K.V. Kunhiraman and M.K. Ayyappan v. K. Rajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 10TH DAY OF JUNE 2013/20TH JYAISHTA 1935** **RCRev..No. 351 of 2012 ()** **-------------------------RCA.NO. 24/2011 OF RENT CONTROL APPELLATE AUTHORITY, (DISTRICT COURT) KASARAGOD RCP.NO. 13/2010 OF RENT CONTROL COURT (MUNSIFF) HOSDURG ------------------------------------------** ## **REVISION PETITIONERS / RESPONDENTS / RESPONDENTS:-** **----------------------------------------------------------------------------------------** **1. K.V.KUNHIRAMAN, AGED 53 YEARS, S/O.PARU AMMA, WOOD PLANER, W-111/1588 & 1589, NADAKKAVU JN., TRIKARIPUR P.O., HOSDURG TALUK, KASARAGOD DISTRICT.** **2. M.K.AYYAPPAN, AGED 57 YEARS, S/O.KUTTAN, WOOD PLANER, W-111/1588 & 1589, NADAKKAVU JN., TRIKARIPUR P.O., HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS.SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU** ## **RESPONDENT/APPELLANT/PETITIONER:-** **-------------------------------------------------------------** **K.RAJAN,AGED 53 YEARS, S/O.DEVAKI AMMA, NADAKKAVU, UDINOOR VILLAGE, UDINOOR P.O., HOSDURG TALUK, KASARAGOD DISTRICT.PIN-671 310** ## **BY ADV. SRI.JAWAHAR JOSE** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~** **R.C.R No.351/2012** **~~~~~~~~~~~~~~~~~~~~~~~~~~~** **Dated this the 10[th] day of June, 2013** ## **O R D E R** ## **Ramachandran Nair, J.** The respondent-landlord herein filed R.C.P.No.13/2010 before the Rent Control Court (Munsiff), Hosdurg seeking eviction of the petitioners who are tenants, under Sections 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act'). The eviction was sought for the bona fide need of the landlord to start a business in hardware, steel etc. in the petition schedule rooms. 2. Initially, the monthly rent fixed was `.500/- each. In the objection filed by the tenants-petitioners, it was pointed out that in March, 2010 the monthly rent was enhanced to `.600/- per month. The bona fide need pleaded by the landlord was also disputed. The Rent Control Court found in favour of the tenants on the aspect of bona fide need pleaded by the landlord under Section 11(3) of the Act and it was also held that there **R.C.R. No.351** **`/2012`** ## **-:2:-** is no proof regarding default in payment of rent and consequential arrears of rent to be paid by them and hence it rejected the plea for eviction under Section 11(2) of the Act. In the appeal filed by the landlord-respondent herein, the Appellate Authority reversed the finding under Section 11(3) of the Act; found that the bona fide need pleaded is genuine and also confirmed the finding that the landlord is not entitled to get an order of eviction under Section 11(2) of the Act. 3. We heard the learned counsel for the petitioners Shri Zubair Pulikool and Shri T.R.Ravi, learned counsel appearing for the respondent. 4. Learned counsel for the petitioners submitted that it is an important requirement under Section 11(3) of the Act that the landlord can seek eviction only if there is a bona fide need and a mere desire cannot be a ground to evict the tenants. It is also submitted that the findings rendered by the Rent Control Court for want of bona fides are mainly due to the fact that the landlord has not succeeded in proving the preparations made by him for using the building and **R.C.R. No.351** **`/2012`** ## **-:3:-** for want of evidence regarding the financial expenditure involved and the source from which he would bring in the funds. It is submitted that all what is deposed before the Court by the landlord is that his brother-in-law, who is conducting a business will lend money to a tune of `.10 lakhs which was straightaway accepted by the Appellate Authority for upsetting the cogent findings rendered by the Rent Control Court. 5. The learned counsel for the respondent submitted that the findings rendered by the Rent Control Court are not supportable as the tenants have failed to prove their case that the landlord is having other items of business; in the evidence RW1 admits that the landlord is having the financial background and; the landlord has also explained in his evidence that he is intending to borrow any required funds from his brother-in-law who is in the business line already. It is also submitted that what is required under the Act is to plead the bona fide need which has been done by the landlord herein by projecting the requirement to conduct business in hardware and steel. The tenants could not **R.C.R. No.351** **`/2012`** ## **-:4:-** even suggest to PW1 that the petition is filed as a ruse for eviction. Learned counsel further submitted that the