Kottummal Ahammed v. Panoli Devi & Thazhepunathil Balasubramanian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936 RCRev..No. 361 of 2013 () -------------------------AGAINST THE JUDGMENT IN RCA 133/2012 OF RENT CONTROL APPELLATE AUTHORITY (III ADDL.DISTRICT COURT), KOZHIKODE DATED 12.7.2013 AGAINST THE ORDER IN RCP 48/2011 OF ADDL. RENT CONTROL COURT (ADDL. MUNSIFF - II), KOZHIKODE DATED 21.6.2012 ## REVISION PETITIONER/APPELLANT/RESPONDENT/TENANT: -------------------------------------------------------------------------------- KOTTUMMAL AHAMMED, AGED 72 YEARS S/O. JAMALUTTY, KOTTUMMAL HOUSE, NADUVATTOM AMSOM DESOM, KOZHIKODE TALUK. BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN RESPONDENT(S)/RESPONDENTS/PETITIONERS/LANDLORDS: ----------------------------------------------------------------------------------- 1. PANOLI DEVI, AGED 84 YEARS D/O. SAMI, PANOLI HOUSE, NADUVATTOM AMSOM DESOM KOZHIKODE TALUK-673330. 2. THAZHEPUNATHIL BALASUBRAMANIAN, AGED 59 YEARS TAZHEPUNATHIL HOUSE, S/O. PANOLI DEVI NADUVATTOM AMSOM, DESOM, KOZHIKODE TALUK-673330. R1-R2 BY ADV. SRI.K.SANEESH KUMAR R1-R2 BY ADV. SMT.V.B.SANTHINI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & ANIL K. NARENDRAN, JJ.** -------------------------------------- R.C.R.No.361 of 2013 -------------------------------------Dated this the 15[th] day of July, 2014 ## _**O R D E R**_ ## **Anil K.Narendran, J.** The tenant is the revision petitioner. The landlord, the respondents herein, filed R.C.P.No.48 of 2011 before the Rent Control Court, Kozhikode, under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') seeking eviction of the tenant from the petition schedule shop room. 2. According to the landlords, the petition schedule shop room was taken on lease by the tenant and the current rate of rent is ₹700/-. The tenant paid rent only up to December, 2010 and thereafter, the rent is kept in arrears. The bona fide need put forward by the landlords is that of the second respondent herein to start vegetable and stationary business in the petition schedule shop room. The tenant filed a counter admitting the tenancy and also the rate of rent in R.C.R.No.361/2013 2 respect of the petition schedule shop room. According to the tenant, there is no default in payment of rent and the need put forward by the landlords is not bona fide. The tenant is conducting vegetable business in the petition schedule shop room and the income derived from the said business is his sole livelihood and no suitable building is available in the locality to shift the business. 3. On the side of the landlords, the second respondent herein was examined as PW1 and Exhibits A1 to A3 were marked. The tenant was examined as RW1. During the course of arguments, the prayer for eviction under Section 11(2) of the Act was not pressed into service. The Rent Control Court by order dated 21.6.2012 allowed the petition under Section 11(3) of the Act and directed the tenant to surrender vacant possession of the petition schedule shop room. The Rent Control Court found that the need put forward by the landlords is bona fide and that the tenant is not entitled to get the benefit of the first and second proviso to Section 11(3) of R.C.R.No.361/2013 3 the Act. 4. Aggrieved by the order of the Rent Control Court, the tenant preferred R.C.A.No.133 of 2012 before the Rent Control Appellate Authority, Kozhikode. But, the Appellate Authority by the judgment dated 12.7.2013 dismissed the appeal confirming the findings of the Rent Control Court. It is aggrieved by the aforesaid order and judgment of the authorities below, the tenant has filed this Rent Control Revision under Section 20 of the Act. 5. We heard the argument of the learned counsel for the petitioner-tenant and the learned counsel appearing for the respondents-landlords. 6. The learned counsel for the petitioner-tenant would contend that the finding of the authorities below that the need put forward by the landlords is bona fide and that they are entitled for an order of eviction under Section 11(3) of the Act is legally unsustainable. The further finding that, the tenant is not entitled to get the benefit of the first and second proviso R.C.R.No.361/2013 4 to Section 11(3) of the Act is also legally unsustainable. Per contra the learned counsel for the respondents-landlords would contend that the findings of the authorities below are perfectly legal and no interference of this Court is called for. 7. We have considered the rival submissions made at the Bar. The bona fide need put forward by the landlords is that of the second respondent herein to start vegetable and stationary business in the petition schedule shop room. The second respondent, who was examined as PW1, deposed that he is getting only a meager amount as pension and he wants to start vegetable and stationary business in the petition schedule shop room, which is suitable for the said purpose. On the other hand, the tenant, who was examined as RW1, deposed that there is absolutely no bona fides in the need put forward by the landlords. According to RW1, the landlords are immensely rich and they own properties, rented buildings, etc. The