K.K. Haridas 'Hari Photoes' v. Deepa d/o Anantha Mallan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936 ## **RCRev..No. 107 of 2014 (A)** AGAINST THE JUDGMENT IN RCA 44/2008 OF THE RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA DATED 12-12-2013 AGAINST THE ORDER IN RCP.NO.27/2005 OF THE RENT CONTROL COURT, CHERTHALA DATED 22-03-2008. ## REVISION PETITIONER/RESPONDENT/RESPONDENT - TENANT: K.K.HARIDAS "HARI PHOTOES", IV/224, WEST OF DEVI TEMPLE CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.MOHAN C.MENON ## RESPONDENT/APPELLANT/PETITIONER - LANDLORD: DEEPA D/O.ANANTHA MALLAN, THEKKEKATTA HOUSE, CHERTHALA P.O. ALAPPUZHA DISTRICT - 688 524. BY ADV. SRI.K.N.SIVASANKARAN ( CAVEATOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.1148/2014 IN R.C.R.NO.107/2014** DISMISSED SD/- **K.T.SANKARAN, JUDGE** 19/06/2014 SD/- **A.MUHAMED MUSTAQUE, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ.** **---------------------------------------------------R.C.R. NO. 107 OF 2014(A) ---------------------------------------------------Dated this the 19[th] day of June, 2014** ## **O R D E R** ## **Muhamed Mustaque, J.** The tenant in this Revision challenges the order of eviction passed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). 2. The brief facts in this Revision are: The landlady, a young widow, approached the Rent Control Court, Cherthala seeking for eviction of the tenant under Section 11(3) of the Act, for the purpose of starting a tailoring and garment business in the petition schedule building. The landlady deposed before the Rent Control Court that she would not have filed the present Rent Control Petition if the tenant had agreed to pay the enhanced rent as demanded by the petitioner/landlady. The tenanted premises is situated at Cherthala. The landlady is residing at Kochi along with her minor daughter. It ## **R.C.R. NO. 107 OF 2014(A)** :: 2 :: has come out in evidence that the landlady's father, who settled the tenanted premises in favour of the petitioner, had also filed a petition for eviction of the tenant, in which it was found that the bona fide need set up by the landlady's father was not genuine. The Rent Control Court disallowed the claim under Section 11(3) of the Act appreciating the deposition of the landlady that her demand for enhancement was not heeded to by the tenant and also for the reason that she is residing at Kochi along with her minor daughter and also taking into account the fact that her father had filed a Rent Control Petition seeking eviction under Section 11(3) of the Act, which ended in dismissal. The landlady thereafter approached the Appellate Authority. The Appellate Authority reversed the said finding as per the judgment dated 25.1.2012 in R.C.A.No.44 of 2008. The Appellate Authority noted that those facts mentioned as above are not relevant to determine the bona fides of the landlady while making an enquiry under Section 11(3) of the Act. The fact that the landlady demanded for enhanced rate of rent was also noted by the Appellate Authority. It was alsofound by the Appellate Authority that the eviction petition filed by the father which ended in ## **R.C.R. NO. 107 OF 2014(A)** :: 3 :: dismissal would no away affect the claim of the landlady under Section 11(3) of the Act. It was also found that the mere fact that the landlady is residing at Kochi along with her minor daughter cannot be a reason for denying the claim under Section 11(3) of the Act. Accordingly, the Appellate Authority reversed the finding of the Rent Control Court and allowed the appeal. 3. Challenging the order of eviction, the tenant filed R.C.R.No.297 of 2012 before this Court. Pending Revision, the tenant filed I.A.No.1669 of 2013 to show that the landlady's father had executed a settlement deed in favour of the daughter of the landlady, who is admittedly a minor. It is contended by the tenant that the building acquired by the daughter by way of settlement executed by the grandfather would have an impact on the bona fide need claimed by the landlady. This Court, as per the order dated 5.8.2013, remanded the matter to the Appellate Authority to find out whether any impact would result on account of the subsequent event, based on a settlement deed executed by the father of the landlady in favour of her daughter, and also directed the tenant to file ## **R.C.R. NO. 107 OF 2014(A)** :: 4 :: a detailed affidavit in the appeal before the Appellate Authority stating the facts, which, according to the tenant, will have an impact on the bona fide need. The landlord was also given an opportunity to file objection and to counter the allegations to be placed by the tenant by way of affidavit before the Appellate Authority. Thereafter, the matter was considered by the Appellate Authority. The Appellate Authority found that even though sufficient opportunity was given to the tenant, no materials were placed before the Appellate Authority to show the execution of the settlement deed by the father of the landlady in favour of her daughter, even though an affidavit was filed. It was also observed by the Appellate Authority that instead of availing the opportunity to adduce further evidence based on the remand order, the tenant projected other allegations which are totally unconnected to the purpose for which the remand order was passed. Based on the affidavit and other relevant records, the Appellate Authority considered the point involved and found that the claim of the landlady is genuine and the tenant is liable to be evicted under Section 11(3) of the Act. Challenging the said finding of the Appellate Authority, the tenant filed this Revision. ## **R.C.R. NO. 107 OF 2014(A)** :: 5 :: 4. We have gone through the order passed by the Appellate Authority in R.C.A.No.44 of 2008 dated 25.1.2012, even though it was not appended along with the Revision it was made available before us by the counsel for the respondent, and also the judgment dated 12.12.2013 after the remand. We also perused the order passed by the Rent Control Court, dated 22.3.2008. ## 5. This Court in **Kurian K.Kuriakose** v. **Usha Cherian and** **others (2008 (1) KHC 731)** held that “the demand for increased rent by itself is not a