KALLUMBRATH BABU v. THENGUMTHAREMMAL SANKARAN (DIED) and LRs ADDL.R2–R4

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 21ST DAY OF AUGUST 2017/30TH SRAVANA, 1939** **RCRev..No. 218 of 2013 (C)** **-------------------------AGAINST THE JUDGMENT IN RCA 92/2010 of RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT COURT, VATAKARA DATED 19-12-2012** **AGAINST THE ORDER IN RCP 19/2009 of MUNSIFF COURT/ RENT CONTROL COURT, NADAPURAM DATED 23-06-2010** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **-------------------------------------------** **KALLUMBRATH BABU, AGED 43 YEARS, S/O.ACHUTHAN,MERCHANT,MOKERI AMSOM,DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT.** ## **BY ADV. SRI.ZUBAIR PULIKKOOL** **RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------** *** THENGUMTHAREMMAL SANKARAN (DIED), AGED 78 YEARS, S/O.KANARAN,SWASTHAM,MOKERI AMSOM DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT-673516. (LRS IMPLEADED) ADDL.R2: JANU, AGED 64 YEARS, W/O. LATE SANKARAN, RESIDING AT THENGUMTHAREMMAL HOUSE, POST MOKERI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. ADDL.R3: SREEJITH, AGED 45 YEARS, S/O.LATE SANKARAN, -DOADDL.R4: SHAJI, AGED 44 YEARS, S/O.LATE SANKARAN, -DO(ADDL.R2 TO R4 ARE IMPLEADED AS THE LRS OF THE DECEASED R1 AS PER ORDER DTD.20/6/17 IN IA 1435/17)** **R1,ADDL. R2-R4 BY ADV. SRI.R.K.MURALEEDHARAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## _**OKB**_ ## K.HARILAL & A.M.BABU, JJ. --------------------------- ## R.C.R. No.218 of 2013 --------------------------Dated this the 21[st] day of August, 2017 ## O R D E R ## **Babu, J.** Tenant is in revision. His eviction was sought under section 11(2)(b) and (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”). The rent control court allowed eviction under both the grounds sought. The tenant filed appeal challenging the order of eviction passed under section 11(3) of the Act only. The appellate authority confirmed the order of the rent control court. 2. The parties are referred to in this order as they are arrayed in the rent control petition or as landlord and tenant. 3. The case of the landlord/petitioner goes as under. The room shown in the schedule to the petition was RCR.218/13 **:2:** tenanted to the respondent on 24/6/2008. A rent deed was executed. The agreed monthly rent is Rs 750/-. The respondent defaulted the rent even from the first month of tenancy. Despite the issuance of a registered notice demanding arrears of rent, the respondent did not clear the arrears. The petitioner has a son by name Sreejith. He is jobless. He intends to do the business of repairing of electrical goods. He is depending on the petitioner for accommodation. No vacant room is available in the possession of the petitioner to accommodate his son. The need of the petitioner is bona fide. The respondent is not depending mainly on the income derived from the business conducted by him in the tenanted premises. Vacant rooms are available in the locality for the respondent to shift his business. 4. The respondent opposed the rent control petition as follows: The rent agreed to be paid was not Rs 750/- per month, but Rs 450/- per month. It was enhanced to Rs 660/- RCR.218/13 **:3:** per month. The need alleged is not bona fide. There was an earlier rent control petition which was numbered RCP 28/2007 between the same parties. In that petition also bona fide need was alleged. But the need alleged was to accommodate Sreejith to do business in stationery goods. RCP 28/2007 was settled between the parties. As per the settlement it was agreed to enhance the rent. A fresh rent agreement was executed. Had there been bona fides in the need, the petitioner would not have settled the disputes and agreed to receive the rent at an enhanced rate. The respondent is entitled to protection under the 2[nd] proviso to section 11(3) of the Act. 5. Both sides adduced evidence before the trial court. P.W.1 and R.W.1 were examined. Exts A1 to A5 and B1 to B3 were marked. 6. On an appraisal of the entire evidence in the case the rent control court allowed the petition under section 11(2)(b) and (3) of the Act. The tenant conceded to RCR.218/13 **:4:** the order of eviction passed under section 11(2)(b). Therefore an appeal was filed challenging only the order of eviction passed under section 11(3) of the Act. The appeal was dismissed by the appellate authority holding that the need alleged was bona fide and that the respondent was not entitled to the protection under the second proviso to section 11(3) of the Act. 7. We have heard Sri.Zubair Pulikool and Sri. R.K.Muralidharan, the learned counsel for the tenant and the landlord respectively. 8. The ground under section 11(2)(b) of the Act is not a subject-matter in the revision. We therefore confine ourselves to the ground under section 11(3) of the Act. 9. PW1 is the petitioner himself. He gave evidence in support of the need alleged by him. Evidence has been let in by the tenant as RW1 disputing the bona fides in the need alleged. The courts below, the rent control court in particular, discussed in detail the evidence adduced by RCR.218/13 **:5:** both parties. We are not expected in a revision to reappraise the entire evidence in detail unless the courts below have committed any illegality, irregularity or impropriety in allowing eviction. 10. PW1 has deposed to the need alleged by him. He has stated that his son who is unemployed wants to do business for a livelihood. PW1 therefore has decided to evict the tenant to enable his son to occupy the scheduled room for doing the proposed business of repairing of electrical goods. Nothing was brought out in crossexamination to discredit the evidence of PW1. 11. The bona fides in the need was challenged by the tenant raising a twofold contention. The first was that the son of the petitioner did not have the experience to do the business proposed. For valid reasons the rent control court did not accept the said contention of the tenant. We also hold that the alleged inexperience of the son of the petitioner in doing the proposed business is not a reason to RCR.218/13 **:6:** suspect the genuineness of the need. If he is inexperienced, he can avail of the service of employees in doing the repair of electrical goods. 12. The next contention was the main contention raised by the respondent. Admittedly there was an earlier rent control petition. It was numbered RCP 28/2007. One of the grounds alleged therein was bona fide need. The need alleged was to accommodate the very same son of the petitioner to conduct a stationery shop. An order under section 12(3) of the Act was passed against the tenant. Thereafter Ext A1 rent agreement was executed between the very same landlord and tenant. The tenanted premises was let out under Ext A1 on a monthly rent of Rs 750/-. In view of the execution of Ext A1, it was contended that the present need lacked bona fides. 13. The learned counsel for the tenant submits that the earlier rent control petition and the circumstances which led to the execution of Ext A1 agreement were RCR.218/13 **:7:** suppressed by the landlord. The learned counsel further submits that there has been no pleading explaining the decision to tenant the building to the very same tenant. In this connection we refer to the evidence on the point discussed by the rent control court. The said court said that the circumstance under which the building had been let out again to the respondent irrespective of an order of eviction passed under section 12(3) of the Act had been explained in detail in the affidavit filed by P.W.1 in lieu of his examination-in-chief. The learned rent controller specifically pointed out that no single question challenging the explanation was put to PW1 in cross-examination. That means the evidence of PW1 explaining the circumstance which led to the letting of the building again to the very same tenant was left untouched in cross-examination. If that be so, the only possible conclusion is that the explanation is not only proved, but also admitted by the tenant. The learned counsel for the tenant has submitted RCR.218/13 **:8:** that no amount of evidence without pleadings shall be looked into and therefore the explanation offered in the affidavit of PW1 should be eschewed. But it is trite that the law of pleadings as contained in orders VI to VIII of the Code of Civil Procedure is not applicable to a rent control proceedings. Therefore the explanation offered by PW1 can be taken note of. The fact that the explanation was not challenged in cross-examination should also be taken note of. We find that PW1 has properly explained the letting of the building to the very same tenant. 14. We are not in a position to accept the argument of the learned counsel for the tenant that the landlord purposefully suppressed the filing of the earlier rent control petition and its culmination. We do not consider that there was an intentional suppression. Strictly it was not necessary to plead as to what happened to the earlier rent control petition. That perhaps is the reason why the rent control petition does not mention about RCP RCR.218/13 **:9:** No.28/2007. 15. The learned counsel for the tenant relied on the decision of the apex court in **Mohammad Ahmad v. Atma Ram Chauhan [AIR 2011 SC 1940].** The Supreme Court has stated in the said decision that the landlords used to seek eviction of their tenants as the landlords are not getting proper rent. The Supreme Court issued certain guidelines. Guide line no.5 alone is important in the present case. The Supreme Court holds that if the present and prevalent market rent assessed and fixed between the parties is paid by the tenant, then the landlord shall not be entitled to bring any action for the eviction of the tenant at least for a period of five years. The reported decision does not come to the rescue of the respondent for two reasons. The first is that there has been no fixation of fair rent or market rent in the present case. What the Supreme Court has said is that guideline no.5 would be applicable if the market rent is assessed and fixed. There was no such RCR.218/13 **:10:** assessment and fixation of fair rent between the parties in the present case. The second reason is that the tenant is entitled to protection from eviction only if he paid the rent promptly. Here we have a tenant who defaulted the rent and even suffered an order on the ground of rent arrears. The reported decision is not therefore helpful to the respondent. 16. It is admitted that in RCP 28/2007 the business proposed to be done in the premises was a stationery shop. But the allegation in the present rent control petition is that the business proposed is repairing of electrical goods. The said argument also does not impress us inasmuch as the bona fides in seeking eviction of the tenant cannot be said to be destroyed simply because of the change in the business proposed to be conducted. The concurrent finding of the courts below that the need alleged by the petitioner is bona fide is only to be confirmed. We do so. 17. As pointed out by the appellate authority, the RCR.218/13 **:11:** tenant did not point out any vacant building in the possession of the landlord to accommodate his son. Therefore the first proviso to section 11(3) of the Act is not attracted. 18. The courts below found that the tenant failed to prove both the ingredients of the second proviso to section 11(3) of the Act. There has been no challenge against the said finding of the courts below. The revision is without merit. It only deserves a dismissal. 19. At this juncture the learned counsel for the tenant has submitted that his client may be given some time to vacate the premises. The learned counsel requests for a period of one year to vacate the premises. That is too a long period. At the same time we do consider the fact that the tenant may require a breathing time to shift his business to another premises. We are therefore inclined to grant a period of eight months from today to the tenant to vacate the premises subject to the conditions we impose. RCR.218/13 **:12:** 20. The revision is dismissed. In the circumstances of the case, we direct the parties to suffer their own costs. The tenant is given time till the last day of April 2018 to vacate the premises subject to the following conditions. The tenant shall file an affidavit before the rent control court unconditionally undertaking to vacate the premises on or before 30/4/2018. The affidavit shall be filed within a period of two weeks from today. The entire arrears of rent as on the date of payment shall be cleared within a period of one month from today. Rent in future till vacating the premises shall be paid on or before the due date. Sd/- K.HARILAL, Judge. Sd/A.M.BABU, Judge. okb.