wife of PW1 is a school teacher drawing a handsome salary. During cross-examination PW1 admitted that his wife R.C.R.No.361/2013 5 is working as teacher in a school and drawing a salary of ₹35,000/-. He also admitted that he would get ₹10,000/- per month as rental income from the rooms let out to other tenants and that he is presently working as Typist in an association running orphanage and getting around ₹4,000/per month, which according to PW1 is only a temporary job. 8. It has come out in evidence that, apart from the aged mother, who is the first respondent herein, his son, daughter and sister are also depending on PW1. During crossexamination RW1 has not seriously disputed the bona fide need put forward by the landlords. RW1 deposed that he cannot say anything if he has been asked as to whether he is feeling anything wrong in the desire of PW1 to start business in the petition schedule shop room. As rightly found by the Rent Control Court, the action of the landlords in giving another room on rent as early as on 1.1.2009, much prior to the institution of the present Rent Control Petition, does not lead to a presumption that there is no bona fides in the need R.C.R.No.361/2013 6 put forward by the landlords for getting vacant possession of the petition schedule shop room. Similarly, the periodical requests made by the landlords for enhancement of rent as such is not a valid ground to disbelieve the bona fide need put forward by them. The mere fact that the landlord had filed petition for enhancement of rent in respect of the petition schedule shop room cannot be a ground to hold that the bona fide need put forward by the landlords is only a ruse to evict the tenant from the said premises. 9. In **Abdul Rub v. Jobby Tharian (2003 (3) KLT 733)** this Court held that, the fact that the landlord has got other source of income will not adversely affect the bona fides of the claim made by him since the bona fide need urged would stand established whether or not the landlord has got income from other sources. This Court further held that, law does not require that an impecunious landlord alone can think of starting an income earning activity in order that the need set up will pass through the test of bona fides. Law does not R.C.R.No.361/2013 7 insist that a landlord having other sources of income shall not carry on other income earning activity or venture to start a new trade or business. Paragraph 10 of the judgment reads thus; “10. Though the revision petitioner would contend that the landlord did not state in his pleadings that he has got income from other sources, viz., rent from the first floor of the building, we are of the opinion that that will not adversely affect the bona fides of the claim made by the respondent since the bona fide need urged would stand established whether or not the landlord has got income from other sources. Law does not require that an impecunious landlord alone can think of starting an income earning activity in order that the need set up will pass through the test of bona fides. Law does not insist that a landlord having other sources of income shall not carry on other income earning activity or venture to start a new trade or business. It was contended that it is quite unlikely that the respondent landlord who is already engaged in a similar business in partnership with others and has failed to earn profit in that business would not venture to start business in the same line. We need only point out that the prospects of a business as also the taste of a person in a particular line of business are not matters for the courts to R.C.R.No.361/2013 8 choose and impose on such persons. What is relevant is only the question whether the need put forward is bona fide. It is neither for the courts nor for the opposite party to examine whether there is proper exercise of wisdom by the landlord in choosing one avocation of life or other, for earning income.” 10. Though PW1 was subjected to lengthy crossexamination nothing could be brought out to discredit his testimony regarding the bona fide need pleaded in the Rent Control Petition. On a proper appreciation of the facts of the case and the evidence on record, the Rent Control Court found that the need put forward by the landlords is bona fide and the Appellate Authority, while dismissing the Rent Control Appeal filed by the tenant, concurred with the said finding of the Rent Control Court. It is trite law that, any need which is rational and reasonable can be projected as bona fide need under Section 11(3) of the Act. If this Court is satisfied that the need projected is not a mere wish or an irrational desire or a fancy wish, the need can be accepted by this Court. If R.C.R.No.361/2013 9 this Court finds determination in the need projected by the landlord for his own purposes or that of his dependent, the landlord will be entitled for an order of eviction under Section 11(3) of the Act. 11. On the basis of evidence on record, the Rent Control Court and the Appellate Authority concluded that the landlords have succeeded in making out a case for ordering eviction of the tenant, under Section 11(3) of the Act, as the landlords bona fide require the petition schedule premises for the purpose of conducting vegetable and stationary business by PW1. Such a finding of the authorities below cannot be said to be erroneous or perverse, warranting interference of this Court under Section 20 of the Act. We find absolutely no illegality, irregularity or impropriety in the finding to that effect in the impugned order and judgment. 