Mavilythazha Chandran v. Cheriya Valappil Subaida

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938** **RCRev..No. 59 of 2017 (E) -------------------------** **AGAINST THE JUDGMENT IN RCA.92/2013 & CROSS APPEAL of RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT COURT, VATAKARA DATED 30-01-2016** **AGAINST THE JUDGMENT IN RCP.11/2011 of RENT CONTROL COURT/ MUNSIFF COURT, KOYILANDY DATED 27-07-2013** **REVISION PETITIONER/APPELLANT IN RCA & RESPONDENT IN CROSS APPEAL/RESPONDENT IN RCP:** **--------------------------------------------------------------** **MAVILYTHAZHA CHANDRAN, AGED 60 YEARS S/O.CHANDRAN, BUSINESS, PRAMEELA BAKERY, MELUR AMSOM, DESOM P.O.MELUR, KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADVS.SRI.R.PARTHASARATHY SMT.SEEMA** **RESPONDENT(S)/RESPONDENT IN RCA/APPELLANT IN CROSS APPEAL/PETITIONER IN RCP:** **--------------------------------------------------------------** **CHERIYA VALAPPIL SUBAIDA, D/O.MUHAMMED, AGED 49 YEARS, BUSINESS PANTHALAYANI AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT -673305** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** K.HARILAL & RAJA VIJAYARAGHAVAN.V., JJ. --------------------R.C.R. No.59 of 2017 --------------------Dated this the 6[th] day of March, 2017 ## O R D E R ## Harilal, J. The Revision petitioner is the tenant and the respondent is the landlady, who has filed the Rent Control Petition under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, 'the Act'), seeking eviction of the petitioner from the petition schedule shop room, which belongs to him. The parties are referred to as in the Rent Control Petition. 2. According to the petitioner, even though the change of ownership of the petition schedule shop room was intimated to the respondent, he kept the rent in arrears from 13.9.2004 onwards. Though she had sent a notice demanding the arrears of rent, the respondent refused to pay it. The petitioner's son is unemployed and he is depending upon the petitioner for his livelihood. So the RCR.59/17 **:2:** petition schedule shop room is required for starting a wholesale business for the petitioner's son. The petitioner has no other building or shop in her ownership and possession to accommodate her son. The respondent is not depending upon the income which is derived from the business in the petition schedule shop room. He is conducting a bakery in the name and style, “Prameela Bakery”, at Koyilandy. Several other shop rooms are available in the locality to shift the business from the petition schedule shop room. The respondent is in possession of a building reasonably sufficient for his requirement. Hence the petition was filed seeking an order directing the respondent to put the petitioner in possession of the petition schedule shop room. 3. The respondent/petitioner herein denied the bona fide of the need alleged in the petition. According to the respondent, it is a ruse for eviction only. He denied the allegation that he had kept the rent in arrears. He further contended that the petitioner is conducting a distributing RCR.59/17 **:3:** agency of Bharath Gas and is having sufficient properties. The Gas Agency is being run by the petitioner's son for whom the petition schedule shop room is sought to be evicted. The respondent has set up a bakery oven in the petition schedule shop room and it is very difficult to get a suitable alternative place for setting up a bakery oven. There is no facility to accommodate a baking oven in Prameela Bakery at Koyilandy. He is producing bakery items from the petition schedule shop room and supplying the same to the retail dealers and private parties and the said production work cannot be done in the Prameela Bakery, which is being run by the respondent at Koyilandy. The income from the business which is being conducted in the petition schedule shop room is the main source of income and he is mainly depending upon that income. No suitable rooms are available in the locality to shift his business. 4. On the aforesaid rival pleadings, both parties adduced evidence consists of the oral testimony of P.Ws.1 RCR.59/17 **:4:** and 2, R.W.1, Exts.A1 to A6, B1 to B16 and C1 & C2. After evaluating the evidence on record, the Rent Control Court found that the petitioner is entitled to get an order of eviction under Section 11(3) and not entitled to get the petition allowed under Section 11(2)(b) and 11(4)(iii) of the Act. 5. Aggrieved by the said order, the respondent preferred an appeal before the Rent Control Appellate Authority as R.C.A.No.92/2013. The petitioner filed cross appeal against the rejection of the claim for eviction under Section 11(2)(b) and 11(4)(iii) of the Act. After reappreciating the evidence on record, the Appellate Authority confirmed the eviction order under Section 11(3) and reversed the findings under Section 11(2)(b) and confirmed rejection of the claim for eviction under Section 11(4)(iii) of the Act. The legality, propriety and regularity of the concurrent findings under Section 11(3) and the divergent findings under Section 11(2)(b) of the Act are challenged in this Revision. RCR.59/17 **:5:** 6. Heard the learned counsel for the revision petitioner. 