Karappath Kunhikannan v. C. Sabira

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939** **RCRev..No. 338 of 2012 (C) --------------------------** **AGAINST THE JUDGMENT IN RCA 3/2011 of THE RENT CONTROL APPELLATE AUTHORITY,KASARAGOD DATED 08-08-2012** **AGAINST THE ORDER IN RCP 16/2009 of RENT CONTROL COURT, HOSDRUG DATED 06-12-2010** **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **----------------------** **KARAPPATH KUNHIKANNAN, AGED 52 YEARS, S/O.P.KUNHAMBU, HINDU, AGRICULTURIST, RESIDING AT KAROLAM IN SOUTH TRIKARIPUR, HOSDURG TALUK, P.O. ELAMBACHI, KASARAGOD DISTRICT.** **BY ADV. SRI.M.V.AMARESAN** **RESPONDENT/APPELLANT/PETITIONER:** **-----------** **C.SABIRA, AGED 43 YEARS, W/O.P.P.AHAMMED, MUSLIM, HOUSE WIFE, RESIDING AT RIYAS MANZIL, CHOOVARI IN NORTH TRIKARIPUR, VILLAGE OF HOSDURG TALUK, P.O TRIKARIPUR, KASARAGOD DISTRICT. PIN 621 121.** **BY ADVS. SRI.D.KRISHNA PRASAD SMT.S.SANTHY** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## _**OKB**_ K.HARILAL & P. SOMARAJAN, JJ. --------------------------R.C.R. No.338 of 2012 --------------------------Dated this the 1[st] day of June, 2017 ## O R D E R ## **Harilal, J.** The revision petitioner is the tenant against whom an order of eviction was passed diversely by the courts below under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, 'the Act'). The trial court found that the bona fide need would be hit by the first proviso to Section 11(3) of the Act and the tenant is entitled to get protection under the second proviso to Section 11(3) of the Act. So also, it was found that the need projected by the landlady was not a bona fide one. But, in Appeal, the lower appellate court reversed all the aforesaid findings and allowed the Appeal. Thus, the legality and propriety of the divergent findings are assailed in this Revision. 2. According to the landlady, she bona fide needs the petition schedule shop room for the occupation of her RCR.338/12-C :2: husband, who is a dependent for the building. He was working abroad. But, he has cancelled his Visa and now seeking for an avocation for the livelihood of the family. Thus, she requires the building for her husband for conducting a fancy cum stationery business. She or her husband had no other vacant rooms in their possession and the tenant is not depending upon the income derived from the business in the petition schedule building for his livelihood. He has some other sources of income also. On the above premises, she prayed for an order of eviction under Section 11(3) of the Act. 3. The tenant contended that the bona fide need put forward by the landlady is a ruse for eviction only. The husband of the landlady is having a lot of shopping complexes in Thrikkaripur and he is getting sufficient income from those shop rooms. Some of the said shop rooms belonging to the husband of the landlady are lying vacant. He is mainly depending upon the income from the tailoring shop which is being conducted in the petition schedule building. RCR.338/12-C :3: 4. After considering the evidence on record, the trial court dismissed the Rent Control Petition. But, in Appeal, the appellate court reversed the findings under all counts under Section 11(3) of the Act. 5. Heard the learned counsel for the landlady and the learned counsel for the tenant. 6. Going by the judgment passed by the lower appellate authority, it is seen that the lower appellate authority has reversed all the findings of the Rent Control Court. Therefore, the legality and propriety of the divergent findings require consideration in this Revision. It is the case of the landlady that she bona fide needs the petition schedule building for her husband for starting a fancy cum stationery shop as he has returned from Gulf country and has no avocation at all for livelihood. To substantiate the bona fide need, the landlady was examined as P.W.1. The husband, who is depending for the building, was examined as P.W.2. They have deposed in terms with the averments in the petition. But, the trial court found that he has not produced his passport to RCR.338/12-C :4: prove that he has returned from the Gulf country and at present he has no avocation. The appellate court reversed the said finding on a finding that the nonproduction of the Passport was of no consequence at all as available evidence on record deposed by P.Ws.1 and 2 are sufficient to prove that the landlady bona fide needs the building for the dependent. 