NARENDRAN v. RAVI

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Raja Vijayaraghavan V.
Judgment Date: 2017-03-28
Court Decision / Holding: The revision is devoid of merits and dismissed; however, the revision petitioner is granted six months to vacate the petition schedule shop room, subject to conditions including filing an unconditional affidavit to surrender within two months and payment of arrears within two months, with default leading to automatic eviction.
Final Disposition: Revision dismissed; but six months’ time to vacate with conditions; affidavit and arrears payment required; failure to comply leads to eviction execution.

Parties to the Case

Appellants / Petitioners

NARENDRAN

Respondents

RAVI

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. Sreekumar (Chelur)

Case Synopsis & Summary

The revision petitioner, Narendran, a tenant, challenges an eviction order under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, which was affirmed by the Rent Control Court and the IV Addl. Rent Control Appellate Authority, Thrissur. The petition schedule shop room is near the Government Higher Secondary School at Chavakkad. Narendran and his wife intend to start a stationery business for school-going children, arguing that the petition shop room is the most suitable and that the wife has experience to run the business. The respondent (landlord) contends that the bona fide need is a pretext, noting the landlord’s affluence, and asserts that the petitioner’s family travels abroad during holidays; the respondent also argues that the petitioner has access to another room. The court relied on precedents holding that a landlord’s wealth does not bar a bona fide need claim and discussed the first and second provisos to Section 11(3), including that a landlord need not disclose all properties in possession. Ultimately, the revision is dismissed, but the petitioner is granted six months to vacate subject to strict conditions including an affidavit of surrender and arrears payment, with failure to comply triggering eviction consequences.

Provisions of Law Cited

Section 11(2)(b)Section 11(3)First proviso to Section 11(3)Second proviso to Section 11(3)Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he bona fide needs the petition schedule shop room for his wife to commence a stationery business serving school children; the shop is conveniently located opposite the Government Higher Secondary School, and the wife has experience to run the business. He argues that the avowed need is genuine and not a pretext, and that the court should consider the applicant’s evidence and the social utility of the proposed business.

