K.P. Rajan v. Ayisha and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 25TH DAY OF AUGUST 2017/3RD BHADRA, 1939 RCRev..No. 277 of 2017 -------------------------RCA 168/2015 of RENT CONTROL APPELLATE AUTHORITY-II/ II ADDL. DISTRICT JUDGE, KOZHIKODE RCP 28/2014 of RENT CONTROL COURT (ADDL.MUNSIFF-I), KOZHIKODE REVISION PETITIONER/APPELLANT IN R.C.A/RESPONDENT IN R.C.P.: -------------------------------------------------------------- K.P.RAJAN S/O SANKARAN, AGED 60 YEARS, POOKKOTAYIL HOUSE, ULLIYERI P.O., KOZHIKODE-673620. BY ADV. SRI.P.P.JACOB ## RESPONDENTS/RESPONDENTS IN R.C.A/PETITIONERS IN R.C.P.: --------------------------------------------------------- ## 1. AYISHA AGED 71 YEARS, W/O POKKER, PANIKKASAM KANDIYIL HOUSE, CHELANNUR VILLAGE, CHELANNUR. P.O., THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673616. 2. MOIDEEN KUNJU, AGED 54 YEARS, S/O POKKER, PANIKKASAM KANDIYIL HOUSE, CHELANNUR VILLAGE, CHELANNUR. P.O., THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673616. ## 3. USMAN, AGED 51 YEARS, S/O POKKER, PANIKKASAM KANDIYIL HOUSE, CHELANNUR VILLAGE, CHELANNUR. P.O., THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673616. ## 4. SARABI AGED 43 YEARS, D/O POKKER, PANIKKASAM KANDIYIL HOUSE, CHELANNUR VILLAGE, CHELANNUR. P.O., THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673616. 5. JAFFER, AGED 39 YEARS, S/O POKKER, PANIKKASAM KANDIYIL HOUSE, CHELANNUR VILLAGE, CHELANNUR. P.O., THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673616. -2- RCRev..No. 277 of 2017 ## 6. SAJITHA, AGED 38 YEARS, D/O POKKER, PANIKKASAM KANDIYIL HOUSE, CHELANNUR VILLAGE, CHELANNUR. P.O., THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673616. ## 7. DAVOOD, AGED 37 YEARS, S/O POKKER, PANIKKASAM KANDIYIL HOUSE, CHELANNUR VILLAGE, CHELANNUR. P.O., THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673616. ## 8. SIRAJ @ ESMAIL AGED 35 YEARS, S/O POKKER, PANIKKASAM KANDIYIL HOUSE, CHELANNUR VILLAGE, CHELANNUR. P.O., THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673616. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 2508-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R. 277 of 2017 - - - - - - - - - - - - - - - - Dated : 25[th] August, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## Harilal, J. 1.Revision petitioner is the tenant who is confronting with an order of eviction concurrently passed against him under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short “the Act”), by the courts below. According to the landlord, the petition schedule building is required for starting a business of 'Catering Service' and 'vadaka' store for the 3[rd] petitioner and he has no building in his possession to store all the utensils and equipments for running the 'Catering service'. It is also averred that he has no other suitable vacant room in his possession for the said purpose and the tenant is not entitled to get protection under the proviso to Sec.11(3) of the building. **RCR.277/17** 2 - 2.The tenant resisted the said contention contending that the need projected in the petition is not a bona fide one as the petitioner is having sufficient other sources of income and he is conducting a footwear and stationery business in the said locality. That apart, the 3[rd] petitioner is a real estate agent and he is getting considerable income from the said source also. So also the 3[rd] petitioner has no experience in the field of 'catering service'. - 3.On the aforesaid rival contentions both parties adduced evidence and after evaluating the evidence on record the Rent Control Court found that the need projected is a bona fide one and the tenant is not entitled to get protection under the proviso to Sec.11(3) of the Act. In appeal, the Appellate Court also confirmed the findings of the Rent Control Court as such and dismissed the appeal. Thus the legality and correctness of the concurrent findings under Sec.11(3) of the Act have come up in Revision. **RCR.277/17** 3 4.Heard the learned counsel for the petitioner. The learned counsel for the tenant advanced argument in support of the grounds raised in the memorandum of Revision petition. The learned counsel mainly contended that the courts below have failed to appreciate the evidence on record with respect to the bona fides of the need in its correct perspective. This Court is not inclined to re-appreciate the entire evidence on record in exercise of a revisional jurisdiction under Sec.20 of the Act, unless the findings of the Rent Control Court are found perverse. The tenant has no case that the courts below have omitted to consider any valuable evidence or placed reliance on any irrelevant evidence or wrong proposition of law while appreciating the evidence on record. In the absence of such a case, this Court is not inclined to reappreciate the entire evidence on record and take a different view. ## 5.Going by the impugned judgment it is seen that **RCR.277/17** 4 the tenant has mainly contended that the 3[rd] petitioner has other sources of income and the landlords are also rich persons and they have no need to start a new business for the avocation of the 3[rd] petitioner. The said contention was considered by this Court in Kurian v. Sunny John(2016 (2) KLT SN.124) and Abdul Rub v. Jobby Tharian (2003 (2) KLJ 1035). In the aforesaid decisions, it was held that the landlords, having other sources of income, are also having a right to claim an order of eviction under Section 11(3) of the Act to get their income enhanced and impecuniousness or lack of livelihood is not a condition precedent to maintain a Rent Control Petition seeking eviction, on a bona fide need. - 6.Coming to the 1[st] proviso, it is a case of the tenant that the landlords having sufficient place in their house for starting the business but no evidence has been adduced to prove the said contention. In the absence of evidence to prove the contention, the courts below are **RCR.277/17** 5 justified in rejecting the said contention. It is also contended that the 3[rd] petitioner has no prior experience to start the business. This Court in Kurian K.Kuriakose v. Usha Cherian (2008 (1) KLT 739) held that the prior experience to start intented business is not a pre-requisite for getting an order of eviction under Section 11(3) of the Act. 7.As regards the protection under the 2[nd] proviso, though the landlords contended that the building is a residential building and the same was let out to the tenant for residential purposes, the tenant contended that he is conducting business also in the same building wherein he is residing. But no evidence has been adduced to prove the said contention. Therefore the courts below are justified in finding that the tenant is not depending upon the income from the business in the petition schedule building. So also there is no evidence to prove that no other alternative buildings are available in the locality for residential purposes. **RCR.277/17** 6 - 8.Thus we find that the courts below have meticulously considered the entire evidence on record and allowed the claim under Sec.11(3) of the Act, in view of the law settled by the judicial precedents. In the absence of any illegality or impropriety in any of the finding, the Revision Petition fails and is dismissed accordingly. - 9.Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given six months' time from today to vacate the petition schedule building, 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, expressing an undertaking that he will vacate the petition schedule building room within six months from today. **RCR.277/17** 7 (2). The revision petitioner/tenant shall deposit the entire arrears, if any, within one month, 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 landlord will be at liberty to proceed with the execution of the eviction order. Sd/- **K.HARILAL Judge** **Sd/A.M.BABU Judge** Mrcs/25.8 //True Copy// P.S.To Judge