Kavilumparakkal Honey Anand v. Vadoorakandi Vasantha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940 RCRev..No. 17 of 2019 AGAINST THE JUDGMENT IN RCA 202/2017 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE DATED 06-10-2018 AGAINST THE ORDER IN RCP 59/2014 of MUNSIFF COURT, QUILANDY DATED 25-012017 ## REVISION PETITIONER/APPELLANT/RESPONDENT: KAVILUMPARAKKAL HONEY ANAND, AGED 41 YEARS, S/O ACHU ANAND,MECHANIC,IYYAD ASMOM AND DESOM,UNNIKULAM P.O.KOYILANDI TALUK,KOZHIKODE DISTRICT 673 574,(THE NAME OF THE PETITIONER IN THE JUDGMENT AND ORDER OF COURTS BELOW IS MISTAKENLY STATED AS KAVILUMPARAKKAL HANI ANAND,HIS REAL NAME IS KAVILUMPARAKKAL HONEY ANAND) BY ADVS. SRI.SRINATH GIRISH SRI.P.JERIL BABU ## RESPONDENT/RESPONDENT/PETITIONER: VADOORAKANDI VASANTHA, AGED 66 YEARS D/O KUNJHIKORAPPAN,BALUSSERY AMSOM,AND DESOM, BALUSSERY P.O.KOYILANDY TALUK, KOZHIKODE DISTRICT-673 612. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C. Rev. No.17/2019 -2- ## **ORDER** ## Annie John,J The respondent herein is the landlord who has filed a RCP No. 59 of 2014 against the revision petitioner, seeking an order of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [hereinafter referred to as 'the Act']. The revision petitioner is the tenant, against whom an order of eviction has been passed concurrently by the Rent Control Court as well as the appellate authority. 2. According to the respondent, the petition schedule room was let out to the petitioner on 17.05.2013 on a monthly rent of Rs.1800/-. The husband of the respondent has been retired from Government service and he is suffering from various ailments like heart attack, blood pressure and diabetes and is spending more than Rs.1000/- per day for medicine alone. The respondent has no job or other means of income. The pension of the husband is the only income which is not sufficient to meet her livelihood. Therefore, she intends to start a retail business in the petition schedule shop room for raising income for her livelihood. According to her, no other rooms are available in the near proximity and she is financially capable to start the business. R.C. Rev. No.17/2019 -3- 3. _Per contra_ , the revision petitioner contended that he has taken the petition schedule shop room on lease from 1997 onwards as a godown of his automobile workshop. In the year 2013, an agreement was executed fixing the rent as Rs.1800/- per month. He has also denied that the respondent's husband is suffering from various diseases. He has further stated that the respondent is having another room in her possession where a workshop of jeep is conducting and she is getting income by way of rent from that building. Apart from the pension of the husband, the respondent and husband has got other source of income from their properties. She has no capacity to start the business and the intention of the respondent/landlord was to evict the revision petitioner from the petition schedule shop room. According to the revision petitioner, he is fully depending upon the income that derives from the petition schedule building and no other buildings are available in the locality. 4. On the side of the respondent, he was examined as PW1 and Exts.A1 was also marked. No oral or documentary evidence was adduced on the side of the revision petitioner. Ext.X1 was also marked. 5. After hearing both sides, the court below has held that the respondent is entitled to get eviction under Section 11(3) of the Act. Aggrieved by same, the revision petitioner has preferred an appeal before the appellate authority, Kozhikode, who as per judgment dated R.C. Rev. No.17/2019 -4- 06.10.2018 in RCA No. 202 of 2017, dismissed the appeal confirming the findings of the court below. 6. The learned counsel for the revision petitioner contended that there is no other rooms available in the near locality and the petition was filed for evicting the revision petitioner and that the income which derives from the petition schedule shop room is the only means of livelihood of the revision petitioner. The Rent Control Court as well as the appellate court has concurrently held that the respondent has succeeded in establishing the _bona fide_ requirement as contemplated under Section 11(3) of the Act and she is entitled to get eviction of the vacant possession of petition schedule shop room from the possession of the revision petitioner. The landlord-tenant relationship between the respondent and the revision petitioner is admitted. The definite case of the respondent is that she requires the petition schedule shop room for the purpose of starting a ready-made business. In fact, her husband is suffering from blood pressure, diabetic and heart disease and she requires more than Rs.1000/- daily for his treatment. The respondent's husband is a pensioner and his pension is not sufficient enough for their livelihood. 7. During cross examination, the respondent has stated that her husband is getting merely Rs.15,000/- to 16,000/- as monthly pension and that he requires Rs.1900/- per month for his treatment. R.C. Rev. No.17/2019 -5- She has also admitted that there is a jeep workshop in her name. Thereafter, she corrected that that room has been given on rent. It is also admitted that the revision petitioner is using the petition schedule shop room as a go-down of his automobile workshop. 8. The learned counsel for the revision petitioner has submitted that the respondent is aged 65 years and she is not capable of starting a business as intended by her. There is no evidence before us that she is not capable to start a business as intended by her. There is no evidence before us that she is incapacitated in starting a business at the age of 65 years. She has given evidence in accordance with the pleadings in the petition and nothing was brought out to disbelieve her testimony. 9. Eventhough the revision petitioner has taken a contention the need urged by the respondent is a ruse for eviction only, he has not cared to enter in the box and depose supporting his contentions. No evidence was adduced by the revision petitioner to disprove the case of the respondent. Therefore, the fact that she intends to start a readymade business in the petition schedule shop room stands proved by the respondent. 