Contentions of Respondents

The respondent opposes the eviction, alleging that the landlord and his family are affluent, and the need is a ruse; they argue that the petitioner already has access to another room and has not established the income derived from the petition shop; the respondent also asserts that the second proviso to Section 11(3) requires a showing that no vacant rooms are available in the locality, which the petitioner failed to prove.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Mavilathu Shamsudheen v. Thanthonnikandiyil Balan Nair @ Narayanan Nair	2014 (2) KLT 978	Positive	Cited to support that bona fide need cannot be rejected merely because the landlord is wealthy or affluent.
Kurian v. Sunny John	2016 (2) KLT SN 124	Positive	Used to show that wealth or other income sources do not preclude starting a new business by the landlord.
Kunju T.P. v. Fathima and Others	2014 (3) KHC 127	Positive	Supports that landlord need not plead or prove particulars of all buildings to claim eviction under the first proviso to Section 11(3).
John	2016 (2) KLT SN 124	Positive	Reiterates that a landlord with other income sources may undertake additional business ventures; aligns with the court’s reasoning on bona fide need.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939** **RCRev..No. 82 of 2017 () -------------------------** **AGAINST THE JUDGMENT IN RCA.51/2010 of IV ADDL. RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 25-10-2016** **AGAINST THE ORDER IN RCP.58/2004 of RENT CONTROL COURT, CHAVAKKAD DATED 05-07-2010** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **--------------------------------------------** **NARENDRAN, AGED 58, S/O. NEELAMBILLY VASU, PURANATTUKARA VILLAGE DESOM, THRISSUR TALUK.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT/RESPONDENT/PETITIONER:** **---------------------------------** **RAVI,** **AGED 58, S/O. KADAYANKARA DAMODHARAN, GANDHI NAGAR, GURUVAYOOR VILLAGE DESOM, CHAVAKKAD TALUK - 680 001.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **okb** K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. --------------------------R.C.R. No.82 of 2017 --------------------------Dated this the 28[th] day of March, 2017 ## O R D E R ## Harilal, J. The petitioner is the tenant who confronted with an order of eviction passed under Section 11 (2)(b) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short the Act). The aforesaid order stands confirmed in the impugned judgment under challenge. Thus, the concurrent findings whereby the petitioner is directed to put the respondent in possession of the petition schedule shop room are challenged in this Rent Control Revision filed under Section 20 of the Act. The parties are referred to as in the Rent Control Petition. 2. According to the petitioner, he bona fide needs the petition schedule shop room for running a stationery business of books, paper, pen, etc. for school going children. The said shop room is situated on the opposite side of Government Higher Secondary School, Chavakkad RCR.82/17 :2: and his wife is having experience to run the above said business. 3. The respondent contended that the bona fide need put forward by the petitioner is a ruse for eviction only. According to him, the wife of the landlord, who is living in a dignified manner, does not require the petition schedule shop room for her occupation. During school holidays, the wife of the petitioner and his children are residing abroad along with petitioner. The wife of the petitioner is not depending on the petitioner for the petition schedule shop room as she is living in affluence. It is also contended that the petitioner is in possession of another room occupied by one Sudheer Kumar. Therefore, the bona fide need put forward in the petition is hit by the first proviso to Section 11(3) of the Act. The respondent is mainly depending on the income derived from the business in the petition schedule shop room and no other shop rooms are available in the locality for shifting his business. 4. Heard the learned counsel for the petitioner. RCR.82/17 :3: 5. It is the case of the petitioner that he bona fide requires the petition schedule shop room for his wife to start a shop of stationery items and the petition schedule shop room is suitable for conducting the said business and it is situated on the opposite side of the Government Higher Secondary School. 6. Per contra, the respondent contended that the petitioner and his family members are living in affluence and there is no need to start a stationery shop for his wife. It is also contended that the petitioner's wife and children used to go abroad on holidays. 7. Going by the impugned judgment it is seen that the Appellate Authority has considered the aforesaid contention in view of the decision of this Court in **Mavilathu Shamsudheen v. Thanthonnikandiyil Balan Nair @ Narayanan Nair [2014 (2) KLT 978],** wherein this Court held that even if the landlord is a man of wealth and assets or affluence, his claim for eviction on the ground of bona fide need cannot be rejected. In **Kurian v. Sunny** RCR.82/17 :4: **John [2016 (2) KLT SN 124]** this Court again held that the law does not insist that a landlord having other source of income shall not carry out another income generating activity or venture to start a new business. In view of the aforesaid decisions, the Appellate Authority is justified in rejecting the contentions raised by the respondent that there is no need to start a stationery business for the wife of the petitioner. There was no other challenge against the bona fides of the need. 8. Coming to the first proviso to Section 11(3) of the Act, the respondent contended that another room, which is situated on the eastern side of the petition schedule shop room, is vacant and the same was not disclosed in the Rent Control Petition. In **Kunju T.P. v. Fathima and Others** [2014 (3) KHC 127] this Court held that the landlord need not plead or prove particulars of all buildings in his possession to claim order of eviction under the first proviso to Section 11(3) of the Act. That apart, going by Ext.C1 report, it is seen that the Commissioner has reported that RCR.82/17 :5: the said shop room was being used as a cassette shop at the time of his visit. After considering the commission report. the Appellate Authority found that the commission report does not show that the said room was lying vacant. More over, P.W.1 has given evidence to the effect that that shop room is a small one when compared to the petition schedule shop room. Therefore, the courts below are justified in finding that the bona fide need projected in the Rent Control Petition is not hit by the first proviso to Section 11(3) of the Act. 9. It is trite law that the burden of proof is on the tenant to prove that he is entitled to get protection under the second proviso to Section 11(3) of the Act. The petitioner has a specific contention that the respondent is having other properties, and he is running a partnership firm also. In such circumstance, as rightly observed by the Appellate Authority, burden was on the respondent to prove before the Rent Control Court by adducing satisfactory evidence that he was mainly earning from the RCR.82/17 :6: business in the petition schedule shop room for his livelihood. But absolutely there is no evidence to prove the income which is being derived from the petition schedule shop room. 10. The respondent contended that he is depending for his livelihood on the income derived from the repair works done in the petition schedule shop room. But no evidence has been produced to substantiate the said contention. 11. As regards the availability of the alternative shop rooms, the respondent has not made any enquiry as to whether vacant rooms are available in the locality for shifting his business. In short, the respondent has miserably failed to discharge the burden of proof in the second proviso to Section 11(3) of the Act. 12. On the above analysis, this Court finds that there is no illegality or impropriety in any of the findings whereby the Rent Control Court passed the order of eviction under Section 11 (3) of the Act. This Rent Control Revision is devoid of merits and dismissed accordingly. RCR.82/17 :7: 13. At last, the learned counsel for the petitioner sought for some time to vacate the petition schedule shop room. The learned counsel appearing for the respondent submitted that a reasonable time can be given to the petitioner. 14. Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given six months time to vacate the petition schedule shop room, on the following conditions: - i) The revision petitioner shall file an affidavit before the Execution Court 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 two months from the date of receipt of a copy of this order. - ii) The revision petitioner shall pay entire arrears of rent to the respondent or deposit the same before the Execution Court within two months from the date of receipt of the copy of this order and he shall continue to pay rent without default. iii) In the event of failure, the time granted RCR.82/17 :8: to vacate the petition schedule shop room would stand automatically vacated and the respondent will be at liberty to proceed with the execution. Sd/- K.HARILAL, Judge. Sd/- RAJA VIJAYARAGHAVAN V., Judge. okb.