Langulath Vazhayil Nisar v. Rohini and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943** ## **R.C.REV.NO. 63 OF 2021** **AGAINST THE JUDGMENT DATED 04.02.2019 IN R.C.A.NO.104 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), THALASSERY AND THE ORDER DATED 29.02.2016 IN R.C.P.NO.28 OF 2014 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** ## **LANGULATH VAZHAYIL NISAR** **AGED 53 YEARS, S/O.MUSTHAFA, RESIDING AT SAMEERA'S, HAJI ROAD, KANNUR - 670 001.** **BY ADV K.RAJESH SUKUMARAN** ## **RESPONDENTS:** - **1 ROHINI AGED 80 YEARS, D/O.JANAKI AMMA (DIED)** - **2 SOUDAMINI, AGED 78 YEARS, D/O.JANAKI AMMA,** - **3 SHYLAJA, AGED 72 YEARS, D/O.JANAKI AMMA,** - **4 RAJENDRAN, AGED 64 YEARS, S/O.JANAKI AMMA,** - **5 NEENA, AGED 62 YEARS, D/O.JANAKI AMMA,** - **6 RETHNAKARAN, AGED 60 YEARS, S/O.JANAKI AMMA,** - **7 SUMA, AGED 58 YEARS, D/O.JANAKI AMMA, (ALL THE RESPONDENTS ARE RESIDING AT PARAPURATH PUTHIYAPURAYIL, CHIRAKKAL AMSOM DESOM, P.O.ALAVIL, KANNUR - 670 008).** 2 R.C.Rev.No. 63 of 2021 **8* K.RAJEEV,** **S/O. LATE ROHINI, AGED 65 YEARS,RESIDING AT KALATHIL HOUSE, PALLIYAMOOLA. P.O, ALAVIL, KANNUR -670008.** ## **9* AJITHA K.P** **D/O. LATE ROHINI, AGED 63 YEARS, RESIDING AT VELLUVAKANDY HOUSE, P.O. VALAPATTANAM, MANNA, KANNUR -670010.** ***ADDL RESPONDENTS R8 & R9 BEING THE LEGAL HEIRS OF THE DECEASED IST RESPONDENT ARE IMPLEADED AS PER THE ORDER DATED 11/11/2021 IN I.A.NO.3 OF 2021 IN R.C.REV.NO.63 OF 2021)** **BY ADVS.** **LIJIN THAMBAN G.S.KRISHNAN KARTHA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 63 of 2021 ## **O R D E R** ## Ajithkumar, J. This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 was filed by the petitioner-tenant. The respondents filed a petition for eviction under Section 11(3) of the Act before the Rent Control Court (Additional Munsiff), Kannur as R.C.P.No.28 of 2014. That R.C.P. was allowed. The petitioner filed R.C.A.No.104 of 2016 under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-I), Thalassery. The appeal was dismissed. Feeling aggrieved of the judgment in R.C.A.No.104 of 2016, this revision was filed. 2. Heard the learned counsel for the petitioner and also the learned counsel for the respondents. 3. The learned counsel for the petitioner contends that the need urged was of the 5[th] respondent and the same cannot be said to be bonafide in any view of the matter. A housewife, aged 70 years, having no experience, wants to start a fancy shop in the petition schedule shop room. Her 4 R.C.Rev.No. 63 of 2021 daughter and son-in-law are well placed and there is no reason or purpose for the 5[th] respondent to start such a business. But the authorities below did not consider the matter in the proper perspective and ordered eviction on an erroneous understanding of the facts and the law. The learned counsel also contended that the petitioner is entitled to get the benefit of the second proviso to Section 11 of the Act, but that claim was also erroneously declined. 4. The learned counsel appearing for the respondents, on the other hand, contended that the Appellate Authority as well as the Rent Control Court thoroughly analysed the evidence and correctly concluded that the need was bonafide. The petitioner did not adduce any trustworthy evidence in support of his claim under the second proviso to Section 11(3), and therefore, his contention based on the said provision is quite untenable. 5. The 5[th] respondent was examined as PW1. She deposed in detail regarding her plan to start a fancy shop in the petition schedule shop room. It is her version that she is 5 R.C.Rev.No. 63 of 2021 unemployed and her daughter and son-in-law having been away, working in the State of Madhya Pradesh, she wanted to start a fancy shop in the petition schedule shop room. She denied the assertion of the petitioner that her daughter and son-in-law are well placed. However, she admitted that both of them are employed. The said evidence was considered by the authorities below in detail and come to the conclusion that the need urged by the 5[th] respondent, who is one of the landlords, is bonafide and genuine. 