## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU**
**WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939**
**RCRev..No. 111 of 2016 () --------------------------**
**AGAINST THE ORDER/JUDGMENT IN RCA 80/2015 OF THE RENT CONTROL APPELLATE AUTHORITY AND ADDITIONAL DISTRICT JUDGE-II,KOZHIKODE DATED 30-11-2015**
**AGAINST THE ORDER/JUDGMENT IN RCP 35/2013 OF THE RENT CONTROLLER, MUNSIFF-KOYILANDY DATED 28-03-2015**
**REVISION PETITIONER(S)/RESPONDENT/RESPONDENT (TENANT): -----------------------------------------------------**
**KAVALIYIL ANANDAN, AGED 49 YEARS, S/O. KUNJIRAMAN, CHEMENJERI P.O., THUVVAKKODE DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673 304.**
**BY ADVS.SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN**
**RESPONDENT(S)/APPELLANT/PETITIONER (LANDLORD):**
**----------------------------------------------**
**UPPILEDATH PANKAJAM AGED 44 YEARS, D/O. RARU KUTTY NAIR, CHEMENJERI P.O., THUVVAKKODE DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673 304.**
**R1 BY ADV. SRI.V.V.SURENDRAN R1 BY ADV. SRI.P.A.HARISH**
**THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30-08-2017, ALONG WITH RCR. 112/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**K.HARILAL & A.M.BABU, JJ. .......................................... RCR Nos.111 & 112 of 2016 ........................................... Dated 30[th] August, 2017**
## **ORDER**
## **K.HARILAL, J.**
Since these revision petitions are filed challenging a common judgment passed by the appellate authority and the parties are common, these revision petitions are heard together and disposed of accordingly.
2. Revision petitioners are the tenants who obtained an order dismissing the rent control petition filed by the respondent herein under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter called as 'the Act' for short). In the appeal preferred by the respondent herein, the appellate authority reversed the findings of the rent control court and allowed the appeal. Thus the tenants have preferred these revision petitions challenging the findings of the appellate authority whereby the appellate authority reversed the findings of the Rent Control Court and granted an order of eviction under Sec.11 (3) of the Act to the respondents herein.
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**RCR Nos.111 & 112 of 2016**
3. According to the landlady, she needs the petition schedule shop room for her own occupation as she wants to start a shop of ladies tailoring and ready made garments. She further averred that her husband was employed abroad and now he lost his employment there and came back two years ago and now he has no avocation for livelihood of the family. She has no other building of her own in her possession to start the said business and the tenants are not entitled to get protection under the second proviso to Sec.11 (3) of the Act. The tenants resisted the need projected in the petition and contended that it is a ruse for eviction only. According to them, the husband of the petitioner is employed and he has his own avocation. According to them, the landlady has in her possession other suitable vacant buildings, but no other suitable buildings are available in the locality for them to shift their business from the petition schedule shop rooms. So also they are mainly depending upon in the income deriving from their business in the petition schedule shop rooms.
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**RCR Nos.111 & 112 of 2016**
4. On the aforesaid pleadings both parties adduced evidence both oral and documentary. After considering the evidence on record, the Rent Control Court dismissed the rent control petition on a finding that the need projected in the rent control petition is not a bona fide one and the same is hit by first proviso to Sec.11 (3) of the Act. However, the Rent Control Court further found that the tenants are not entitled to get protection under second proviso to Sec.11 (3) of the Act. In the appeal, the appellate authority reversed the aforesaid findings. Thus the legality and propriety of the findings whereby the appellate authority reversed the findings of the Rent Control Court have come up for consideration in these revisions.
