Maroli Rajan v. Velandi Parayi Somasundaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 17TH DAY OF MARCH 2017/26TH PHALGUNA, 1938** **RCRev..No. 17 of 2017 (A) -------------------------** **AGAINST THE JUDGMENT IN RCA.14/2013 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT - III,) THALASSERY DATED 04-07-2016** **AGAINST THE ORDER IN RCP.6/2012 of RENT CONTROL COURT (MUNSIF COURT), KUTHUPARAMBA DATED 15-11-2012** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **----------------------------------------** **MAROLI RAJAN, AGED 54 YEARS, S/O.KUNHIKANNAN, TAILOR KUTHUPARAMBA AMSOM, NARAVOOR DESOM NEAR AMRUTHA WORK SHOP, KANNUR DISTRICT THALASSERY TALUK.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENT/APPELLANT/PETITIONER:** **--------------------------------** **VELANDI PARAYI SOMASUNDARAN, AGED 67 YEARS, S/O.NANU, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, KANNUR DISTRICT, THALASSERY TALUK, PIN-670643.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. --------------------------R.C.R. No.17 of 2017 --------------------------Dated this the 17[th] day of March, 2017 ## O R D E R ## Harilal, J. The revision petitioner is the tenant in the Rent Control Petition, against whom an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, 'the Act') has been passed in Appeal. (The parties are referred to as in the RCP). The Appeal was filed by the landlord challenging the order dismissing the Rent Control Petition filed by him. 2. According to the petitioner, he is aged 65 years, and presently he is not having any avocation and due to illness he is not able to engage himself in any manual labour as before. The tenanted premises is situated very close to his residential building. He bona fide intends to start a stationery business and he has sufficient financial capacity for commencing that business. Even though on two earlier occasions he had sent notice demanding surrender of the shop room which was let out to the respondent, in the RCR.17/17 **:2:** meanwhile he fell ill and could not proceed with the said notice issued at that time. The respondent contended that the bona fide need is a ruse for eviction and motivated by refusal to give enhanced rent as demanded by the petitioner. Earlier, the rent was Rs.450/- per month. Subsequently, it was enhanced to Rs.500/-, 600/-, 650/- and 700/- respectively, which is the prevailing rate of rent. About five months prior to the filing of the petition, the landlord again demanded for enhanced rent of Rs.1000/-. But he refused to pay the said amount and this motivated him to file RCP for eviction. The petitioner is a construction worker and his intention is only to pressurise him for getting the enhanced rent. 3. On the aforesaid rival pleadings, the parties adduced evidence both oral and documentary. After considering the evidence on record, the trial court dismissed the petition on two findings. Firstly, the tenant has proved his entitlement of protection under the twin provisos to Section 11(3) of the Act. Secondly, the petitioner had demanded enhanced rent thrice, under the RCR.17/17 **:3:** threat of eviction; but, thereafter, he did not proceed with the eviction. So, the need is only a ruse for enhancing the rent. 4. In appeal, the appellate court re-appreciated the evidence on record and reversed the aforesaid finding. Going by the impugned judgment passed by the appellate court, the appellate court found that the petitioner was aged 65 years and he has not commenced any business so far. His intention to commence business can only be genuine, particularly when the petition schedule shoproom is situated in the residential compound of the petitioner. 5. As rightly held by the lower appellate court, there is no age bar for starting a business, if the person who intends to start business has mental and physical state of mind and health. The aforesaid view is supported by the decision of this Court in **Mangada Susheela and othersv. Thavarayil Balakrishnan and others** [2014(1) KHC 817], wherein this Court held that mere fact that the landlord has attained the age of 60 years is not a ground to hold that he cannot aspire to conduct a hotel business at RCR.17/17 **:4:** that age. There is no age restriction in the matter of starting or conducting a business. The Rent Control Court is not justified in rejecting the petition on the ground that the petitioner has attained the age of 60 years. In the light of the above decision, the Appellate Authority is justified in reversing the findings of the Rent Control Court in this respect. 