7. The learned counsel for the respondent/petitioner herein contended that the court below failed to appreciate the subsequent events during the pendency of the appeal, after passing eviction order by the Rent Control Court. According to the learned counsel, after obtaining the eviction order under Section 11(3) of the Act, the petitioner has transferred the property to her son for whose bona fide requirement the respondent was sought to be evicted. That apart, the petitioner has started construction of a new building, which consists of several rooms. Though the respondent had produced Exts.B17 and B18 to highlight the subsequent conduct of the petitioner after obtaining eviction order under Section 11(3) of the Act and the Commissioner had disclosed the subsequent events in Ext.C3 Report, the Appellate Authority has not considered the aforesaid evidence in its correct perspective. It is also contended that he has paid the entire amount due as RCR.59/17 **:6:** arrears of rent to the petitioner and no amount was due to the petitioner under Section 11(2)(b) of the Act. But, the Appellate Court has erroneously reversed the findings of the Rent Control Court under Section 11(2)(b) also. 8. As regards the bona fide need, the learned counsel for the respondent would contend that the petitioner has not proved the bona fide need beyond doubt, in view of the fact that the petitioner is conducting the Gas Agency and his son is managing the business. In short, the petitioner is financially very sound and affluent. Therefore, there was no need to start a new business of stationery for her son. 9. The first point to be considered is, whether there is any illegality, impropriety or irregularity in the findings whereby the Rent Control Appellate Authority reversed the dismissal of the petition under Section 11(2)(b) of the Act. 10. It is the case of the respondent that he has deposited an amount of Rs.18,000/- before the court. But the contention of the petitioner was that the respondent did not pay arrears of rent with interest and cost within 15 RCR.59/17 **:7:** days of the receipt of Ext.A2 notice and thereby she is entitled to get an order of eviction under Section 11(2)(b) of the Act. The statutory mandate under the proviso to Section 11(2)(b) of the Act is that if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or render the rent together with interest @ 2% per annum within 15 days from the date of receipt of the notice or of the renewal thereof, the landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building. In the instant case, even though the respondent had contended that he had deposited Rs.18,000/-, he failed to prove that the said amount includes the cost and interest for the delayed payment. So also, he failed to prove that the said deposit was made within 15 days from the date of receipt of the notice. Needless to say, the burden is heavy on the tenant to prove that he had paid the rent with cost and interest within the specified time to the landlord. In the absence of such evidence, the appellate court is RCR.59/17 **:8:** justified in reversing the findings of the Rent Control Court and allowing the petition under Section 11(2)(b) of the Act. 11. Coming to the challenge against the bona fide need, it is the case of the petitioner that her son is depending on her for the petition schedule building as he is unemployed and he wants to start a wholesale stationery business in the petition schedule shop room. On the other hand, the case of the respondent is that the petitioner is conducting a Gas Agency and her son is managing the said business. That apart, according to the respondent, the petitioner is financially very sound and affluent and they have no need to start a new business. ## 12. In **Shamsudheen v. Balan Nair [2014 (2) KLT** **978]** , this court held that even if the 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 determined to start another business. Further, in **Kurian v. Sunny John [2016 (2) KLT SN 124]** , this Court again held that the law does not insist that a landlord having other source of RCR.59/17 **:9:** income shall not carry out another income generating activity or venture to start a new business. Further, in **Abdul Rub v. Jobby Tharian [2003 (2) KLJ 1035]** , this Court held that law does not require that an impecunious landlord alone can think of starting an income earning activity in order that the need set up will pass through the test of bona fides. 13. In the light of the above decisions, we are of the opinion that the claim of the respondent that the petitioner is conducting a Gas Agency and her son is managing the said business will not disable the petitioner from claiming eviction of the respondent from the petition schedule shop room for starting a new business, under Section 11(3) of the Act. 14. Coming to the first proviso, the initial burden is heavy on the tenant to show that the landlord has another building of his own in his possession in the same city, town or village except whereby the Rent Control Court is satisfied with those special reasons in any particular case it RCR.59/17 **:10:** will be just and proper to do so. Here, the respondent has not adduced any evidence to show that the petitioner has been in possession of any other vacant shop room so as to conduct a wholesale stationery business in the same locality. 