5. The question is whether there is any illegality or impropriety in the findings of the appellate authority whereby the appellate authority granted an order of eviction under Sec.11 (3) of the Act to the landlady. Going by the impugned judgment it is seen that in order to prove the bona fides of the need, the petitioner herself has
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**RCR Nos.111 & 112 of 2016**
examined as PW1 and she had spoken to bona fides of her need. Thus the petitioner herself testified as to her bona fides and offered herself for cross-examination by the tenants. After considering the oral testimony of PW1, the appellate authority found that nothing has been brought out in cross-examination to discredit the bona fides of the need spoken to by her. The tenants have no case that either the petitioner or her husband has any other avocation for livelihood. All the tenants who were examined as RW1 to RW3 also admitted in crossexamination that the petitioner has no job or income other than the rental income from these buildings belong to her. But, the Rent Control Court doubted her bona fides on a reason that in the year 2010 she got vacant possession of another room bearing No.CP 6/620 through Court in OS 62/2010. But she has let out the said building to another tenant, instead of using the said shop room, for starting the proposed business. The appellate authority reversed the said findings on a finding that the non-user of the said building will not tell upon the bona fides of the present
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## **RCR Nos.111 & 112 of 2016**
need, as the landlady wants three rooms for starting the proposed business. She got only one room in the year 2010. We find that as rightly held by the appellate authority even if she got possession of one vacant room in the year 2010, she could not have started the business as she was in need of three rooms for starting the proposed business. In the above view, the appellate authority is justified the reversed findings of the Rent Control Court in this respect. Further the Rent Control Court found that the landlady had filed three rent control petitions against the very same tenants in the year 2010 and those rent control petitions were dismissed for default for nonprosecution on 4.7.2011. Even though, rent control petitions were dismissed in the year 2011, she had preferred all these rent control petitions in the year 2013 only and there was no explanation for delay in filing these rent control petitions. As observed by the appellate authority we also cannot subscribe the findings of the Rent Control Court, particularly, when no documents were produced before the Rent Control Court with respect to
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## **RCR Nos.111 & 112 of 2016**
the earlier rent control petition and the nature of need claimed in the said petition was not considered by the Rent Control Court before arriving at such a finding. Even if the same need was claimed in the said petition there was no bar in filing the present petitions since there was no adjudication on merits in the earlier petition and no limitation was prescribed in the rent control petition. In **2013 (4) KLT SN 23 (Case 21)(George vs Stanley)** this Court observed that several factors would go into the mind of the landlord before starting a business. Unless those factors are suitable for starting the business it cannot be said that she would have started the business much earlier. Thus, we also find that the need was bona fide.
6. Coming to the first proviso, the case of the tenants is that the landlady was in possession of room bearing No.CP 6/620 at the time of filing the Rent Control Petition and the landlady did not offer any special reason for not occupying the said room, for the present need and the Rent Control Court accepted the said case as such.
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## **RCR Nos.111 & 112 of 2016**
On the other hand, it has come out in evidence that she got possession of that room in the year 2011, but it was let out to a tenant by name Rajasree in the year 2011 itself and she was not in possession of that room in the year 2013, when she filed the present Rent Control Petitions. The said facts stand proved by Ext A5 copy of the building tax assessment register, and Exts A6 and A7 tax receipts with respect to the said shop, at the time of filing the Rent Control Petition. On the other hand, no evidence from the part of the tenants that the said shop room was laying vacant as on the date of filing the Rent Control Petition. So the tenants failed to discharge the burden of proof under the first proviso. That apart, it has come out in evidence that the said shop room is a small one only, requirement of three rooms cannot be satisfied by one small room. Thus the Appellate Authority is justified in finding that the bona fide need is not hit by the first proviso to Sec.11 (3).
7. As regards the second proviso, no positive evidence has been adduced to prove that the tenants are
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## **RCR Nos.111 & 112 of 2016**
depending on the income from the tenanted premises and no other vacant buildings are available in the locality. Therefore the courts below found that the tenants failed to discharge the burden of proof under the second proviso. We do not find any kind of illegality or impropriety in any of the findings. No other arguments, seeking interference of this Court, were placed before us in these revisions. Hence these revision petitions will stand dismissed.
8. The learned counsel for the tenants prayed for granting one year time to vacate the petition schedule shop rooms.
9. We, however, grant a period of six months' time from today to the tenants to vacate the premises subject to the following conditions: The tenants shall file separate affidavits in each rent control petition undertaking to vacate the premises within a period of six months from today. It shall also be undertaken in each affidavit that no further time will be sought under any circumstance. The affidavit shall be filed before the rent control court within a period of three weeks from the date of receipt of the
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## **RCR Nos.111 & 112 of 2016**
copy of this order. Arrears of rent, if any, shall be paid within two weeks from the date of receipt of the copy of this order. The rent in future, till the date of surrender of the premises shall be paid on or before the due date.
These revision petitions are dismissed. In the circumstances of the case, we make no order as to costs.
**K.HARILAL Judge**
**A.M.BABU Judge**
_sks/31.08.2017_
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