6. Coming to the next ground, it is true that the petitioner has consecutively demanded the enhanced rent and the rent was enhanced from Rs.450/- to Rs.750/-. So also, the petitioner has sent notice demanding surrender of the shop room. As rightly held by the Appellate Authority, merely on the reason that the petitioner had thrice sent notice demanding surrender of the shop room and thereafter he did not proceed with the eviction proceedings, it cannot be held that the need projected at this time is also a ruse for enhancing the rent. More over, the petitioner himself has given explanation for not proceeding with eviction after issuing notice to the respondent. According to the petitioner, after sending RCR.17/17 **:5:** notice to the respondent, he was laid up for a long time. Therefore, he could not proceed with the eviction proceedings against the respondent. When the reason for not proceeding with the eviction stands well explained by the petitioner himself in his evidence, this Court also finds that there is no reason to doubt the explanation given by the petitioner. Therefore, the consecutive demand for enhanced rent with the threat of eviction cannot be taken as a ground to arrive at a finding that the present need is not genuine. The above view is supported by the decision reported in **Kurian K. Kuriakose v. Usha Cherian and Others** [2008 (1) KHC 731], wherein this Court held that demand for increased rent itself is not a ground to reject the claim for eviction on the ground of bona fide need. A landlord may legitimately expect reasonable return of his investment and a genuine claim for vacant possession on the ground of bona fide need cannot be doubted on the ground of earlier demand for enhanced rent. Thus, the findings of the Appellate Authority are justified by authoritative pronouncement of this Court in this respect. RCR.17/17 **:6:** 7. Coming to the protection under the provisos to Section 11(3) of the Act, it is trite law that the burden is on the tenant to prove all the ingredients required to get the benefit of the second proviso to Section 11(3) of the Act. The respondent has no case that the petitioner has any other vacant shop room in his possession other than the one occupied by his brother. So the bona fide need put forward by him is not hit by the first proviso. As regards the first limb of the second proviso, there is no evidence to show that the respondent is mainly depending on the income from the business in the petition schedule shop room. 8. Coming to the second limb of the second proviso, R.W.2, a witness examined from the side of the respondent, has stated that six rooms are lying vacant (by name Malabar Plaza situated at Kuthuparamba town). The reason for not occupying the said shop room is that the owners of those shop rooms demanded huge rent and deposit. This Court has already held that the demand of higher rent and deposit for the alternative shop rooms RCR.17/17 **:7:** cannot be taken as a ground to grant protection under the second proviso to Section 11(3) of the Act. That apart, Ext.A8 series of documents would prove that vacant rooms are available in the same locality. In the above view, the Appellate Authority is justified in finding that the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. We find no reason to interfere with the findings of the Appellate Authority as those findings are legally sustainable. The cost awarded to the respondent herein by the Appellate Authority will stand set aside. 9. At last, the learned counsel for the revision petitioner sought for some time to surrender the petition schedule shop room. The learned counsel for the respondent opposed the said request. But, this Court is of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule shop room, on terms. The revision petitioner shall surrender the petition schedule shop room within six months from today provided that he shall comply the conditions given below within the RCR.17/17 **:8:** specified time. i) The revision petitioner shall file an affidavit before the Rent Controller expressing an unconditional undertaking to surrender the petition schedule shop room within a period of six months from today and the said affidavit must be filed within one week from the date of receipt of a copy of this order. ii) The revision petitioner shall deposit entire arrear of rent, if any, within one month from the date of receipt of a copy of this order and shall continue to pay without default. iii) In the event of failure to comply any of the conditions, the time granted to vacate the petition schedule shop room would stand automatically vacated and the respondent will be at liberty to proceed with the execution. This Rent Control Revision is dismissed. Sd/- K.HARILAL, Judge. Sd/- RAJA VIJAYARAGHAVAN V., Judge. okb.