ground to reject a claim for eviction on the ground of bona fide need. A landlord may legitimately expect a reasonable return of his investment. Demand for periodical increase in rent, taking into account the prevailing economic conditions, cannot be said to be so unreasonable and unjust so as to deny an otherwise just and genuine claim for vacant possession on the ground of bona fide need. The Courts cannot shut its eyes to the practical realities in life. The prevailing market conditions, escalation in prices, prevailing rates of rent and other socio economic factors ## **R.C.R. NO. 107 OF 2014(A)** :: 6 :: are relevant in considering the case.” The need projected by the landlady is exactly for the reason that she is unable to meet her livelihood by the meagre rent from the petition schedule building. It is quite natural in such a situation to find out means to generate income for her livelihood. In such a situation, her assertion has to be understood as a genuine expression of her intention to start a business to generate income. The landlady was correct in asserting that the refusal of the tenant to enhance rent resulted in filing the petition for eviction of the tenant for the purpose of starting a business to generate income. That explanation has to be understood as honest aspiration of the landlady to start a business instead of brushing it aside as a ruse for eviction of the tenant under the pretext of setting up a claim for bona fide. Landlady's request for enhanced rent if not accepted, she can very well take a decision to start a business. In either way her intention is only to augment income. We are of the view that the Rent Control Court misdirected itself by finding that such assertion would have adverse consequence upon the bona fide need put forward by the landlady. The Appellate Authority was right in holding that it may not have any ## **R.C.R. NO. 107 OF 2014(A)** :: 7 :: impact on the bona fide need. The bona fide need of the landlady has to be understood with reference to her conduct and her motivation. But strangely, the Rent Control Court relied upon the eviction petition filed by the father of the landlady which ended in dismissal to reflect the bona fide need of the landlady. The finding rendered by the Rent Control Court is so perverse. We also find, it is not for the tenant to dictate where the landlady should reside as if place of residence would also have a bearing upon the eviction petition filed under Section 11(3) of the Act. The landlady's residence in no way would have an impact upon the need put forward under Section 11(3) for own occupation to start business. 6. This Court remanded the matter to consider the impact of the subsequent event of executing a settlement deed by the landlady's father in favour of the minor daughter of the landlady. We also find no materials placed before the Appellate Authority to substantiate the contention of the tenant. Assuming that a settlement deed is executed in favour of the minor daughter of the landlady, the tenant has no case that the subject matter of the ## **R.C.R. NO. 107 OF 2014(A)** :: 8 :: settlement deed is a building which is vacant and is in possession of the landlady. Merely because the landlady happened to be the guardian, her claim, which is available to her being the landlady of the petition schedule building, cannot be denied. Even if it is assumed that the landlady is in vacant possession of the building as a guardian of the minor daughter, that also cannot have any consequence upon the claim under Section 11(3) of the Act. It is for the landlady to decide in a different capacity as guardian how to use the building for the welfare of the minor. The landlady's decision on behalf of the minor of the vacant building has no consequence under Section 11(3) of the Act to decide upon the bona fide need of the landlady. Lastly, it is pleaded by the learned counsel appearing for the tenant that an opportunity should be given to the tenant to produce the settlement deed to substantiate his contention that the landlady is in vacant possession of the building which is the subject matter of the settlement deed executed by her father in favour of her minor daughter. In the light of the discussions above, we find that there is absolutely no scope for reconsideration of the issues by the court below. We are also of the view that sufficient opportunity was ## **R.C.R. NO. 107 OF 2014(A)** :: 9 :: given to the tenant to produce the document before the Appellate Authority. Therefore, we find no merit in this Rent Control Revision. 7. The Rent Control Court, on the basis of the finding under the main part of Section 11(3), did not enter into any finding under the second proviso to Section 11(3) of the Act. However, the Appellate Authority found that the tenant is not entitled to protection in terms of the second proviso to Section 11(3) based on the Commission report. In the Commission report it was pointed out that there are several vacant buildings in the locality. Thus it was held by the Appellate Authority that the tenant is not entitled for protection under the second proviso to Section 11(3) of the Act. We also find no material before us to take a different view on this point also. Accordingly, we dismiss the Rent Control Revision. Lastly, the learned counsel for the revision petitioner sought for one year's time to vacate the petition schedule building. However, considering the fact that this Rent Control Petition is of the year 2005, we are inclined to grant time up to 30.9.2014 on the ## **R.C.R. NO. 107 OF 2014(A)** :: 10 :: following conditions: (1) The revision petitioner/tenant shall file an affidavit within a period of four weeks from today, unconditionally undertaking that he will surrender the tenanted premises to the landlady by 30.9.2014. (2) The revision petitioner/tenant shall deposit/pay the entire arrears of rent, if any, due to the landlady within a period of one month and shall continue to pay the monthly rent till he vacates the building. (3) If the tenant fails to comply with any of the conditions mentioned above, the landlady is free to execute the order of eviction. **(K.T.SANKARAN) Judge** **(A.MUHAMED MUSTAQUE) Judge** ahz/