Kanakappan T.C. 26/598 v Ambika Devi and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 9TH DAY OF DECEMBER 2014/18TH AGRAHAYANA, 1936 RCRev..No. 271 of 2014 () -------------------------AGAINST THE JUDGMENT IN RCA 15/2013 OF II ADDL.RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM DATED 02-07-2014 AGAINST THE ORDER IN RCP 52/2011 OF ADDITIONAL MUNSIFF (RENT CONTROL) COURT, THIRUVANANTHAPURAM DATED 29-06-2013 REVISION PETITIONER(S)/RESPONDENT/RESPONDENT IN RCP: ------------------------------------------------------------------------------------- KANAKAPPAN T.C.26/598, PMK BUILDINGS, OOTTUKUZHY THAMPANOOR, THIRUVANANTHAPURAM. BY ADV. SRI.VPK.PANICKER RESPONDENT(S)/APPELLANTS/PETITIONERS IN RCP: ---------------------------------------------------------------------- ## 1. AMBIKA DEVI W/O.LATE PARAMESWARAN NAIR, 'THIRUVATHIRA', TRA-451 JAI NAGAR, THIRUMALA, THIRUVANANTHAPURAM-695006. ## 2. P.SIVAKUMAR S/O.LATE PARAMESWARAN NAIR, 'THIRUVATHIRA', TRA-451 JAI NAGAR, THIRUMALA, THIRUVANANTHAPURAM-695006. 3. P.SREEKUMAR S/O.LATE PARAMESWARAN NAIR, 'THIRUVATHIRA', TRA-451 JAI NAGAR, THIRUMALA, THIRUVANANTHAPURAM-695006. 4. A.SREEDEVI D/O.LATE PARAMESWARAN NAIR, 'THIRUVATHIRA', TRA-451 JAI NAGAR, THIRUMALA, THIRUVANANTHAPURAM-695006. R1 BY ADV. SRI.M.R.ANANDAKUTTAN (CAVEATOR) R BY ADV. SRI.M.R.ANANDAKUTTAN R BY ADV. SMT.M.A.ZOHRA R BY ADV. SRI.MAHESH ANANDAKUTTAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & P.D.RAJAN, JJ.** -------------------------------------- R.C.R.No.271 of 2014 -------------------------------------Dated this the 9[th] day of December, 2014 ## _**O R D E R**_ ## **K.T.Sankaran, J.** The respondents filed R.C.P.No.52 of 2011 on the file of the Rent Control Court, Thiruvananthapuram, against the revision petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The Rent Control Court held that the landlord failed to prove the bonafide need. As regards the benefit of the second proviso to Section 11(3) of the Act, the Rent Control Court held in favour of the tenant with respect to the first limb of the second proviso and held against the tenant with respect to the second limb of the second proviso. The Rent Control Court RCR 271/14 2 dismissed the Rent Control Petition. On appeal by the landlords as R.C.A. No.15 of 2013, the Rent Control Appellate Authority, Thiruvananthapuram, reversed the finding of the Rent Control Court and allowed the petition under Section 11(3) of the Act. The Rent Control Appellate Authority did not consider the question whether the tenant have proved the first limb of the second proviso to Section 11(3) of the Act. That is not quite relevant since the Appellate Authority held that the tenant failed to prove the second limb of the second proviso. It is well settled that the burden of proof is on the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act. 2. The petition schedule building is situated in one cent of land at Vanchiyoor, Thiruvananthapuram. There is one room in the ground floor and one room in the first floor. The tenant is running a ration shop in the room in the ground floor. In the RCR 271/14 3 room in the upstair portion, the third petitioner in the Rent Control Petition is conducting a chess coaching class. The present rent for the petition schedule building is ₹1,100 per month. The lease was made in 1975 by the predecessor-ininterest of the landlords fixing a monthly rent of ₹60/-. The tenant is continuing in possession of the petition schedule building from 1975 onwards. 3. In the Rent Control Petition, it is averred that the original landlord, the predecessor-in-interest of the present landlords, was living with his family in a rented building. Even now the landlords are living in a rented building. It is also averred that one cent of land in which the petition schedule building is located is the only item of immovable property left behind by the deceased landlord and it was inherited by the present landlords. According to the landlords, they are living in RCR 271/14 4 poor circumstances. The second petitioner in the Rent Control Petition is having a Government job. The third petitioner in the R.C.P. is running training classes for chess. The husband of the fourth petitioner is a representative of Nokia phones. In paragraph 10 of the Rent Control Petition, it is averred as follows : _“10. The income which the fourth petitioner's husband get out of the said employment is grossly insufficient even for the daily needs of himself and his wife, the fourth petitioner. After matured thoughts and deliberate decisions the petitioners and the husband of the fourth petitioner had planned to start a sales deport of Nokia phones in the scheduled premises about which he has got experience and knowledge. So that the petitioners can manage the business and can at least earn income to meet a decent honest life.”