KERALA STATE HANDICrafts APEX CO-OPERATIVE SOCIETY LTD. v. K. Sivaraman S/O Krishnamoorthy Chettiar

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940 ## RCRev..No. 202 of 2018 RCP 16/2014 of ADDL.MUNSIFF COURT, PALAKKAD RCA 3/2016 of ADDL. RENT CONTROL APPELLATE AUTHORITY - V, PALAKKAD ## REVISION PETITIONER/S: - 1 KERALA STATE HANDICRAFTS APEX CO-OPERATIVE SOCIETY LTD., MANNAMCHERRI BUILDING, VALANJAMBALAM, KOCHI-682 016,ERNAKULAM DISTRICT. - 2 KERALA STATE HANDICRAFTS APEX CO-OPERATIVE SOCIETY LTD., PALAKKAD BRANCH, COURT ROAD, SULTANPET, KOPPAM, AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT, REPRESENTED BY THE SECRETARY. BY ADV. SRI.M.N.MATHEW ## RESPONDENT/S: K. SIVARAMAN, S/O KRISHNAMOORTHY CHETTIAR, AGED 65 YEARS,18/410(1), OPP.RAPPADI, WEST FORT ROAD,YAKKARA VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-680 001. BY ADVS. SRI..BINOY VASUDEVAN (CAVEATOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C.R. No.202/2018 -2- ## K. Harilal,J. The revision petitioner is the tenant against whom an order of eviction has been passed concurrently by the courts below under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short). The parties are referred to as in the Rent Control Petition. 2. According to the petitioner/landlord, his daughter-in-law is a member of his family and is depending on the petitioner for the petition schedule shop room. He _bona fide_ needs the petition schedule shop room for starting a retail ready-made garments business for his daughter-in-law. She is an MBA graduate and is desirous of earning income for her livelihood. Neither the petitioner nor his dependant has any other building in their possession to start the said business. The respondent is not depending on the income from the business in the tenanted premises and several other vacant buildings are available in the locality to shift the business from the tenanted premises. 3. The respondent resisted the claim for eviction contending that the need projected is not _bona fide_ . According to the respondent, the daughter-in-law of the petitioner is not a dependant on the petitioner in respect of the petition schedule building. The son and the daughter-inlaw of the petitioner has their own business and income. The need R.C.R. No.202/2018 -3- projected is not _bona fide_ and it is a ruse for eviction only and therefore, they are entitled to get protection under second proviso to Section 11(3) of the Act. 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected is _bona fide_ and the respondents are entitled to get protection under the second proviso to Section 11(3) of the Act. The legality, propriety and regularity of the aforesaid findings are assailed in this revision petition. 5. Heard the learned counsel for the revision petitioner and the learned counsel for respondent. 6. At the outset, we must remind ourselves the limited scope and interference of this Court under Section 20 of the Act, which is confined to the legality, propriety and regularity of the findings of the courts below only. This Court is not inclined to re-appreciate the entire evidence on record on factual findings unless it is found that the findings of the courts below are perverse or vitiated by non-consideration of material evidence. 7. The learned counsel for the respondent/tenant vehemently contended that the courts below have failed to appreciate the evidence on record available under the first proviso to Section 11(3) of the Act. R.C.R. No.202/2018 -4- According to the learned counsel for the revision petitioner, the petitioner/landlord has not disclosed the availability of the alternative buildings in his possession in the pleadings and evidence. But, it is come out in evidence that he has another buildings of his own to start the proposed business for his daughter-in-law. No special reasons was given for not occupying the said alternative building for the proposed business of his daughter-in-law. No other point has been raised before us in this revision petition. 8. In the light of the arguments, we have examined the concurrent findings of the courts below under first proviso to Section 11(3) of the Act. On a reading of paragraph 18 of the order passed by the Rent Control Court, it could be seen that the petitioner himself had admitted that two rooms in the up-stair of the petition schedule building are vacant and are in his possession. So also, on the western side of the petition schedule building, he along with his wife owns a new building having around 4000 sq.ft. As rightly pointed out by the learned counsel for the revision petitioner, the availability of those buildings have not been stated in the pleadings. 