15. As regards the first limb of second proviso, the petitioner has produced Exts.B11 to B13. After examining Exts.B11 to B13, the courts below concurrently held that even if Exts.B11 to B13 are admitted at its entirety, those documents cannot be relied on to arrive at a finding that the respondent is mainly depending upon the income from the business which is being conducted in the petition schedule shop room as those documents are self-serving documents. Exts.B11 to B13 are not the documents which have ever been produced before any authority. They are only computer copies of his accounts. In the absence of authenticity given by the statutory tax authority, the courts below are justified in not relying on Exts.B11 to B13. 16. Coming to the second limb of second proviso, it has RCR.59/17 **:11:** come out in evidence by Ext.C1 Report that several shop rooms are lying vacant and available for taking on rent in the locality. But the respondent had, during the course of examination, admitted that even though the Commissioner has pointed out the name of the owners of those buildings, he has not made any earnest effort to enquire about the availability of those shop rooms so as to shift his business. The vacant shop rooms pointed out by the Commissioner are situated very near to the petition schedule shop room. That apart, in the pleadings itself the respondent has no case that no alternative shop rooms are available in the locality. But it is the case of the respondent that it is not possible to get a convenient room so as to set up a bakery oven. It amounts to an admission to the effect that vacant shop rooms are available in the locality; but thereafter he failed to satisfy the court as regards the alleged inconvenience to avail those rooms. Thus, the respondent has failed to discharge the burden under the second proviso to Section 11(3) of the Act also. RCR.59/17 **:12:** 17. The learned counsel appearing for the respondent vehemently contended that the courts below have failed to take note of the subsequent events and the conduct of the petitioner after obtaining the eviction order. The learned counsel further contends that it was brought out in evidence before the Appellate Court by Exts.B17 and B18 and Ext.C3 Report that the petitioner has started the construction of another building which consists of several shop rooms. According to the learned counsel, the petitioner could have adjusted one of the shop rooms in that building for her son. Further, it is contended that after obtaining the eviction order, the petitioner has transferred the petition schedule shop room to her son for whose requirement the petitioner was sought to be evicted. In the above context, the decision of this Court in **George T.I. v. K.L. Stanley [2013 (4) KHC 543]** is very relevant. In the above decision, this Court held that “Mere fact that the landlord had an opportunity to get vacant possession of another room and did not start business does not mean RCR.59/17 **:13:** that bona fide need cannot be said to be genuine. Several factors would go into the mind of the landlord and once a choice is made by landlord to take a particular room or rooms for his own occupation, even if, during the pendency of eviction petition, he comes in possession of another room, that may be immaterial.” Therefore, in view of the aforesaid decision, even if the alleged construction of the new building is admitted at its entirety, the same cannot be taken as a ground to reject the claim under Section 11(3) of the Act. That apart, in **Sarla Ahuja v. United India Insurance Company Ltd. [1998 (8) SCC 119]** the Apex Court held that a tenant cannot dictate the landlord as to how can the landlord adjust himself without getting the premises. 18. More over, we are of the opinion that the subsequent transfer of the petition schedule shop room to her son for whose need the building was required, that conduct would fortify the bona fides of the need and the respondent will not get any benefit from that conduct. In RCR.59/17 **:14:** the above view, we are of the opinion that even if subsequent conduct is admitted at its entirety, the same cannot be taken as a ground to reject the concurrent findings of the courts below as regards the bona fides of the need is concerned. 19. In the above analysis, we do not find any kind of illegality or impropriety in any of the findings of the courts below and there is no perversity in the appreciation of evidence from which those findings have arrived at. 20. At last, the learned counsel appearing for the respondent urged for granting six months time to vacate the petition schedule shop room. Having regard to the facts and circumstances of the case, we are inclined to grant four months' time to vacate the premises without any obstruction, on the following conditions:- (1). The respondent shall file an affidavit expressing an undertaking to surrender the petition schedule shop room before the court or the petitioner within a period of four months from today and the said affidavit shall be filed within one week from the date of receipt of a copy of this order. RCR.59/17 **:15:** (2). The respondent shall deposit the entire arrears of rent, if any, within one month from today before the Execution Court and shall continue to pay the rent without default. (3). In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will automatically stand vacated and the petitioner will be at liberty to proceed with the execution. This Rent Control Revision is disposed of as above. Sd/- K.HARILAL, Judge. Sd/RAJA VIJAYARAGHAVAN V., Judge. okb.