Maran Veettil Vinod Kumar v. Koyiloth Balan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 10TH DAY OF JULY 2018 / 19TH ASHADHA, 1940 R.C Rev..No. 219 of 2018 AGAINST THE ORDER/JUDGMENT IN RCA 118/2014 of the RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT COURT, VATAKARA DATED 16-11-2017 AGAINST THE ORDER/JUDGMENT IN RCP 119/2013 of RENT CONTROL COURT/MUNSIFF COURT, VADAKARA DATED 21-07-2014 ## REVISION PETITIONER(S)/APPELLANT/ RESPONDENT: MARAN VEETTIL VINOD KUMAR S/O CHANDRASEKHARAN, AGED 58 YEARS, RESIDING AT "AISWARYA", MADAPPALLY, COLLEGE PO, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA ## RESPONDENT(S)/RESPONDENT/PETITIONER: KOYILOTH BALAN, S/O KELAPPAN, AGED 72 YEARS, MUTTUNGAL ASMOM RAYAROTH DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 106. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **K. HARILAL & ANNIE JOHN, JJ. ------------------------------------------RCR No. 219 of 2018 (C) -----------------------------------------Dated this the 10[th] day of July, 2018.** ## **ORDER** ## K. Harilal,J. The revision petitioner is the appellant in RCA No. 118 of 2014 of the Rent Control Appellate Authority, Vatakara as well as the respondent in RCP No. 119 of 2013 of the Rent Control Court, Vatakara. The revision petitioner is the tenant, who is in occupation of the building owned and possessed by the respondent herein. This revision petition has been filed challenging the order of eviction passed concurrently against the revision petitioner herein under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). 2. The parties are referred to as in the Rent Control Petition. According to the petitioner, his son Mr. Ligesh is married and has a daughter and therefore, he wants to provide an independent business of his son. Thus, he is in _bona fide_ need of the petition schedule building for starting a grocery business for his son. His son is depending upon him for the petition schedule building as the petitioner or his son has no other buildings in the locality to start the proposed business. The respondent is not mainly depending upon the income RCR No. 219/2018 -2- derived from the business carried on in the petition schedule shop room and several other alternative vacant buildings are available in the locality to shift the business of the respondent from the petition schedule building. After considering the evidence on record, the courts below concurrently found that the need projected in the petition is a _bona fide_ one and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. The legality and the propriety of the said findings are assailed in this revision petition. 3. Heard the learned counsel for the revision petitioner. 4. At the outset, we must remind ourselves the scope and extent of the jurisdiction of this Court under Section 20 of the Act. The revisional jurisdiction provided under Section 20 of the Act is confined to the examination of the legality, propriety and regularity of the findings of the courts below. There is no scope for re-appreciation of the evidence, unless this Court finds any kind of perversity in the appreciation of evidence or non-consideration of the evidence on record. The sum and substance of the arguments advanced by the learned counsel for the revision petitioner is that the courts below have not appreciated the evidence on record in its correct perspective. It is to be borne in mind that this Court cannot come to a different view, unless the concurrent findings of the courts below are perverse, illegal RCR No. 219/2018 -3- or bad by non-consideration of material evidence or misreading of evidence. The entire arguments advanced by the learned counsel for the petitioner centres around the appreciation of evidence only. The revision petitioner has no case that the findings of the courts below are illegal or improper. We have meticulously gone through the findings of the appellate authority, whereby the findings of Rent Control Court stand affirmed. 5. Going by the impugned judgment, it is discernible that in order to prove the _bona fides_ of the need, the son of the petitioner for whose need the building was sought to be evicted, was examined as PW1 and he testified in tune with the _bona fide_ need averred in the Rent Control Petition. The courts below after examining the oral testimony of PW1, concurrently found that nothing has been brought out in cross examination to make the _bona fide_ need spoken to by him in the chief examination unbelievable or incredible. In the above view, the courts below have reposed confidence in the oral testimony of PW1. We do not find any reason to hold otherwise. 6. As regards the _bona fide_ need, it is the case of the respondent that the son of the petitioner has no need to start a new business as he is also helping his father to conduct the business in a shop room adjacent to the petition schedule shop room. In the above RCR No. 219/2018 -4- context, it is to be remembered that it is the case of the petitioner that his son is married and he is the father of a child and therefore, he wants to earn income independently for his wife and child. As rightly observed by the courts below, even if the son of the petitioner is also co-operating with the business of the father, it is quite natural that the petitioner as a dutiful father has decided to set up an independent business for his son, instead of keeping him under his care, particularly when his son has grown up and established his own family. We are in agreement with