7. The legal position settled by the Supreme Court is that the landlord need not lose his existing job or resign it in order to reach at a level of starvation to seek an order of eviction for the bona fide need (See AIR 1999 SC 3864). So also, it is trite law settled by the Supreme Court that bona fide need can be a prospective need also. Therefore, this Court is also of the view that the nonproduction of the Passport was of no consequence at all and the Rent Control Court went wrong by arriving at a finding conversely to the above view and the appellate court is justified in finding that the need projected by the petitioner is a bona fide one. 8. Coming to the first proviso, going by the evidence RCR.338/12-C :5: on record, it could be seen that, to substantiate the contention that the husband of the landlady has other shop rooms in his possession, the tenant had produced Exts.B1 to B3 Building Tax Assessment Register extract kept with the Local Self Government Authority. But, it is a matter of fact that unless the landlady reports to the Panchayat or Municipality that the shop room or building under her ownership is vacant or occupied, no changes will be entered in the Building Tax Assessment Register. Therefore, the Building Tax Assessment Register cannot be taken as a conclusive proof to prove the entries in that Register. In other words, no reliance can be placed on the entries in the Building Tax Assessment Register as regards the present occupation or vacation of the tenanted shop room. The above view is supported by the decision of this Court in **Varghese Eapen v. Varghese [2001 (2) KLT 263].** 9. Indisputably, as regards the first proviso to Section 11(3) of the Act, the burden is on the tenant to prove that the landlady has other buildings in her RCR.338/12-C :6: possession, and those buildings are lying vacant. But, in the instant case, as rightly held by the appellate court, even though the tenant had contended that the landlady has other shop rooms in her possession, she failed to prove that those shop rooms are lying vacant. If that be so, the burden of proof as regards the special reasons cannot be shifted to the landlady. But, in the instant case, according to the landlady, all other shop rooms are occupied by other tenants and none of them are vacant. In order to substantiate the said contention, the tenants who are occupying the building, were examined as P.W.3 to P.W.7. In the above analysis, the lower appellate authority is justified in finding that the bona fide need projected by the petitioner is not hit by the first proviso to Section 11(3) of the Act. 10. Coming to the second proviso, we prima facie find that the Rent Control Court absolutely went wrong by appreciating the evidence on the basis of a wrong impression that the burden of proof under the second proviso is on the landlady. Therefore, the findings of the RCR.338/12-C :7: trial court under the second proviso to Section 11(3) of the Act are absolutely wrong and the lower appellate authority is justified in reversing the findings and arriving at a finding that the tenant miserably failed to discharge the burden of proof under the second proviso and thereby they are not entitled to get protection under the second proviso. 11. In the above analysis, we find that there is no illegality or impropriety in any of the findings of the appellate authority whereby the petition can be allowed under Section 11(3) of the Act. This Revision is devoid of merits and dismissed accordingly. 12. At last, the learned counsel for the revision petitioner sought for some time to surrender the petition schedule shop room. The learned counsel for the respondent opposed the said request. But, this Court is of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule shop room, on terms. The revision petitioner shall surrender the petition schedule shop room within six RCR.338/12-C :8: months from today provided that he could comply the conditions given below within the specified time. - i) The revision petitioner shall file an affidavit before the Execution Court expressing an unconditional undertaking to surrender the petition schedule shop room within a period of six months from today and the said affidavit must be filed within two weeks from the date of receipt of a copy of this order. - ii) The revision petitioner shall pay entire arrears of rent to the respondent or deposit the same before the Execution Court within two weeks from the date of receipt of the copy of this order and he shall continue to pay rent without default. - iii) In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the respondent will be at liberty to proceed with the execution. **Sd/-** - K.HARILAL, Judge. **Sd/-** P.SOMARAJAN, Judge. okb. //True copy//