12. Now we shall consider whether the authorities below were justified in concluding that the tenant is not entitled to the benefit of the first Proviso to Section 11(3) of R.C.R.No.361/2013 10 the Act. The tenant would contend that the landlords are in possession of other rooms of their own and in case PW1 wants to start a business as stated in the Rent Control Petition he can make use any one of the aforesaid rooms. Other than the interested testimony of RW1, there is no other independent evidence to prove that the landlords have another building of their own in their possession in the same locality. The tenant has also not chosen to take out a commission to prove the said fact. The primary burden to show that the landlords have another building of their own in their possession is on the tenant, who claims the benefit under the first Proviso to Section 11(3) of the Act. As the tenant failed make out even a prima facie case to discharge the burden cast upon him, the Rent Control Court concluded that, the tenant is not entitled to the benefit of the first Proviso to Section 11(3) of the Act and the Appellate Authority concurred with the said finding of the Rent Control Court. 13. Now we shall consider whether the authorities R.C.R.No.361/2013 11 below were justified in concluding that the tenant is not entitled to the protection under the first and second limbs of the second Proviso to Section 11(3) of the Act. The tenant would contend that the income derived from the vegetable business conducted in the petition schedule shop room is his sole livelihood. Except this income he is not having any other source of income. The tenant would also contend that no other suitable buildings are available in the locality to shift his business. Other than the interested testimony of RW1 there is no other independent evidence to prove that the income derived from the business conducted in the petition schedule shop room is the sole livelihood of the tenant and the nonavailability of other suitable buildings in the locality to shift the business conducted in the petition schedule shop room. RW1 has not stated anything about the income derived from the business conducted in the petition schedule shop room. Moreover, RW1 has admitted that two of his sons are employed in Gulf countries. As the tenant failed prove that R.C.R.No.361/2013 12 ingredients of the second Proviso to Section 11(3) of the Act, the Rent Control Court concluded that, the tenant is not entitled to the benefit of the second Proviso to Section 11(3) of the Act and the Appellate Authority concurred with the said finding of the Rent Control Court. 14. The findings of the authorities below that the tenant is not entitled to the benefit of the first and second Proviso to Section 11(3) of the Act cannot be said to be erroneous or perverse, warranting interference of this Court under Section 20 of the Act. We find absolutely no illegality, irregularity or impropriety in the findings to that effect in the impugned order and judgment. In the result, we find no merit in the contentions raised in the Rent Control Revision and the same is dismissed. 15. The learned counsel for the petitioner-tenant submitted that the tenant may be granted a reasonable time to vacate the petition schedule shop room. Though the said request was strongly opposed by the learned counsel for the R.C.R.No.361/2013 13 respondents-landlords, considering the facts and circumstances of the case we are inclined to grant time till 31[st] January, 2015 to the tenant to vacate the petition schedule shop room. 16. Accordingly, the Rent Control Revision is dismissed. However, the petitioner-tenant is granted time till 31[st] January, 2015 to vacate the petition schedule shop room, on condition that he shall file an affidavit before the Rent Control Court on or before 15[th] August, 2014 unconditionally undertaking to vacate the petition schedule shop room on or before 31[st] January, 2015. The petitioner-tenant shall also deposit the entire arrears of rent as on the date of deposit before the Rent Control Court on or before 15[th] August, 2014, and shall continue to pay the monthly rent for the occupation and use of the petition schedule shop room for the remaining period till 31[st] January, 2015, on the 1[st] day of each succeeding month. If the petitioner-tenant fails to comply with any of the conditions mentioned above, the respondents- R.C.R.No.361/2013 14 landlords will be entitled to proceed with the execution of the order of eviction. If the petitioner-tenant comply with the above conditions, the execution court shall keep in abeyance the execution of the order of eviction till 31[st] January, 2015. **K.T.SANKARAN JUDGE** **ANIL K. NARENDRAN JUDGE** csl