P. Prasad v. K. Laila

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE EASWARAN S. FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 ``` ``` RCREV. NO. 114 OF 2020 ``` ``` AGAINST THE JUDGMENT DATED 11.03.2020 IN R.C.A. NO.195 OF 2013 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THALASSERY ARISING OUT OF THE ORDER DATED 25.09.2013 IN R.C.P. NO.33 OF 2011 OF MUNSIF COURT, KUTHUPARAMBA ``` ## _`REVISION PETITIONER/1ST RESPONDENT/RESPONDENT:`_ ``` P.PRASAD AGED 38 YEARS S/O. NARAYANAN, POOJA GOLD, FATHIMATH SAHMSEENA COMPLEX, IRITTY, KEEZHOOR AMSOM, DESOM, THALASSERY TALUK, KANNUR 670 703. ``` ``` BY ADV ASHWIN SATHYANATH ``` ## _`RESPONDENT/APPELLANT/2ND PETITIONER:`_ ``` K.LAILA W/O. USMAN HAJI, CHERSTI MAHAL KUTHUPARAMBA AMSOM, NARAVOOR DESOM, THALASSERY TALUK , KANNUR 670 643. BY ADV M.SASINDRAN ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RCREV. NO. 114 OF 2020 -2- ``` ## _`ORDER`_ ## _`AMIT RAWAL, J.`_ 1. The present revision petition has been filed on behalf of the petitioner/tenant against the judgment dated 11.03.2020 of the Appellate Authority rendered in R.C.A.No.195 of 2013 by reversing the judgment of the Rent Controller whereby the R.C.P. No.33 of 2011 preferred by the respondent/landlord seeking ejectment of the tenant on the ground of bona fide necessity was dismissed. 2. Respondent/landlord Smt.Laila preferred a Rent Control Petition bearing No.33 of 2011 on the ground that she acquired the building on 25.03.2005 and at the time of the acquisition the scheduled room was already in occupation of the tenant, but on purchasing of the property tenant adorned her as a landlord by execution of a licence deed dated 25.04.2005 for a period of two years and thereafter lease agreement dated ``` RCREV. NO. 114 OF 2020 -3- ``` 20.04.2007 was executed rent at the rate of Rs.1,500/per month with an increase of ten percent(10%) after two years and claimed the ejectment of the petitioner/tenant on the following grounds: i) Non payment of the rent/arrears and electricity and water charges. ii) Bona fide necessity on the premise that she has no employment or job and wanted to start a business of ready-made clothes in the schedule room being dependent upon her husband P.Usman Haji for the purpose of starting the business. It was clarified that at the time of seeking the ejectment, was not in occupation and possession of the vacant rooms. She has sufficient experience in the proposed business and have financial means to start. Respondent is not dependent upon the livelihood of the income and therefore cannot claim the plea of hardship. 3. Registered notice dated 24.02.2011 was sent. ``` RCREV. NO. 114 OF 2020 -4- ``` But the possession was not handed over. 4. Petitioner/tenant appeared and objected to the grounds taken in the petition and stated that he was not in arrears of rent, the rent upto January, 2011 had been given without issuance of receipt. As regards the plea of bona fide it was categorically stated that the landlord, her husband and the children are already settled in Gulf and she has no intention to settle here. They have enough property at their disposal and deriving sufficient rent and therefore could not be said to be dependent on the income of her husband. It was categorically stated that very recently that is before filing of the petition, had let out three rooms to three parties in the scheduled building and had been in possession of almost thirty(30) rooms. In fact landlord had refused to accept the rent with intention to seek ejectment on the ground of arrears. Since both the parties were at variance, Rent Control court framed the following issues: 1. Whether the petitioners are entitled to get an order of ``` RCREV. NO. 114 OF 2020 -5- ``` eviction under section 11(2)(b) of the Kerala Building (Lease and Rent Control) Act on the ground of non payment of rent by the respondent? 2. Whether the petitioners are entitled to get an order of eviction under Section 11(3) for their bonafide need? 3. Relief and Cost. In support of their respective stand, parties brought on record following documents and examined themselves as under: ## “ ’ Petitioners Exhibits:- |<br> <br> <br>|A1<br>Nil<br>Deed of Lease enteredinto<br>between Usman Haji and his<br>wife Laila on the one side and<br>P.Prasad on the otherside.<br>A2<br>24/02/11<br>Copy of lawyer notice issued<br>by the petitioners’ counsel to<br>teh respondent.<br>A3<br>26/02/11<br>Postal Acknowledgement card.<br>Respondent’s Exhibit:-<br>B1<br>21/08/08<br>Receipt issued by P.Usman<br>Haji and K.Laija Hajumma in<br>the name of Pooja Gold.| |---|---| ``` RCREV. NO. 114 OF 2020 -6- ``` ## ’ Petitioners Witness:- PW1 Smt.K.Laila ## ’ Respondent s Witness:- RW1 Sri.P.Prasad ” 5. Learned Rent Controller ordered the ejectment of the petitioner/tenant on the ground of arrears of rent as provided under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1956 (hereinafter referred to as ‘1956 Act’, for short) but dismissed the petition on the ground of personal necessity sought under Section 11(3). Tenant was granted two months' time to pay the arrears of rent which has been paid and therefore the ground of ejectment on the arrears of rent would no longer subsist in view of the provisions of Clause (c) of Sub section 2 of Section 11 of the Act. 6. Respondent/landlord against the refusal to ``` RCREV. NO. 114 OF 2020 -7- ``` grant eviction on the ground of bona fide preferred R.C.A bearing No.195 of 2013 before the Appellate Authority. Appellate authority on re-appreciation of the evidence both oral and documentary reversed the findings of the Rent Controller and ordered eviction on the ground of bona fide. It is in that background the tenant is before us in the revision petition. 