Nadeera Beevi v. Thankamma Santhakumar & Biju Santhakumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 20TH ASWINA, 1940 RCRev..No. 214 of 2018 AGAINST THE JUDGMENT IN BRCA 11/2016 of II ADDL. DISTRICT COURT. & RENT CONTROL APPELLATE AUTHRITY,KOLLAM AGAINST THE ORDER IN RC(OP) 44/2012 of ADDL.MUNSIFF COURT, RENT CONTROLLER, KOLLAM ## REVISION PETITIONER/APPELLANT/RESPONDENT: NADEERA BEEVI, D/O.ABOOBACKER,THOPPIL VEEDU,VADAKKEVILA POST,KAYYALACKAL CHERRY,ERAVIPURAM VILALGE,KOLLAM. BY ADV. SRI.P.K.SURESH KUMAR (SR.) SRI. K.P. SUDHEER SRI. C.K. SHERIN ## RESPONDENTS/RESPONDENTS/PETITIONERS: - 1 THANKAMMA SANTHAKUMAR, AGED 69 YEARS,W/O/SANTHAKUMAR,SANGAMAM,KOTTIYAM POST,KOLLAM DISTRICT.PIN-691 571. - 2 BIJU SANTHAKUMAR, AGED 40 YEARS,S/O.SANTHAKUMAR,SANGAMAM, KOTTIYAM POST,KOLLAM DISTRICT,PIN-691 571. BY ADVS. SMT.RESHMA LESLIE SRI. K.SUBASH CHANDRA BOSE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C.R. No. 214/2018 -2- ## **ORDER** ## Annie JohnJ. The revision petitioner, who is the tenant, has filed this Revision Petition challenging the order of eviction concurrently passed under Section 11(3) of the Kerala Buildings Lease and Rent Control Act ('the Act' for short). The first respondent is the landlord and she needs the petition schedule building for the second respondent to conduct a shop. The second respondent is the son of the first respondent. 2. The revision petitioner/tenant resisted the claim for eviction contending that the need projected by the respondents is false and without any _bona fides_ and it is a ruse for eviction only. She is mainly depending upon the income derived from the business which is being carried on in the petition schedule building. Further, there is no other building in the locality to shift her business. 3. The evidence consists of the oral testimony of PW1, the second respondent, and Exts.A1 to A9 were marked on the side of the respondents. On the side of the revision petitioner, RWs 1 and 2 were examined and Exts.D1 to D3 were marked. 4. The learned counsel for the revision petitioner argued that the second respondent is an Advocate on the rolls of the Bar Council and he cannot, as per law, raise a claim for running a business and that aspect R.C.R. No. 214/2018 -3- has not been considered by the courts below. He has also contended that the Rent Control Court has closed the evidence without summoning all the witnesses given in the list furnished by the revision petitioner and that the application filed by her to re-open the evidence was also rejected by the Rent Control Court without hearing the revision petitioner and without even posted the case before the Bench. He has further submitted that the revision petitioner/tenant is entitled to the benefit of the first and second proviso to Section 11(3) of the Act and the same has not been considered by the Rent Control Court as well as the Rent Control Appellate Authority. 5. According to the respondent/landlord, the revision petitioner has taken the building on rent and the rent was Rs.9500/- per month. The first respondent has life interest over the petition schedule building. At present, she is working in Gulf Countries. It is true that the second respondent is an advocate in the role of the Bar Council of Kerala; but, he is now employed in gulf countries and he _bona fide_ requires the petition schedule building for starting a business on Electrical goods and appliances. The period of work visa in the name of the second respondent is about to expire. The learned counsel for the respondents argued that there is no legal impediment for the second respondent, who is an advocate in the role of Bar Council of Kerala, to conduct business of his choice. R.C.R. No. 214/2018 -4- 6. The revision petitioner/tenant has placed reliance on Ext.B2 certificate issued from the Bar Council of Kerala to prove that the name of the second respondent is included in the role of the Bar Council of Kerala with active status. The second respondent, while examined as PW1, has deposed before court that he has enrolled as an Advocate in the year 1999; but he never practised as a lawyer. He has further deposed that he has been working in gulf countries since 2004 and at the time of filing the application, he was working in Qatar and his employment visa was about to expire on 23.09.2015. He has strenuously argued that the second respondent as an advocate having active status, may not have applied for eviction and the order of eviction granted by the Rent Control Court is in violation of the provisions of the Advocates Act. In order to controvert this fact, he, while examined as PW1, has deposed that before joining the job in gulf countries, he has applied for suspending his membership. But he has not produced any document to prove this fact. 7. RW1, while he was in box, has testified and admitted that for the last several years, the second respondent has been working abroad and he is getting reasonable income from his job in gulf countries and is not intending to start any business in the petition schedule building. There is no bar in starting a business by an advocate and the only thing is that he should not practice as an advocate. RW1 could not able to R.C.R. No. 214/2018 -5- substantiate that PW1 is actively practicing as an advocate; but he has admitted that PW1, the second respondent, had been in gulf countries for the last several years. That indicates that the second respondent is not actively practising