tenants, having failed to prove their plea that the landlord is having other business like quarry and poultry farm, there is nothing wrong in the Appellate Authority accepting that the landlord has genuinely pleaded and proved the bona fide need. 6. We have perused the orders passed by the authorities below and gone through the details from the depositions read over to us by the respective counsel. The Rent Control Court in paras.9 & 10 with regard to Point No.2, after referring to the need pleaded by the landlord, was of the view that nothing has come out in evidence that he is in bona fide need of the petition schedule rooms for his intended business. After referring to his evidence that he requires an amount of `.10 lakhs for which he is depending upon the business of his brother-in-law for getting a loan, it was observed that he has no case that he had applied for the loan, or arranged some money for his intended business. It was also observed that the landlord has no case that he is doing the same **R.C.R. No.351** **`/2012`** ## **-:5:-** business with his brother-in-law and that he has got sufficient experience for his intended business. After observing like these, it was found that the bona fide need is not proved. 7. While reversing the above findings, the Appellate Authority in paras.11 and 12 referred to the plea raised by the landlord as well as the oral evidence adduced. Reference was made about the evidence of the tenant as RW1. It was in evidence that RW1 has no direct knowledge about the alleged business being conducted by the appellant. The Appellate Authority has extracted that portion of the evidence of RW1 wherein it was plainly admitted by him that the landlord has got the financial background to start the business proposed in the eviction petition. It was hence found as follows: “Though the landlord has deposed that he has to avail loan through the business of his brother-in-law, that alone cannot be a ground for doubting the capacity to raise funds for his business, **R.C.R. No.351** **`/2012`** ## **-:6:-** especially when there is no evidence regarding his independent source of income.” The Appellate Authority held after evaluating the evidence of PW1 and RW1 that the claim for eviction of tenants on the ground of bona fide requirement by the landlord has to be accepted. 8. Even though the learned counsel for the petitioners submitted that a reading of the said paragraph will show that the Appellate Authority did not enter a clear finding but observed that the case of the appellant (landlord) appears to be more probable than that of the tenants, a reading of the entire paragraph will show that the said observation was made in the context of considering the arguments raised by the tenants that the landlord is having separate business of his own. It was also observed that in the deposition of RW1 he had plainly stated that what all statements made by him were upon hearing somebody saying so. It is in that context the observation that "the case of the appellant (landlord) appears to be more probable than that of the **R.C.R. No.351** **`/2012`** ## **-:7:-** tenants" was made by the Appellate Authority. We find that there is a clear view expressed by the Appellate Authority that the bona fide need can be accepted. 9. Even though the learned counsel for the petitioners vehemently submitted that the said view cannot be supported on the available evidence, we are of the view that when the landlord has clearly stated that he is taking a loan from his brother-in-law and has also mentioned about the probable amount required, nearly, `.10 lakhs for the intended business and when there is no evidence to support the plea of the tenants that it is only a mere wish, as he has got other business to lead a normal life, it cannot be said that the Appellate Authority has acted perversely in reversing the finding of the Rent Control Court. It is a case where the tenants could not succeed in proving any of the contentions while attacking the bona fide need pleaded by the landlord. It is not the law that the landlord will have to plead in his eviction petition all the preparations he has made so far to start the business or the details of the **R.C.R. No.351** **`/2012`** ## **-:8:-** source of income etc. It is a matter for evidence, which he has succeeded in proving while being examined as PW1. Therefore, we do not find any reason to differ from the view taken by the Appellate Authority. 