7. Learned counsel appearing on behalf of the petitioner/tenant by laying the challenge to the order of the Appellate authority raised the following submission: (i) Landlord failed to discharge the burden with regard to the categoric assertion in the written statement qua conscious possession and occupation of thirty three(33) rooms and leasing out three rooms before the institution of the ejectment petition and would be thus protected by the proviso’s added under sub-section (3) of Section 11 of the Act. (ii) The appellate authority failed to advert that the ``` RCREV. NO. 114 OF 2020 -8- ``` respondent landlord had no intention to occupy the building and had not taken any steps to obtain licence for carrying on the business. Except the oral testimony no other documentary evidence had been placed on record to belie the contention with regard to the settlement of her husband and the family members in Gulf. 8. On the other hand, learned counsel appearing on behalf of the landlord contended that the onus to claim the benefit of the proviso, heavily rests upon the tenant. Despite landlord been extensively cross examined, except bald assertions and suggestions, no concrete materials and evidence has been placed on record to establish the assertions recorded in the objection, thus, the onus remain undischarged. It was very convenient for the tenant to summon the tenants in occupation of the three(3) rooms and also take the assistance of Advocate Commissioner with regard to the possession of thirty-three (33) rooms. ``` RCREV. NO. 114 OF 2020 -9- ``` 9. Rent Controller failed to notice the specific cross examination of the landlord while rejecting the ground of bona fide and urged this Court for upholding the finding of appellate authority being the last Court of fact and law. 10. We have heard the learned counsel for the parties and appraised the paper book. 11. Section 11(3) and the proviso added therein of the 1965 Act reads as under: “(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he _bona fide_ needs the building for his own occupation or for the occupation by any member of his family dependent on him. Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons in any particular case it will be just and proper to do so; Provided further that the Rent Control Court shall not give any direct to a tenant to put the landlord in possession if such tenant is depending for his livelihood mainly on the ``` RCREV. NO. 114 OF 2020 -10- ``` income derived from any trade, or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business; Provided further that no landlord whose right to recover possession under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year form the date of such transfer; Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he _bona fide_ needs the building for his own occupation or for the occupation of any member of his family dependent on him.” 12. On perusal of the aforementioned provision it is evident that the proviso’s are the exceptions available to the tenant to belie the stand of the landlord for seeking the ejectment on the ground of bona fide necessity for which onus heavily relies upon the tenant to lead evidence to take the benefit of such proviso’s. Learned appellate authority while reversing the finding of the Rent Controller in paragraph Nos.10 and 11 held as under: ``` RCREV. NO. 114 OF 2020 -11- ``` “10. In these circumstances, now let us consider the oral evidence adduced by PW1 and RW1. PW1 specifically stated in the evidence that she is intending to start a ready made garment business in the petition schedule building and hence she is entitled to get an order of eviction u/s.11[3] of the Act. PW1 had also stated in the evidence that she is not in possession of any vacant building suitable for her proposed business. PW1 had also contented that she was depended on her husband during the relevant time of the petition for the petition schedule building for starting the proposed business. At the same time, the respondent contented that PW1 and her husband are in possession of vacant shop rooms suitable for the proposed business of PW1 and therefore, they are not entitled to get an order of eviction u/s.11 [3] of the Act. At the same time, it is well settled position of law that the burden is on the landlord to show the special reason, if it is shown that the landlord is in possession of a vacant shop room. The Hon’ble High Court of Kerala in **Chacko P. Mathew v. Kuttappan [2002 [2] KLT SN 52** at page 42], held that; “the initial burden to show that the landlord has another building of his own is on the tenant and if such an evidence is adduced, then it is the ``` RCREV. NO. 114 OF 2020 -12- ``` ## burden of the landlord to establish special reasons.” At the same time, section 11 [3] of the Act, says that “no court shall direct the tenant to put the landlord in possession of the tenanted premises if the landlord is in possession of another building in the same city, town or village except where the rent control court is satisfied that for special reason, in any particular case, it will be just and proper to do so. At the same time, even though the respondent contented that the petitioners are in possession of vacant shop rooms