K.K. Balamani Amma v. V.P. Kunhi Ayissu and K.K. Sreejith

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940** **R.C.Rev.No. 218 of 2018** **AGAINST THE JUDGMENT IN RCA 90/2014 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE – III), THALASSERY DATED 27-02-2018** **AGAINST THE ORDER IN RCP 97/2012 of THE RENT CONTROL COURT (MUNSIFF), THALASSERY DATED 17-01-2014** **REVISION PETITIONER/ 1ST APPELLANT/ 1ST RESPONDENT :** **----------------------------------------------------** **K.K.BALAMANI AMMA, AGED 80 YEARS, D/O.KUNHIKRISHNAN NAMBIAR, RESIDING AT LATHA NIVAS, PANOOR AMSOM, DESOM, THALASSERY.** **BY ADVS.SRI.N.M.MADHU SMT.C.S.RAJANI** ## **RESPONDENTS/ RESPONDENT/ 2ND APPELLANT/ PETITIONER/ 2ND RESPONDENT :** **------------------------------------------------------------------** **1. V.P.KUNHI AYISSU, AGED 66 YEARS, D/O.ALI HANI, SHAHANA MANZIL,** **C.P.ROAD, CHOKLI, THALASSERY – 670 672.** **2. K.K.SREEJITH, AGED 47 YEARS, S/O.GOVINDAN, RESIDING AT KINATULLA KUNHIPARAMBATH HOUSE, PANOOR AMSOM, DESOM, THALASSERY – 670 692.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RKM** ## **K. HARILAL & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **R.C.R.No. 218 of 2018** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 5[th] day of July, 2018** ## **ORDER** ## **K. Harilal, J.** The revision petitioner is the first appellant in R.C.A.No.90/2014 of the Rent Control Appellate Authority, Thalassery as well as the first respondent in R.C.P.No.97/2012 of the Rent Control Court, Thalassery. The above rent control petition was filed by the respondents herein under Section 11(2) (b), 11(4)(1) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act'). After trial, the Rent Control Court passed the order of eviction under Section 11(3) of the Act and rejected the claim for eviction under Section 11(2)(b) and 11(4)(i) of the Act. Though the revision petitioner filed the aforesaid appeal before the Appellate Authority, the Appellate Authority also concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the concurrent findings whereby the courts below have passed an order of eviction under Section 11(3) of the Act against the revision petitioner have come up in this revision before this Court. R.C.R.No. 218 of 2018 2 2. The parties are referred to as in the Rent Control Petition. According to the petitioner, his son is not having any job or sources of income and he wants to start a business of electrical items in the petition schedule building. He is depending upon him for the petition schedule building. Neither the petitioner nor his son is in possession of any vacant room of their own. The respondents resisted the claim for eviction under Section 11(3) of the Act contending that the need projected is not a bonafide one. The petitioner's son Muhammad is not a dependent of the petitioner. He is having other vacant rooms. He is the proprietor of Hydel Combinations, at Kannur. There is no bonafides in the need projected in the petition and the alleged bonafide is a ruse for eviction only. The petitioner has 24 rooms in the tenanted building, out of which only 4 rooms are in possession of the tenants and the remaining rooms are vacant. So, the landlord can use any one of the said vacant rooms if the need is bonafide. It is also contended that the respondents are depending on the income derived from the business carried on in the tenanted premises for their livelihood and no other vacant buildings are available in the locality to shift their business. After considering the aforesaid R.C.R.No. 218 of 2018 3 rival pleadings and the evidence, both oral and documentary, adduced by both parties, on the said pleadings, the courts below concurrently found that the need projected in the petition is bonafide and the respondents are not entitled to get protection under the first and second proviso to Section 11(3) of the Act. Thus, the concurrent findings whereby the courts below granted an order of eviction under Section 11(3) are assailed in this revision petition. 3. Heard the learned counsel for the revision petitioner. The scope and extent of interference in the revision is confined to legality, propriety and regularity of the findings of the courts below. There is no scope for interference with the appreciation of evidence on factual findings, unless the findings are vitiated by perversity or non-consideration of evidence. 4. In the above view, the only question to be considered in this revision is whether there is any kind of perversity in the appreciation of evidence. Going by the impugned judgment, it is seen that in order to prove the bonafides of the need, the petitioner's son, for whose need the building was required, was examined as PW1 and he has spoken to the bonafides of his need as averred in the rent control petition. The R.C.R.No. 218 of 2018 4 courts below have relied on the evidence of PW1 on a finding that he has spoken in consonance with the averments in the present petition and nothing has been brought out to disbelieve his evidence in cross examination. This Court is not inclined to re-appreciate the evidence of PW1 unless any kind of glaring, perversity strikes us. We do not find any kind of perversity, in the appreciation of evidence of PW1. 5. The respondents have contended that the petitioner has his own 20 other vacant rooms in his possession and he could have occupied any of the said rooms. It is trite that as regards the first proviso to Section 11(3) of the Act, the burden of proof is on the tenant. But, no evidence has been adduced to prove the said contention. But, the petitioner has taken a commission to ascertain the non-availability of vacant rooms in his possession. According to Ext.C1 commission report, there are 23 rooms, out of which 20 rooms are on the ground floor and 3 rooms are on the first floor. At the time of inspection, all the rooms were seen opened and they were found occupied by various tenants. It is specifically observed by the Commissioner that he has personally met the occupant tenants of the rooms and collected relevant details from them. But, in the appeal, the respondents again R.C.R.No. 218 of 2018 5 contended that there were vacant rooms out of the said 20 rooms and the appellate authority rejected the said contention on a finding that it lacks bonafides. As he held above, the initial burden was on the respondents and they have failed to discharge the said burden. That apart, when RW1 has cross examined, he categorically admitted that almost all rooms are occupied by the tenants. In the above view, the courts below are justified in finding that the claim for eviction under Section 11(3) is not hit by the first proviso. 6. Coming to the 2[nd] proviso, the burden is heavy on the tenant to prove both the limbs of 2[nd] proviso. Though, the respondents have contended that they are depending mainly on the income derived from the business carried on in the tenanted premises, no evidence has been adduced to prove the income or volume of business in the tenanted premises. In **2016(5) KHC 820 (Shahul Hameed A. v. P.E. Abdu Razak)** , this Court held that the tenant, who is hiding his income is not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. That apart, she herself admitted that she had 50 cents of property wherein coconut trees are standing and she had another 15 cents of property also. Though she admitted that she is getting income R.C.R.No. 218 of 2018 6 from the tenanted premises, nothing has been produced by her to show the income from the tenanted premises. She herself admitted that she could not enquire about the availability of the vacant rooms in the locality. No evidence has been adduced to prove that no vacant buildings are available in the locality. In the above analysis, we do not find any kind of perversity in the appreciation of evidence. Hence this revision petition is devoid of any merit and dismissed accordingly. 7. The learned counsel for the revision petitioner sought for some time to vacate the tenanted premises. she wants time to wind up the business. 8. Having regard to the aforesaid situation, the revision petitioner is given 8 months' time to vacate the tenanted premises on the following conditions :- 1. The revision petitioner/ tenant shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of the copy of this order. 2. The revision petitioner/ tenant shall file an affidavit expressing an undertaking that she is ready and willing to vacate the tenanted premises within a period of 8 months' from today. R.C.R.No. 218 of 2018 7 3. The affidavit shall be filed within a period of two weeks from the date of receipt of the copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondents/ landlords are entitled to enforce the order. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM