Lakshmanan M. v. Jessi Manappatti @ Jessi Aravind; Babu K. v. Jessi Manappatti @ Jessi Aravind (RCRev.195/2019 & RCRev.202/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** ## **RCRev..No.195 OF 2019** **AGAINST THE JUDGMENT DATED 09-11-2018 ORDER IN RCA 77/2017 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THALASSERY** **AGAINST THE ORDER DATED 20-08-2016 IN RCP 47/2015 OF RENT CONTROLLER (MUNSIFF), KUTHUPARAMBA** **REVISION PETITIONER/ APPELLANT/ RESPONDENT IN RCP/ TENANT :** **LAKSHMANAN.M, AGED 71 YEARS, S/O CHIRUKANDAN, TRADER, MOOKAMBIKA BAKERY, THADATHIL P.O., MAMBRAM - 670 741, KANNUR DISTRICT.** **BY ADVS. SRI.R.SURENDRAN KUM.S.MAYUKHA** ## **RESPONDENT/ RESPONDENT/ PETITIONER IN RCP/ LANDLADY :** **JESSI MANAPPATTI @ JESSI ARAVIND, AGED 53 YEARS, D/O GOPALAN VYDIAR, ARJUNA CHANDRANKANDIYIL HOUSE, VILLIAPALLY, VATAKARA, KOZHIKODE DISTRICT, PIN - 673 542.** **R1 BY ADVS. SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19-12-2019, ALONG WITH RCRev..202/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** **RCRev..No.202 OF 2019** **AGAINST THE JUDGMENT DATED 09-11-2018 IN RCA 78/2017 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE) THALASSERY** **AGAINST THE ORDER DATED 20-08-2016 IN RCP 48/2015 OF THE RENT CONTROLLER (MUNSIF COURT), KUTHUPARAMBA** **REVISION PETITIONER/ APPELLANT/ RESPONDENT IN RCP/ TENANT :** **BABU K., AGED 61 YEARS, S/O ACHUTHAN, TRADER, JAI HIND HOTEL, P.O.MAMBRAM, KANNUR DISTRICT, PIN – 670 741.** **BY ADVS. SRI.R.SURENDRAN KUM.S.MAYUKHA** ## **RESPONDENT :** **JESSI MANAPPATTI @ JESSI ARAVIND, D/O.GOPALAN VYDIAR, AGED 53 YEARS, ARJUNA, CHKANDRANKANDIYIL HOUSE, VILLIAPALLY, VATAKARA, KOZHIKODE DISTRICT, PIN – 673 542.** **R1 BY ADVS. SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19-12-2019, ALONG WITH RCRev..195/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 3 ## ORDER K.Harilal, J. Since these revision petitions are filed challenging a common judgment, these revision petitions are heard together and disposed of accordingly. 2. The parties are referred to as landlord and tenants respectively. The landlord filed RCP.No.47/2015 against the revision petitioner in RCR.No.195/2019 and RCP No.48/2015 against the revision petitioner in RCR.No.202 of 2019, under Section 11(2)(a) and (b) and 11(3) of the Act seeking an order of eviction against them. 3. The tenants opposed the said applications and both parties adduced evidence on rival pleadings. After considering the evidence on record, the rent control court passed an order of eviction under Section **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 4 11(3) of the Act only and rejected the claim for eviction under Section 11(2)(b). Though both the tenants have filed appeals before the appellate authority as RCA.No.77/2017 and RCA.No.78/2017 after re-appreciating the evidence on record, the appellate authority confirmed the order of eviction passed, by the rent control court against both the tenants. Thus, the legality and propriety of the concurrent findings whereby the appellate authority confirmed the order of eviction passed by the rent control court under Section 11(3) of the Act have come up, before us, in these revision petitions. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 5. The sum and substance of the argument advanced by the learned counsel for the revision petitioners is that the courts below have failed to appreciate the evidence on record on _bona fide_ need claimed by the landlord in its correct perspective and **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 5 thereby the findings are vitiated by perversity. No other legal point has been raised before us in these revision petitions. 6. Therefore, the sole question that arises for consideration in these revision petitions are whether there is any illegality or perversity in the appreciation of evidence on _bona fide_ need projected by the landlord. According to the landlord, the petition schedule buildings are situated adjacently in the ground floor of a two storied building. The tenants are carrying the business of hotel and bakery respectively in the said rooms. The landlord is in need of the aforesaid tenanted premises for starting a ready-made garment and textile business. Though she is residing abroad along with her husband, she intends to settle down in the native place so as to start the aforesaid ready-made garments and textile business. The tenanted premises can be used conveniently for starting the ready-made garments and textile business **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 6 after removing the wall between the two rooms. Though the petitioner has already got vacant possession of the upstair portion of the tenanted premises, the same is not suitable for conducting the textile business. But at the same time, the said upstair portion can be used for stocking the textile goods as their godown. It will be inconvenient to the customers as well as the petitioner if the upstair portion is used for conducting textile business. The staircase is narrow and the customers may not like to visit or purchase textile after climbing the staircase. Except the upstair portion of the tenanted building, there is no other building of her own in her possession to start the aforesaid business; whereas several other vacant buildings are available in the locality to accommodate the business of the tenants. So also, they are not depending mainly on the income, which is being derived from the business in the tenanted premises as they have several other sources of income including **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 7 ## real estate business etc. 7. The tenants resisted the claim for eviction raising common contentions contending that the need projected is not bona fide as the landlady is a housewife residing abroad along with her husband. The tenanted building is a dilapidated one and the same is not suitable for conducting a textile business. That apart, the landlady is an affluent person having several other sources of income and there is no need to start a new business to eke out her livelihood. On the other hand, the tenants are mainly depending on the income from the business which is being conducted in the tenanted premises and no other buildings are available in the locality. If the need projected was bona fide, the landlady could have started the business in the upstair portion of the same building. They prayed for rejecting the claim for eviction under Sec.11(3) of the Act. 8. After considering the evidence on record, the courts below concurrently found that the need **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 8 projected in the rent control petition is bona fide, the claim for eviction is not negated by the first proviso to Sec.11(3) of the Act and the tenants are not entitled to get protection under the second proviso to Sec.11 (3) of the Act. The aforesaid findings are challenged in this revision petition. 9. As regards bona fides of the need, it is a specific case of the landlady that she is in need of both tenanted premises for starting a ready made garments and textile business after renovating the building by removing the wall between the tenanted premises, which are in the occupation of both the tenants. According to her, she has no building other than the upstair portion of the same building to start the aforesaid business and the upstair portion is not suitable for conducting the textile business. 10. The learned counsel for the revision petitioner vehemently contended that the landlady is a housewife residing along with her family in Gulf country **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 9 and she is an affluent aged lady having several other sources of income for her livelihood. Admittedly, at the time of filing the rent control petition, the landlady was aged 50 years. This Court as well as the Supreme Court in various decisions held that age factor cannot be taken as a ground for rejecting bona fides of the need and a business can be started at any age of a person and there is no age bar for starting a new business to eke out livelihood or to augment income. That apart, in **2003(3) KLT 733 (Abdul Rub vs Jobby Tharian)** , the Supreme Court held that law does not think or insist that landlord having other sources of income shall not carry on other income earning business or activity or venture to start new business. Further, in **2014 (2) KLT 978 (Shamsudheen vs Balan Nair)** , the Supreme Court again held that even if landlord is a man of wealth and assets, his claim for eviction on the ground of bona fide need cannot be rejected if he is a determinant for starting another business. In view of **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 10 the aforesaid decisions, we find that the need projected by the landlady cannot be rejected on the reason that she is an affluent lady aged 53 years having several other sources of income. The courts below are justified in finding that the need projected is bona fide. 11. More importantly, in the rent control petition itself the landlady disclosed the availability of the upstair portion of the same building, which is lying as vacant. But she has given special reason for not occupying the said upstair portion for starting ready made garments and textile business. It is a matter of common knowledge that the ground floor of a building is always convenient for starting a consumer oriented retail business rather than upstair portion of a building. The above view is supported by the decision of this Court in **2002 (6) SCC 16 (Dhannalal vs Kalawatibai and others)** wherein, the Supreme Court held that shops on the first floor cannot be as suitable **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** **==> picture [13 x 8] intentionally omitted <==** as one on the ground floor, for consumer oriented retail business. No point has been raised in this revision doubting the legality and propriety of the concurrent findings under the provisos to Sec.11 (3) of the Act. Therefore, this revision petition will stand dismissed. 12. The learned counsel for the revision petitioners/tenants prays for one year time to vacate the tenanted premises. The learned counsel for the respondent/landlady submits that a reasonable time may be granted to the revision petitioner. Having regard to the facts and circumstances of the case, the revision petitioners are given seven months' time to vacate the tenanted premises on the following conditions: _(1) The revision petitioners/tenants 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 they will vacate the petition schedule building within seven months from today._ _(2) The revision petitioners/tenants shall deposit the entire arrears, if any, within one month from the_ **RCRev..No.195 OF 2019 & RCRev.No.202 OF 2019** 12 _date of receipt of a copy of this order, 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 respondent/landlord will be at liberty to proceed with the execution of the eviction order._ Sd/- **K.HARILAL JUDGE** Sd/- **C.S.DIAS JUDGE** sks/20.12.2019/ RKM