and they had even let out three buildings to other tenants during the pendency of the petition, there is absolutely no other evidence to substantiate the said contention. If the petitioners were in possession of vacant shop rooms as contended, it could have been proved by adducing other documentary evidence. But that was not done by the respondent. In these circumstances, it can only be said that the appellant and her husband were not in possession of any vacant shop rooms during the relevant time as contented by the respondent. Therefore, it can only be said that the claim of the appellant for eviction u/s.11[3] of the Act, is not hit by the first proviso to Sec.11 [3] of the Act. ``` RCREV. NO. 114 OF 2020 -13- ``` 11. At the same time, PW1 specifically stated in the evidence that she is intending to start a ready made garment business in the petition schedule building and that the petition schedule building is sufficient and suitable for her proposed business. At the same time, it is a fact that during the relevant time of the petition, husband of PW1 was working abroad and her elder sons were settled abroad and her younger daughter was studying abroad. But in the crossexamination PW1 stated that her husband went abroad just four days before and till then he was available in their native place. She had also stated in the evidence that on 24.08.2013, her husband came to their native place. She had also stated in the evidence that they are in possession of 33 rooms at their native place adjacent to the petition schedule building. It would show that PW1 and her husband were not permanently settled abroad. It has also come out in the evidence of PW1 that even though her husband was working abroad and she also used to visit her husband and children abroad she was permanently residing at her native place during the relevant time and managing their properties including the shop rooms let out to various tenants. It has also come out in the evidence that PW1 has absolutely no other job or business. But RW1 in the evidence stated ``` RCREV. NO. 114 OF 2020 -14- ``` that the petitioner is doing business abroad, but there is absolutely no other evidence to prove the said contention. At the same time, in **Kurian P.V. v. Sunny John [2016 [2] KHC 260]** , the Hon’ble High Court of Kerala held that, “merely because the landlord is a retired employee and getting good income by way of rent and also pension is not a ground to come to the conclusion that he will have to sit idle and he is not entitled to conduct any business to augment his income. So it cannot be said that the need alleged by the landlord is only an irrational desire and it was raised as a ruse to evict the tenant from the building. So under the said circumstances, the Appellate Authority was perfectly justified in coming to the conclusion that the need alleged by the landlord is bona fide and rightly set aside the finding of the Rent Control Court on this aspect.” In the light of the decisions cited above, it is clear that the fact that the appellant herein is getting income by way of rent is not a ground to hold that the need projected by her is not a bonafide one. In these circumstances, it can not ``` RCREV. NO. 114 OF 2020 -15- ``` be said that the need projected by the petitioner is without any bona fides.” 13. As regards the ground of hardship, tenant also failed to place on record any evidence that he solely depended on the business being carried out in the schedule property. It is for us to see whether the findings of the appellate authority are to be upheld on the touchstone of the evidence on record. We have gone through the trial Court record and noticed that landlord in cross examination specifically clarified that her husband had been abroad only for a short period and thereafter settled and unfortunately during the pendency of the appeal before the Rent Control Authority, he expired. Tenant cannot dictate to the landlord to occupy the rooms in her possession. There has to be a direct and cogent evidence regarding the premises in occupation. As regards the letting out of three rooms immediately before the institution of the rent petition, no evidence has been brought on record or assistance of the ``` RCREV. NO. 114 OF 2020 -16- ``` Advocate Commissioner had been taken. Thus, the tenant failed to discharge the onus and pleadings remain unproved. 14. On the other hand when the tenant examined with regard to the availability of the rooms in the vicinity, in view of the provisions of the Act he vaguely denied rather stated that he had not taken any steps to ascertain whether any vacant rooms in the building are available in the town of Iritty where the scheduled building is located. We are thus of the view that Court cannot sit in the arm chair of the landlord to examine the need which cannot be said to be whimsical or a figment of imagination. We do not find any illegality or perversity in the order impugned. No ground for interference is made out. Since the tenant has been in occupation of the premises for many years, we grant six months time commencing from 01.05.2024 to vacate the premises, at a rent of ``` RCREV. NO. 114 OF 2020 -17- ``` Rs.5,000/- (Rupees Five thousand only). It is made clear that in case the tenant does not pay the rate of rent as fixed by this court, the landlord will be at liberty to seek the possession of the property in accordance with law. ``` Sd/- ``` ``` AMIT RAWAL JUDGE ``` Sd/- _`EASWARAN S. JUDGE`_ ``` vv ```