as a lawyer. Eventhough his name is in the role of the Bar Council of Kerala, that will not sufficient enough to prove that he is actively practising as a lawyer. Another contention of the revision petitioner is that the second respondent has not started any business therein. Unless and until the respondents have got the petition schedule building vacant, the second respondent could not start any business. According to the second respondent, only after obtaining the vacant possession of the petition schedule building, he can apply for suspending his membership. The second respondent, while examined as PW1, has clearly deposed about his _bona fide_ requirement to start an electrical shop in the petition schedule building. The second respondent has also adduced evidence regarding his intention. He has also deposed that his wife as well as the first petitioner are ready to assist him in the proposed business. So, the fact that the second respondent is in the role of the Bar Council of Kerala having active status is not an impediment to discredit the genuineness of the _bona fide_ need put forward by him. ## 8. In _**Nalakathu Saidali Haji v. Kalluparamban Musthafa and**_ _**others**_ [2015 (4) KHC 815], it is held that mere fact that the landlord is still holding an employment visa does not militate against the case R.C.R. No. 214/2018 -6- pleaded by the landlord regarding the _bona fide_ requirement of the building. It is further held that the question whether a particular need is _bona fide_ or not is to be judged by the court by placing itself in the position of the landlord. 9. On the strength of the above, we do not find any illegality or impropriety in the findings entered by the courts with regard to the eviction under Section 11(3) of the Act. When the ingredients as contemplated under Section 11(3) of the Act is proved, the duty caste upon the revision petitioner/tenant to prove his income and he cannot claim protection under the second proviso by hiding his income. It is a settled principle that in order to get the protection of proviso to Section 11(3) of the Act, the burden is upon the tenant to prove both the limbs of the provisos. The case of the revision petitioner is that her husband has several physical ailments and she and her family is mainly depending on the income which derives from the business being conducted in the petition schedule building. But, the respondent/landlord has taken a contention that the business in the petition schedule building is the family business of the revision petitioner and they have several other shop rooms under the name and style and they are not depending on the income from the business carried on in the petition schedule building. RW1, who was the power of attorney holder, was examined. It is very pertinent to note that the revision petitioner has not turned up R.C.R. No. 214/2018 -7- for giving evidence before court. According to RW1, the revision petitioner was unable to speak due to her bad physical condition. The respondent/landlord has produced Ext.A9, which would reveal the registration under the Kerala Value Added Tax from Commercial Tax Department issued in the name of RW1 for conducting the shop room in the name and style of 'Boots and Boots' at Attingal. RW1 has denied the said registration in his name and stated that he is now residing at Pallimukku, Kollam. During cross examination, he has admitted that he started residing at Pallimukku after his marriage and before that he was residing at Mudappuram mentioned in Ext.A9 and it supports the case of the respondent/landlord that the business in the petition schedule building is the family business of the revision petitioner. It was further argued by the learned counsel for the revision petitioner that RW1 was living separately with his wife and children and he has no connection with the business in the petition schedule building. It is also admitted by RW1 that his mother is conducting business on footwear in the petition schedule shop room. The respondent/landlord has relied on Ext.A7 envelope in which several branches of the shop under the name and style of 'Boots and Boots' are mentioned. But, this fact has been denied by the revision petitioner. Ext. A2 rent deed and the prior lease deed reveal that the respondent has taken the petition schedule building on lease for conducting a business under the name and style of 'Boots and R.C.R. No. 214/2018 -8- Boots'. Initially, the petition schedule building was taken on rent by the mother of the revision petitioner and later the revision petitioner became the tenant of the said building. RW2 was examined and Ext.B1 was marked to substantiate the case of the revision petitioner that there are no other branches for 'Boots and Boots Model Footwears' which is being run in the petition schedule shop room. As per Ext.B1, the revision petitioner has taken the permit to conduct the business under the name and style of 'Boots and Boots Model Footwears' and that it has no other branches. During cross examination, RW2, the Commercial Tax Officer, Commercial Tax Department, testified that it was not clear from Ext.B1 that the said shop has got other branches. According to RW1, the average monthly income from the business in the petition schedule building is `20,000/- and is fully depending upon the income derived from the petition schedule building. According to the revision petitioner, no other suitable vacant rooms are available in