10. The next point to be considered is whether the respondent is in possession of any other vacant building in her possession to start the proposed business. It is true that she has deposed that there is a workshop of jeep in her name; but she has subsequently corrected that R.C. Rev. No.17/2019 -6- she has rented out the same. The revision petitioner could not able to prove that the respondent is in possession of any other vacant rooms in the locality and no evidence was adduced supporting the same. 11. The learned counsel for the respondent/landlord contended that the tenant cannot have a dictatorial role in the assessment of the need projected by the landlord and he placed reliance on _**Madhava v. Pathummabi**_ [2005(3) KLT 369]. Even then there is absolutely no evidence before us that no other buildings are available with the respondent/landlord and the allegation raised by the revision petitioner/tenant in the objection that the respondent has got other buildings in her possession could not be established also. It is also a settled principle of law that the tenant cannot question the suitability of the premises for the landlord's business purposes. Likewise, he cannot question the suitability of the premises for the landlord's residential purposes. He has also relied on the decision in _**Sait Nagee Purushothaman & Co. Ltd. v. Vimalabai Prabhulal**_ [2005 (4) KLT 452 (SC)], in which it is held that it is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not and it is the privilege of the landlord to choose the nature of business and place of business. 12. In the instant case, there is absolutely no evidence that the respondent has got any other business or she is holding vacant R.C. Rev. No.17/2019 -7- possession of other buildings in the locality and therefore, the aforesaid ruling has no relevance in this case. When the _bona fide_ requirement under Section 11(3) of the Act is established, then the burden is on the tenant to prove the provisos to Section 11(3) of the Act. The revision petitioner has to prove that the income from the petition schedule building is the main source of his livelihood. It is proved that the revision petitioner is using the petition schedule shop room as a go-down and he is not conducting any business therein. Ext.X1, the certified extract of the Building Tax Assessment Register kept in Panangad Grama Panchayat issued by the Secretary, has been produced to prove the other buildings belonging to the respondent and it shows that building Nos. 817, 819, 820, 821, 822, 823, 824, 825 and 826 in Ward No.13 of Panangad Panchayath are owned by the revision petitioner. In the column of the occupier also, the name of the respondent has been shown. In that series of building, apart from 823, with respect to all other buildings, the usage is shown as 'business purposes', and in 823, the usage is shown as 'residential'. So, the Assessment Register itself would prove that the revision petitioner has got other means of income. Further, he has not enter in the box to give evidence regarding Ext.X1 produced before this Court. It is proved that he is having several rooms in his possession where other business is also being conducted. Even otherwise, it is unable to believe that the income from the petition R.C. Rev. No.17/2019 -8- schedule shop room is the main source of his income. 13. The next point to considered is with regard to the availability of the alternative accommodation in the locality. The respondent was examined as PW1 and he has given evidence to the effect that building No. PP 13/885 stands in the name of Sunitha, W/O. Late Ankamkandy Bhaskaran and children, and building Nos. 13/901 and 13/902 owned by Theruvil Abdul Rehiman Hajee which are suitable for go-down purposes are lying vacant and the owners of the building are prepared to let out those rooms and the said buildings are situated about 50 metres away from building No.13/820, where the revision petitioner is conducting the business. In order to prove this fact, Ext.X1 building Tax Assessment Register has been produced and it shows that with respect to building Nos.13/901 and 13/902 which stand in the name of Theruvil Athrumankutty Haji, the column of occupier is lying vacant. In page No.2 of Ext.X1, the assessment with respect to building No. 13/885 has been highlighted and in the column of occupier, it is written as 'A.K. Bhaskaran' and the building No.13/886 is owned by A.K Bhaskaran and column of occupier is lying vacant. So, the production of Ext.X1 document by the respondent would prove that other buildings are available in the locality for occupation of the revision petitioner. The revision petitioner has not taken any steps to enquire with regard to the availability of the building near the proximity of the petition schedule R.C. Rev. No.17/2019 -9- building and he has not cared to enter into the box. In the absence of such an evidence, it is concluded that the revision petitioner could not able to prove the first and second limb of Section 11(3) of the Act. But, on going through the evidence adduced by both sides and the findings entered by the courts below, we are of the considered opinion that the courts below has rightly found that the respondent _bona fide_ requires the petition schedule building for starting a business of tailoring and readymade garments. The revision petitioner has failed to substantiate that the income from the petition schedule building is the only source of his livelihood and no other buildings are available in the near locality. Moreover, it is proved that the revision petitioner/tenant has got other source of income also. The revision petitioner/tenant could not able to substantiate any grounds so as to interfere with the findings of the Rent Control Court as well as the appellate authority. 14. However, the learned counsel for the revision petitioner/ tenant prayed for sometime to vacate the tenanted premises. Having regard to the submission at Bar, the revision petitioner/ tenant is given seven 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, R.C. Rev. No.17/2019 -10- expressing an undertaking that he will vacate the petition schedule shop room within seven months from today. 2. The revision petitioner/ tenant shall deposit the entire arrears, if any, within one month 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, and shall continue to pay the rent without default. 3. In the event of failure to comply 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. This Revision Petition is disposed of as above. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rkm/Rv_ R.C. Rev. No.17/2019 -11-