Jijo C. Valyara v. Dolly Sathyapalan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** **RCRev..No.417 OF 2019** **AGAINST THE JUDGMENT IN RCA 8/2018 DATED 17-08-2019 OF ADDITIONAL DISTRICT COURT - III, ALAPPUZHA** **AGAINST THE ORDER IN RCP 22/2015 DATED 28-11-2017 OF PRINCIPAL MUNSIFF,ALAPPUZHA** ## **REVISION PETITIONER//APPELLANT/COUNTER PETITIONER:** **JIJO.C.VALYARA, AGED 36 YEARS S/O CHACKO, VALLYARA HOUSE, CHEMPUMPURAM, NEDUMUDI, ALAPPUZHA.** **BY ADVS. SMT.C.G.BINDU SMT.AJITHA C.G. KUM.K.J.SARANYA RAJ** ## **RESPONDENT/RESPONDENT/PETITIONER:** **DOLLY SATHYAPALAN, AGED 60 YEARS W/O SATHYAPALAN, PRATHIBHA, THIRUVAMPADY P.O.ALAPPUZHA-688 002.** **R1 BY ADV. SRI.K.N.VENUGOPALA PANICKER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RCRev..No.417 OF 2019** ## **2** ## **ORDER** ## **Harilal,J.** 1. **The revision petitioner is the tenant, who is confronting with the order of eviction passed under section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act by the Rent Control Court, Alappuzha in RCP No.22/2015 and confirmed by the Rent Control Appellate Authority, Alappuzha in RCA No.8/2018. The legality, propriety and regularity of the concurrent findings of the courts below granting an order of eviction under Section 11 2(b) and 11(3) of the Kerala Buildings (Lease ad Rent Control) Act, 1965 are challenged in** **this revision petition filed by the** ## **RCRev..No.417 OF 2019** ## **3** **tenant.** **2. According to the respondent, she needs the petition schedule building for conducting a restaurant business as she has no job or sufficient sources of income to earn her livelihood. She has no other buildings of her own in her possession to start the proposed business, whereas several other vacant buildings are available in the locality for shifting the business of the revision petitioner herein from the tenanted premises. It is further averred that the revision petitioner has other sources of income for his livelihood and he is not depending upon the income from the business in the** **tenanted premises. He is a dealer of** ## **RCRev..No.417 OF 2019** ## **4** **motor cycle manufactured by Royal Enfield Company and he is engaged in the sales of the said vehicles, servicing and sales of spare parts in another two buildings. Several other vacant buildings are available in the locality for shifting his business from the tenanted premises. Hence, he is not entitled to get protection under the second proviso to Section 11(3) of the Act. Therefore, she prayed for an order of eviction under Section 11(3) of the Act.** **3. The revision petitioner resisted the same and contended that the respondent has several other sources of income. She is the owner of an auditorium by name, Anjali Auditorium** **RCRev..No.417 OF 2019** ## **5** **at Kalarcode junction. There are other vacant buildings in her possession to start the restaurant business and she has no experience or ability to conduct hotel business. On the other hand, the revision petitioner is mainly depending upon the income from the business in the tenanted premises, though he is conducting dealership and service of Royal Enfield bikes in other two buildings. According to him, the need projected is not** _**bona fide**_ **and it is a ruse for eviction only and he is entitled to get protection, under the second proviso to Section 11(3) of the Act.** **4. After considering the evidence on record, the court below concurrently** **RCRev..No.417 OF 2019** ## **6** **found that the need projected is** _**bona fide**_ **, the** _**bona fides**_ **of the need is not negated by the first proviso and the revision petitioner is not entitled to get protection, under the second proviso to Section 11(3) of the Act.** **5. Heard the learned counsel for the revision petitioner.** **6. The sum and substance of the argument advanced by the learned counsel for the revision petitioner is that the courts below failed to appreciate the evidence** **on record in its correct perspective and the findings are perverse. No legal point has been raised before us for consideration.** **7. At the outset, it is to be borne in mind that the scope and extent of** **RCRev..No.417 OF 2019** ## **7** **consideration, under section 20 of the Act, is very limited and confined to legality, propriety and regularity of the findings of the courts below only. The revisional court is not permitted to re-appreciate the evidence on record on factual findings, unless the findings are perverse or illegal. Therefore, the sole question that arises for consideration in this revision petition is, whether there is any kind of illegality or perversity in the appreciation of evidence.