10. With regard to the two limbs of the second proviso to Section 11(3) of the Act, the tenants could not prove that they are depending upon the income derived from the business run in the petition schedule shop rooms for their livelihood and that there are no other alternative rooms available in the locality for shifting their business. Therefore, the said view also does not call for any interference. 11. Lastly, the learned counsel for the petitioners relied upon the decision of the Apex Court in Mohammad Ahmad and another v. Atma Ram Chauhan and others [AIR 2011 SC 1940] to contend for the position that since in this case there is an enhancement of rent from `.500/- to `.600/- in March, 2010, the tenants are not liable to be evicted at least for a period of five years as held by the Apex Court therein. **R.C.R. No.351** **`/2012`** ## **-:9:-** 12. Various aspects have been dealt with by the Apex Court in the said Judgment under the relevant provisions of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act 13 of 1972. Going by the facts stated in paras.6 and 9 to 11 of the said Judgment, at the time of filing of the eviction petition, the rent being paid for a pair of shops by the appellants therein was `.40/- and `.20/-. When the case reached the High Court, an order of stay was granted with a condition to pay rent at the rate of `.600/- per month from September, 2005 onwards. After two years, when the case came up for hearing, a demand was made for enhancement of rent by the landlord and the learned Single Judge ordered enhancement of rent from `.600/- to `.2,100/- per month for both the shops from February, 2007 against which an appeal was taken before the Apex Court. In para.15, Their Lordships observed that “in the case in hand it is clearly reflected that respondents-landlords made an offer to the appellants/tenants which they agreed, only thereafter the rent was enhanced from `.600/- to `.2,100/- per month, for both the shops”. After **R.C.R. No.351** **`/2012`** ## **-:10:-** considering various other factors, in para.17 it was held that the enhancement is only reasonable. It is true that in para.21 certain guidelines have been fixed by the Apex Court and clause No.v is the one relied upon by the learned counsel for the petitioners. We extract the same hereunder:- "(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises." It is significant to note that, the same could be applied in a case where "if present and prevalent market rent assessed and fixed between the parties is paid by the tenant", and then immunity from eviction for five years can be provided. The same cannot help the tenants herein on the special facts of this case. Herein, the building was leased out in the year 2002 at a rent of `.500/- per month (on 02/04/2002 as per para.3 of the eviction petition). It was enhanced to `.600/- in **R.C.R. No.351** **`/2012`** **-:11:-** 2010 as per the counter statement. No evidence is there from the part of the tenants that it was the prevalent market rent at that time. No such rate has been fixed between the parties also. Hence, the petitioners' contention seeking immunity for eviction, based on the nominal increase of rent in the year 2010, has no merit and we reject the same. Clause (v) of the guidelines fixed by the Apex court in Mohammad Ahmad's case (supra) is not attracted herein. 13. Herein, the plea by the landlord is one for eviction under Section 11(3) of the Act and it cannot be said that merely because the tenants enhanced rent from `.500/- to `.600/-, the landlord is precluded from proceeding against the petitioners. The directions in the guidelines issued by the Apex Court will have to be understood in the factual setting in which the case herein was proceeded with and therefore we reject the contention of the learned counsel for the petitioners that the tenants are not liable to be evicted for a period of five years. 14. For all these reasons, we dismiss the revision petition. **R.C.R. No.351** **`/2012`** **-:12:-** 15. We grant time upto 31/03/2014 for the petitioners to vacate the premises on the following conditions: i. Arrears of rent if any will be remitted within a period of one month from today. ii. The petitioners will file separate affidavits undertaking to vacate the premises within the time granted by this Court, which will be filed within a period of one month from today. iii. They will continue to pay an amount at the same monthly rate till vacant possession is handed over as directed by this Court above. It is made clear that if any of the conditions are violated, the petitioners will not be entitled for the benefit of this Order. Sd/- ## **(T.R. Ramachandran Nair, Judge.)** Sd/- **(A.V. Ramakrishna Pillai, Judge.)** **ms** \\True copy// **P.A to Judge**