9. The question that arises for consideration is whether the nondisclosure of the availability of alternative buildings in the Rent Control Petition is fatal or not. This question was considered by this Court in R.C.R. No.202/2018 -5- _**Kunhamina K v. V.K.T. Aboobacker Haji**_ [2016 KHC 639], in which it is held that “even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before court and he had given special reasons for not occupying the same and both the parties have adduced evidence on that aspect understanding the case of each other, then no prejudice would be caused to the tenant on account of the non-disclosure of the fact in the Rent Control Petition and it is for the court to consider the suitability of the building.” Further, in _**Kunju v. Fathima**_ [2014(3) KLT 563, it is held that “it cannot be understood from the first proviso to Section 11(3) of the Act that the landlords need to plead the particulars of all the premises under their ownership and possession to claim an order of eviction. The proviso only recites that the Rent Control Court shall not order eviction, if the landlord has another building of his own in his possession, without satisfying the special reasons for not occupying the vacant premises. Further, the proviso would indicate beyond doubt that it is only when it is established that the landlord has another building of his own in his possession for his occupation for the proposed need, he needs to satisfy the Rent Control Court the special reasons for not occupying the said premises. In other words, to non-suit the landlord, the vacant building should be of such character, which would meet the requirements of the R.C.R. No.202/2018 -6- landlord. Any other interpretation of the proviso would lead to absurdity and cannot be accepted.” 10. In the light of the aforesaid decisions, it can safely be concluded that the non-disclosure of the availability of the alternative buildings in the pleadings are not fatal. In the present case, the petitioner himself has admitted in his evidence the availability of two rooms in the first floor and another building having around 4000 sq. ft. area owned by the petitioner and his wife. 11. The next question to be considered is whether the petitioner has succeeded to give special reasons for not occupying the aforesaid building. Admittedly, two rooms are in the first floor. The need projected in the petition is one for starting a retail ready-made garments business. The dependant for whose need the building was sought to be evicted was examined in evidence and she has testified to the effect that she informed her desire to PW1 and suggested the petition schedule building for her purpose. As regards the rooms in the first floor, this Court in _**Dhannalal v. Kalawativai & others**_ [2002 (6) SCC 16] held that rooms in the first floor cannot be equated with the rooms in the ground floor for the purpose of starting a retail business. Therefore, it cannot be held that the rooms in the first floor were suitable for conducting the retail ready-made garments business. R.C.R. No.202/2018 -7- 12. As regards the another building having around 4000 sq. ft. area, it is come out in evidence of PW1 that, that building is situated in the fourth plot from the court road and the building is not having road frontage; whereas the petition schedule building is having road frontage and facing the court road. More importantly, even though the burden of proof is on the respondent/tenant, no evidence has been adduced to prove that the rooms available in the hands of the petitioner are suitable for conducting the ready-made garments business. In other words, the respondent has failed to discharge the burden of proof under the first proviso to Section 11(3) of the Act. In the absence of any evidence to prove the suitability of the alternative building, the courts below are justified in believing the evidence of PWs 1 and 2 to the effect that alternative buildings are not suitable for conducting the ready-made garments business. Going by the judgment passed by the appellate authority also, we find that the appellate authority has framed a specific point as point No.2 to consider the availability of the other buildings in the possession of the petitioner. After re-appreciating the evidence on record under the first proviso, the appellate authority also concurred with the findings of the Rent Control Court that the petitioner has failed to discharge the burden of proof under the first proviso. We do not find any kind of illegality or impropriety in the aforesaid findings, whereby R.C.R. No.202/2018 -8- the courts below concurrently found that the claim for eviction is not hit by the first proviso to Section 11(3) of the Act as the petitioner has given special reason for not occupying the building available in his hand. Therefore, this appeal fails and is dismissed accordingly. 13. However, the learned counsel for the revision petitioner seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given six months' time to vacate the tenanted premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, within a period of one month from today. 2. The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of six months from today. 3. The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondents are entitled to enforce the order. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** sd/- R.C.R. No.202/2018 -9- _Rv_