the locality to shift the business from the petition schedule building. RW1, during cross examination, has also denied the availability of other buildings in the locality. The burden is heavily upon the revision petitioner/tenant to adduce evidence to the effect that no other buildings are available in the locality to shift her business. He has not taken any Commission to ascertain the same. In the absence of such an evidence, the revision petitioner is not entitled to get the benefit of the first and second R.C.R. No. 214/2018 -9- provisos to Section 11(3) of the Act. Another contention raised by the revision petitioner is that she has not obtained any opportunity to examine the witnesses in the witness list. In this connection, I have gone through the 'B' diary, which reveals that more than sufficient opportunity was given to the revision petitioner/tenant to adduce evidence before the trial court. After closing the respondents' evidence in October, 2015, the evidence was re-opened on 04.11.2015 on the application filed by the revision petitioner/tenant. Thereafter also, several opportunities were given by the Rent Control Court to adduce evidence. According to the revision petitioner/tenant, on 12.01.2016, he has filed an application to review the order dated 04.01.2016 closing the evidence of the respondents. On the next day itself, i.e., on 13.01.2016, the learned Munsiff has dismissed the application and there was no posting for the case on 13.01.2016. In fact, the records reveal that when the case was posted for trial on 01.07.2015, the respondent was present; but the petitioner was absent. The case was adjourned to 06.07.2015 for recording the evidence. On that day itself, the respondent was examined and the documents were marked. After closing the respondents' evidence, the case was adjourned to 09.07.2015 for recording the revision petitioner's evidence. It is also evident that nine postings were given for recording the evidence. On 12.08.2015, RW1 was examined and the documents were also marked. R.C.R. No. 214/2018 -10- The case was adjourned for further evidence to 31.08.2015 and thereafter it was repeatedly adjourned. On 06.10.2015, the revision petitioner's evidence was closed and the case was posted for hearing to 15.10.2015. After three adjournments, on the application filed by the revision petitioner, the evidence was re-opened on 04.11.2015 and the case was adjourned to 12.11.2015 for further evidence. On 18.12.2015, one witness was examined as RW2 on the side of the revision petitioner and the case was again adjourned for the revision petitioner's further evidence. After giving two more opportunities, the revision petitioner's evidence was again closed on 04.01.2016 and the case was adjourned to 12.01.2016 for hearing. On that day also, the case was adjourned to 19.01.2016 as a last chance. Thereafter, on 12.01.2016, the revision petitioner has filed an interlocutory application for re-opening the evidence and the same was dismissed on 13.01.2016 without any posting on that day. According to the revision petitioner, there is illegality in considering the aforesaid application on 13.01.2016 without giving a chance for him to advance his arguments. On going through the entire files and the 'B' diary, it is turned out that several opportunities were given to the revision petitioner to adduce evidence; but she was lagging the matter by filing applications one by one and seeking adjournments. On the strength of the evidence adduced by the respondents and also the arguments advanced by the revision petitioner, R.C.R. No. 214/2018 -11- the case was disposed of by finding that the respondents _bona fide_ required the petition schedule building for the purpose of starting a business. Even though revision petitioner was given sufficient opportunities to examine the witnesses, her grievance is that she could not examine the witnesses fully by exhausting the witness list. The non- examination of few witnesses in the witness list is not a ground to reverse the findings entered by the Rent Control Appellate Authority. Absolutely, we do not find any merit in the contentions and the arguments advanced by the learned counsel for the revision petitioner. The learned counsel for the revision failed to substantiate his contention that due to the non-examination of the witnesses that the revision petitioner failed in her case. 12. On going through the evidence and the arguments advanced by both sides, we do not find any infirmity or illegality in the findings of the courts below and it is only to be upheld. In the result, this Revision Petition is dismissed. 13. However, the learned counsel for the revision petitioner seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given eight months' time to vacate the tenanted premises on the following conditions: 1. The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the R.C.R. No. 214/2018 -12- Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that she will vacate the petition schedule shop room within eight months from today. 2. The revision petitioner/tenant shall deposit the entire arrears, if any, within one month 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, 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 respondents/landlord will be at liberty to proceed with the execution of the eviction order. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv/sl_ **//True copy//** **P.S. To Judge** R.C.R. No. 214/2018 -13-