N.C. Babu v. Roy Cheriyan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** **RCRev..No.449 OF 2019** **AGAINST THE JUDGMENT IN RCA 35/2018 DATED 14-08-2019 OF ADDITIONAL RENT CONTROL APPELLATE COURT-IV, KOLLAM** **AGAINST THE ORDER IN RC(OP) 22/2016 DATED 28-09-2019 OF ADDITIONAL MUNSIFF COURT, KOLLAM** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **N.C. BABU AGED 53 YEARS S/O. NARAYANAN, VASANTHI, PERINADU P.O., MURUTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM, PIN-691 601** **BY ADVS. SRI.PRATHEESH.P SMT.S.REKHA KUMARI SMT.S.SEETHA SMT.ANJANA KANNATH** ## **RESPONDENT/RESPONDENT/PETITIONER :** **ROY CHERIYAN, AGED 55 YEARS, S/O CHERIYAN, ROSE BUNGLOW, THRIPPILAZHIKATHU MURI, EZHUKONE VILLAGE, KOLLAM DISTRICT, PIN-691 505.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No.449 OF 2019 2 ## **ORDER** ## **Harilal, J** The revision petitioner herein is the tenant, who is confronting with an order of eviction passed against him, under Section 11(3) of the Kerala (Lease and Rent Control) Act, 1965 [for short, the Act] by the Rent Control Court, Kollam and confirmed by the rent control appellate authority in appeal. The parties are referred to as landlord and tenant respectively. 2. The case of the landlord is that, he needs the plaint schedule building, for starting a furniture business of his own, to eke-out his livelihood. According to him, after returning from gulf countries, he intends to start a business of his own for his livelihood. He RCRev..No.449 OF 2019 3 has no other buildings of his own to start the proposed business; whereas several other buildings are available in the locality to shift the business of the tenant from the tenanted premises. So also the tenant is not depending mainly on the income derived from the business in the tenanted premises. 3. The tenant resisted the claim for eviction on the ground that the need projected is not _bona fid_ e, and he is entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. With the aforesaid averments, the tenant/revision petitioner prayed for dismissal of the rent control petition. 4. On the aforesaid contentions, both parties adduced evidence and after considering the evidence on record, the court below allowed the claim for eviction, under Section 11(3) of the Act, on a finding RCRev..No.449 OF 2019 4 that the need projected by the landlord/respondent is _bona fide,_ the claim for eviction is not negated by the first proviso to Section 11(3) of the Act and the tenant/revision petitioner is not entitled to get protection, under the 2[nd] proviso to Section 11(3) of the Act. Therefore, the landlord-respondent is entitled to get an order of eviction, under Section 11(3) of the Act. In appeal, the Appellate Court also, after re-appreciating the evidence on record, concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the legality and propriety of the findings, whereby the rent control court has passed the order of eviction, under Section 11(3) of the Act and confirmed by the appellate court, are under challenge in this revision petition. RCRev..No.449 OF 2019 5 5. Put it differently, the legality, propriety and regularity of the concurrent findings of the courts below, whereby the courts below have arrived at a finding, that the need projected is _bona fide_ and the revision petitioner herein is not entitled to get protection, under the second proviso to Section 11(3) of the Act, are challenged in this revision petition. 6. Heard the learned counsel for the revision petitioner. 7. Going by the impugned judgment, we find that in order to prove the _bona fides_ of the need, the landlord himself was examined as PW1 and he testified in conformity with the need projected in the rent control petition. Nothing has been brought RCRev..No.449 OF 2019 **==> picture [6 x 6] intentionally omitted <==** out in his cross examination to discredit his evidence. It is needless to say the _bona fides_ is a state of mind and the same can be proved by and himself for cross testifying affording examination by the tenant. In the instant case, the landlord is succeeded in establishing the _bona fides_ of his needs and the courts below have concurrently placed reliance on his evidence. We do not find any reason to interfere with the concurrent findings on _bona fide_ needs. 8. Coming to the first proviso, the tenant has no case that the landlord has other buildings of his own, to start the proposed furniture business. Coming to the 1[st] and 2[nd] limbs of the 2nd proviso to Section 11(3) of the Act; it is trite law that both limbs under RCRev..No.449 OF 2019 7 the 2nd proviso to Section 11(3) of the Act are conjunctive and the burden of proof is on the tenant. As regards the first limb of the 2[nd] proviso to Section 11(3) of the Act, the tenant himself, during the cross examination, admitted that he is conducting another tailoring shop, wherein five persons are employed. But, no evidence has been adduced, to prove the volume of income from the tenanted premises or from the tailoring shop. In **Shahul Hameed A. v. P.E.Abdu Razak [2016 (5) KHC 820]** , this Court held that no tenant can claim protection after hiding his income. Evidence must be adduced to prove his approximate income from the trade or business and his approximate living expenses. In the absence of any evidence to prove the approximate income from the tenanted RCRev..No.449 OF 2019 8 premises, it can be held that the tenant/revision petitioner has miserably failed to discharge the burden of proof, under the first limb of the second proviso. In the absence of any evidence under the 2[nd] proviso to Section 11(3), the courts below are justified in finding that the tenant is not entitled to get protection, under the 2[nd] proviso to Section 11(3) of the Act. 9. In the above analysis, we find that there is no illegality, impropriety or perversity in any of the findings, whereby the courts below have concurrently passed an order of eviction, under the Act. Hence, this revision petition fails and it is dismissed accordingly. 10. At this juncture, the learned counsel for the RCRev..No.449 OF 2019 9 tenant/revision petitioner sought some more time to vacate the tenanted premises. Having regard to the nature of business, which is being conducted in the tenanted premises, the tenant/revision petitioner is hereby granted six months' time from today to vacate the petition schedule building, on the following conditions: _(1) The tenant/revision petitioner shall file an affidavit, within two weeks 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, expressing an undertaking that he will vacate the petition schedule shop room within six months from today._ - _(2) The tenant/revision petitioner shall_ _deposit the entire arrears, if any, within one month from the date of receipt of a copy of_ RCRev..No.449 OF 2019 10 _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_ _landlord/respondent will be at liberty to proceed with the execution of the eviction order._ All the pending interlocutory applications will stand closed. **Sd/- K.HARILAL, JUDGE** **sd/- C.S.DIAS, JUDGE** AMV/24/12/2019