the concurrent views of the courts below that the need is _bonafide._ 7. Further, it was contended by the respondent that the Rent Control Petition was intended to wreak vengeance on him for the reason that he was also a signatory in Ext.B4 mass petition filed by the other tenants before the local authority against the commencement of a chicken stall in another shop room owned by the petitioner. It is discernible from the impugned judgment that the courts below meticulously examined the said contention in the light of Ext.B4 and found that the aforesaid contention is only a misunderstanding of the respondent. No inference can be drawn from Ext.B4 that the petitioner or his son was nursing any kind of animosity towards the respondent alone. Though the respondent has made an attempt to RCR No. 219/2018 -5- substantiate the said contention, the courts below concurrently observed that going through the entire materials, the case of animosity projected by RW2 is totally unreliable and is not credit worthy. 8. Coming to the first proviso to Section 11(3) of the Act, the case of the respondent is that the first floor of the building is lying vacant and the petitioner could have occupied the same to start the business for his son. But when the respondent was examined as RW1, while he was in the witness box, the petitioner offered the first floor of the building to the respondent. But the respondent declined the said offer stating that it is not suitable as the ingress and egress of the customers to the first floor is very difficult. Thus, he himself admitted that the first floor of the building is not suitable for conducting a retail business. Further, it is contended that the petitioner is in possession of another building in which a firm by name 'More Travel Solutions' is housed. In order to substantiate the said contention, Ext.B3 series of documents were pressed into service. After examining Ext.B4 series of documents, the courts below concurrently found that Ext.B3 series alone are not sufficient to hold that the said room is lying vacant. Further it is come out in evidence from Ext.A12 notification that the said building has been acquired by the Central Government for RCR No. 219/2018 -6- widening the National Highway. As rightly observed by the courts below, no landlord will choose a building under acquisition for starting a new business, when some other buildings are owned by him. Even in the appellate stage also, the respondent has made an attempt to prove the said contention by producing Exts.B5 to B8, the copy of D&O licence and a copy of rent agreement with respect to the said building. After examining Exts.B5 to B8, the courts below observed that Exts.B5 to B8 would go to show that the rooms were let out temporarily for 11 months only for the reason that the said building is included in the acquisition proceedings evidenced by Ext.A12 notification. As rightly observed by the appellate authority, the landlord cannot be expected to commence business in a building in respect of which an acquisition notice has already been issued. Thus, we find that both the courts below have considered all the contentions raised in this revision petition and rejected the same on a proper appreciation of evidence. The courts below are justified in finding that the need projected in the petition is a _bona fide_ one and the same is not hit by the first proviso to Section 11(3) of the Act. 9. As regards the protection under the second proviso to Section 11(3) of the Act, it is needless to say that both the limbs of the second proviso are conjunctive and the burden of proof is on the tenant. But RCR No. 219/2018 -7- no evidence has been adduced to prove the claim that the respondent is depending upon the income derived from the business carried on in the petition schedule shop room and no other alternative vacant buildings are available in the locality. In _**Vineethan v. Fathima**_ (2016 (1) KHC 631), this Court held that a landlord who is hiding his income from the Rent Control Court is not entitled to get protection under the second proviso to Section 11(3) of the Act. In a case where the tenant did not disclose his income from the tenanted premises, it cannot be held that he is mainly depending upon the income from the tenanted premises for his livelihood. The respondent has not taken out a Commission for local inspection to prove that the vacant buildings are not available in the locality. Therefore, the courts below are justified in finding that the respondent is not entitled to get protection under the second proviso also. We do not find any kind of illegality or impropriety in the concurrent findings of the courts below and there is no perversity in the appreciation of evidence. Accordingly, this Rent Control Revision is dismissed. 10. The learned counsel for the revision petitioner sought for some time to vacate the tenanted premises. Having regard to the facts and circumstances of the case and in view of the arguments advanced by the learned counsel, the revision petitioner is given six RCR No. 219/2018 -8- months' time from today to vacate the tenanted premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, - within a period of one month from today. 2. The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of six months from today. 3. The affidavit shall be filed within a period of three weeks from today. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. ## **K. HARILAL, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_