6. Main plank of the contention of the petitioner is that PW1 being aged and inexperienced, the projected need cannot be said to be genuine or reasonable. The petitioner however, has no case that PW1 is physically unfit or financially unstable. ## 7. In **Sunny Padamadan Rafael @ Sunny Padamadan** **v. Vijaya Sheony [2019 (2) KHC 90]** this court considered a similar question. The petitioner/ landlady, a widow aged 63 years at the time of filing of the rent control petition, wanted to start a business and for that need eviction was sought. The 6 ## R.C.Rev.No. 63 of 2021 court held that old age or affluency cannot be taken as a ground to doubt the bona fide need to start a new business, particularly when the respondent has no case that the petitioner is physically weak or disabled. "Where there is a will, there is a way". Therefore, the need was held to be bona fide, irrespective of the old age or affluency. 8. In **Mohinder Prasad Jain v. Manohar Lal Jain [(2006) 2 SCC 724]** the Apex Court considered the question whether experience is a precondition to claim eviction under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. Section 13 enables a landlord to claim eviction of the tenant from the tenanted shop room on the ground of his bona fide personal requirement. The Apex Court held that there is no law which provides for such a precondition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or preconditions without fulfillment whereof the landlord may not be able to start a business. But for running a business for which there prescribed no qualification, 7 R.C.Rev.No. 63 of 2021 experience in the business is not a precondition. 9. In **George T.I. v. K.L.Stanley [2013 (4) KHC 543]** this Court considered that question. It was held that previous experience cannot be insisted to test the bonafide need of the landlord, as it is not a requirement for a person to start and conduct a business. Therefore, the submission of the learned counsel for the petitioner in that regard cannot be accepted. 10. In view of the principle of law mentioned above, we are of the view that the age or inexperience of PW1 does not fail the need urged by the respondents and the contentions of the petitioner in that regard can only be rejected. 11. In **T.P.Gireeshbabu v. Jameela [2021 KHC 650]** this Court held thus,- '49. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line 8 R.C.Rev.No. 63 of 2021 of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430], Prasannan v. Haris [2005 (2) KLT 365], Vineethan v. Fathima and others [2016 (1) KHC 631].** In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatsoever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal 9 R.C.Rev.No. 63 of 2021 provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) ' of the Act. 12. RW1, the petitioner, deposed that he has been depending for his livelihood solely on the income derived from his grocery business in the petition schedule shop room. He has produced Exts.B1 to B3 in support of his contention. Exts.B1 to B3 are documents of license and receipts of payment of profession tax and license fees. There is no dispute that the petitioner has been doing business in the 10 R.C.Rev.No. 63 of 2021 petition schedule shop room. In the absence of any documentary evidence with regard to the income being derived by the petitioner from the business, his oral testimony alone is not enough to find that his sole source of income is the said business. As regards non-availability of buildings/rooms for availing on rent in the locality also, there is no evidence. Considering that evidence, we are of the view that the authorities below correctly had held that the petitioner failed to prove his entitlement to get the benefit of the second proviso to Section 11(3) of the Act. 13. We accordingly hold that there is no reason to interfere, in exercise of the jurisdiction under Section 20 of the Act, with the findings in the judgment of the Appellate Authority or in the order of the Rent Control Court on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 14. The learned counsel for the petitioners has made a request to afford one year time for vacating the premises pointing out the difficulty in availing another room and making 11 R.C.Rev.No. 63 of 2021 necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant six months’ time. 15. Having considered all the aspects, we deem it appropriate to grant eight months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the petitioners-landlord within eight months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further that he will conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; 12 ## R.C.Rev.No. 63 of 2021 - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioners-landlord will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr