No. 276 /2012 7