_ 4. The tenant disputed the bonafide need. He also raised a contention that the income derived from the petition schedule business is the main source of income for him and his family members. The tenant also raised a contention that there are no other suitable buildings available in the locality RCR 271/14 5 to accommodate the business run by the tenant. Thus, the tenant claimed the benefit of the second proviso to Section 11(3) of the Act. 5. Before the Rent Control Court, the fourth petitioner in the Rent Control Petition was examined as PW1. On the side of the tenant, CPWs 1 to 5 were examined. 6. The Rent Control Court held that the pleadings with respect to the bonafide need are vague and therefore, the petition under Section 11(3) cannot be granted. The Rent Control Court also believed the case of the tenant that he is depending for his livelihood on the income derived from the business conducted in the petition schedule building. However, the Rent Control Court held that the tenant failed to prove that there are no other suitable buildings available in the locality to RCR 271/14 6 accommodate his business. On appeal, the Appellate Authority held that the pleadings are not vague and that a liberal approach is to be made in the matter of pleadings in a Rent Control Case. The Appellate Authority relied on the decisions in **Abu v. Beebi (1970 KLT 1096)** and **Madhavan v. Leelamma (1991(2) KLT 32)** and held that meticulous application of the rules of pleadings would not apply to proceedings before the Rent Control Court. 7. We have gone through the Rent Control Petition. On a fair reading of the Rent Control Petition, we do not find any vagueness in the same. The petitioners in the Rent Control Petition wanted to make out a livelihood. All of them are united in their approach. Who will do the actual business on behalf of all is not very relevant. The husband of the fourth petitioner has offered assistance to the petitioners in the R.C.P. RCR 271/14 7 for conducting a Nokia show room. That does not mean that the fourth petitioner's husband will do the business. Any one of the petitioners can do the business. None of them need be dependent on the other since all of them are co-owners. Not only that a liberal approach should be made in the matter of the pleadings, we are of the view that the Rent Control Court was not justified in not properly comprehending the pleadings. When all the family members say that they want to conduct a business to earn a livelihood, it is not the concern of the Court as to who among them will sit in the shop and do the business. Any one of them may do it or all of them may do it. The question is whether the need is bonafide. 8. The Rent Control Court found that the plea of the tenant that he is depending for his livelihood on the income derived from the business is established. The Appellate RCR 271/14 8 Authority did not say anything about that finding. We are inclined to accept the finding of the Rent Control Court in that regard. However, that is not enough to enable the tenant to get the benefit of the second proviso to Section 11(3) of the Act. It has come out in evidence that there are other vacant buildings available in the locality. The court below relied on the Commissioner's report to arrive at that finding. The Appellate Authority rightly held that the tenant failed to prove the second limb of the second proviso to Section 11(3) of the Act. 9. The finding of the Appellate Authority that the landlords have established the bonafide need is well reasoned and legal. The finding of the Rent Control Court was rightly interfered by the Appellate Authority on this point. The finding that the tenant failed to prove the second limb of the second proviso to Section 11(3) of the Act is concurrent and there is no RCR 271/14 9 ground to interfere with that finding. 10. Accordingly, we hold that this revision is devoid of merit. There is no illegality, irregularity or impropriety in the judgment of the court below, warranting interference under Section 20 of the Act. The Rent Control Revision is accordingly dismissed. Lastly, the learned counsel for the Revision Petitioner/tenant submitted that reasonable time may be granted to the tenant to vacate the building. Taking into account the facts and circumstances of the case, we grant to the tenant time till 31.7.2015 to vacate the petition schedule building on condition that he shall file an affidavit before the executing court on or before 31.1.2015, unconditionally undertaking to vacate the petition schedule building on or before 31.7.2015 RCR 271/14 10 and also on condition that he shall deposit the entire arrears of rent before the executing court on or before 31.1.2015. The tenant shall also pay the monthly rent on or before 10[th] of the succeeding months. If the tenant fails to comply with any of the conditions mentioned above, the executing court would be free to proceed with the execution forthwith. If the tenant complies with the conditions mentioned above, the execution proceedings shall be kept in abeyance till 31.7.2015. **K.T.SANKARAN JUDGE** **P.D.RAJAN JUDGE** csl