** **8. It is the specific case of the landlord that she** _**bonafide**_ **needs the petition schedule building, to start a restaurant business. She has no employment or sufficient source of** **RCRev..No.417 OF 2019** **8** **income. No other vacant buildings are available in her possession to start the said business.** **9. The tenant contended that the landlord is very affluent, financially sound and there is no need to start a new business. She has an auditorium, by name, Anjali auditorium and is earning** **good income from the said business. In Abdul Rub v. Joby Tharian [2003 (3) KLT 733], this court held that 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 business. Further, in Shamsudheen v. Balan Nair [2014 (2) KLT 978], this court further held that even if the landlord is a man** **RCRev..No.417 OF 2019** ## **9** **of wealth and assets, his claim for eviction on the ground of** _**bonafide**_ **need cannot be rejected, if he is determinant for starting another business. Therefore, we find that the contention raised by the tenant, that the landlord is very affluent and financially sound and has no need to start a new business, would stand rejected.** **10. In order to prove the** _**bonafides**_ **of the need, the landlord was examined as PW1 and the courts below concurrently placed reliance on the oral evidence of PW1. We do not find any reason to interfere with the findings of the courts below on** _**bonafide**_ **need. Hence,** **there is no illegality in the finding** **RCRev..No.417 OF 2019** ## **10** **that the need projected is** _**bonafide.**_ **11. Coming to the 1[st] proviso, the tenant contended that the landlord has an auditorium, by name, Anjali auditorium. It is needless to say that the auditorium is not suitable for starting a restaurant business. No other evidence has been adduced to prove that the landlord has any other building. Hence, the courts below are justified in finding that the claim for eviction is not hit by the 1[st] proviso to section 11(3) of the Act.** **12. Coming to the 1[st] limb of the 2[nd] proviso, the burden is on the tenant and both limbs are conjunctive. The initial burden of proof is also on the tenant. Admittedly, the tenant is** **RCRev..No.417 OF 2019** **11** **conducting a dealership business and spare parts shop in two other buildings near to the petition schedule building. Therefore, it follows that he has other sources of income. No evidence has been adduced to prove that he is depending mainly on the income from the business in the tenanted premises. Thus, the tenant failed to discharge the burden of proof under the 1[st] limb of the 2[nd] proviso.** **13. Coming to the 2[nd] limb of the 2[nd] proviso, no satisfactory evidence has been adduced by the tenant to prove that no other suitable building is available in the locality to carry on his business in the tenanted premises. Though he has produced Ext.X1 series,** **RCRev..No.417 OF 2019** **12** **the same has no relevance to prove the non-availability of the building at the time of institution of the suit. Thus, the courts below are justified in rejecting Ext.X1. We find that the tenant miserably failed to discharge the burden of proof under the 2[nd] limb of the 2[nd] proviso also. There is no illegality or impropriety in the finding that the tenant is not entitled to get protection under the 2[nd] proviso to section 11(3) of the Act. We do not find any kind of illegality or perversity in the appreciation of evidence. Hence, this revision petition fails and the same is** **dismissed.** **14. Having regard to the nature of the** **RCRev..No.417 OF 2019** **13** **business, the revision petitioner is given six months' time from today to vacate the tenanted premises, on the following conditions:** **(1) The revision petitioner/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 they will vacate the tenanted premises within six months from today.** **2) The revision petitioner/tenant shall deposit the arrears of rent, which is not covered by O.S No.70/2018 pending before the Munsiff's Court, Alappuzha, within a period of two months from today, and the revision petitioner shall continue to pay the monthly rent, without default.** **(3) In the event of failure to comply** **RCRev..No.417 OF 2019** **14** **with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order.** **Sd/-K.HARILAl, JUDGE ma/27/11/2019 Sd/- C.S.DIAS, JUDGE** **/True copy/ P.S to Judge**