P. Shanavas and Nousheela Firshad v Kannapparambil Poulose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937** ## **RCRev..No. 342 of 2014 ()** **-------------------------IN RCA 15/2013 of RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE - I, KALPETTA DATED 23.10.2014 IN RCP 6/2012 of RENT CONTROLLER(MUNSIFF-MAGISTRATE), SULTHAN BATHERI DATED 30-05-2013** **-----------------------------------------------------------** ## **PETITIONERS IN R.C.R./APPELLANTS IN RCA/RESPONDENTS IN RCP :** - **--------------------------------------------------------------------------------------------------------** **1. P.SHANAVAS, AGED 36 YEARS S/O.ABDULLA, PONNARATH HOUSE, NEAR VICTORY HOSPITAL SULTHAN BATHERY AMSOM, DESOM, SULTHAN BATHERY TALUK WAYANAD DISTRICT. PIN:673 592** **2. NOUSHEELA FIRSHAD, AGED 29 YEARS D/O.ABDULLA, PONNARATH HOUSE, NEAR VICTORY HOSPITAL SULTHAN BATHERY AMSOM, DESOM, SULTHAN BATHERY TALUK WAYANAD DISTRICT. 673 592** **BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** ## **RESPONDENTS IN R.C.R./RESPONDENT IN RCA/PETITIONER IN RCP:** - **----------------------------------------------------------------------------------------------------** **KANNAPARAMBIL POULOSE, AGED 56 YEARS S/O.KORA, RESIDING AT NEAR GOVT.GUEST HOUSE SULTHAN BATHERY AMSOM, DESOM, SULTHAN BATHERY TALUK WAYANAD DISTRICT. PIN:673 592** **R1 BY ADV. SMT.SARITHA THOMAS** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VS** **K.SURENDRA MOHAN & MARY JOSEPH, JJ. --------------------------------------------------------R.C.R No.342 of 2014** **---------------------------------------------------** Dated this the 13[th] day of January, 2016 ## **JUDGMENT** ## **MARY JOSEPH, J.** The judgment dated 23.10.2014 of the Rent Control Appellate Authority(Addl.District Judge-I) Kalpetta, Wayanad is assailed in this revision by the revision petitioners/tenants who are none other than the appellants in R.C.A.No.15/2013 and respondents in R.C.P.No.6/2012 respectively. The parties to this revision petition will be referred to hereinafter in accordance with their status in the R.C.P. as landlord and tenant. 2. R.C.P.No.6/2012 was filed by the landlord seeking eviction of the tenant from the tenanted premises under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965(for short 'the Act' for easy reference). _R.C.R No.342 of 2014_ _2_ 3. The landlord had let out the petition scheduled shop rooms owned by him as per agreement dated 01.06.2010 for 11 months to the tenants for running a ready made shop for a rent of Rs.8,500/- payable monthly. The tenants were prompt in paying the rent till 30.04.2011 and thereafter the payment was defaulted and thereby the same got accumulated into arrears. Despite the demand of the landlord, the rent remained unpaid, thereby he was entitled to seek eviction on the ground of arrears of rent under Section 11(2)(b) of the Act. 4. The landlord was terminated from service and being jobless, he approached the Rent Control Court, Kalpetta, seeking vacant surrender of the petition scheduled shop rooms let out to the tenants to start a stationery cum electrical shop for the sustenance of his family. 5. The tenants in the written objections filed, made specific contentions with respect to each of the grounds upon which the eviction was sought. The rent was admittedly _R.C.R No.342 of 2014_ _3_ defaulted by them after September 2011 and that too on the specific reason of refusal from the landlord to issue receipts despite frequent demands. It is contended that rent could not be paid due to the refusal of the landlord to give receipts and since they are ready to deposit the rent arrears as admitted by them in court, the claim for interest in untenable. 6. The bonafide need of the petition scheduled shop rooms was resisted by the tenants on the specific allegation that the petitioner being only a holder of Master's Degree in Economics, having no previous experience in running business is unlikely to have the skill in manning an electrical cum stationery shop. Further contentions put forth are to the effect that the order of termination from service, having been put on challenge by the landlord, there is chance for him to be reinstated, that other rooms are available in landlord's possession and that some such rooms have been let out by the landlord to third parties after raising the claim for eviction through the rent control petition in question, to _R.C.R No.342 of 2014 4_ rests its plea regarding lack of bonafides. It is the specific case of the respondent that if the need was bonafide, the landlord would not have let out vacant rooms in his possession to third parties after raising the claim for eviction. 7. The Rent Control Court had considered the issues raised before it in the light of the oral evidence let in by the landlord as PW1, the tenant as RW1 and the documentary evidence let in by the landlord and rival arguments put forth by the respective counsel and arrived at a finding on all the issues affirmatively in favour of the landlord. 8. R.C.P. was allowed by the Rent Control Court on the following terms: “ _(1) The petitioner is entitled to eviction under Section 11(2) of the Kerala Building Lease and Rent Control Act. But the same shall be subject to Section 11 (2)(c) of the Act._ _(2) The petitioner is also entitled to eviction under Section 11(3) of the Act._ _(3) The respondents shall hand over vacant possession of the petition schedule rooms to the_ _5_ _R.C.R No.342 of 2014_ _petitioner within two months from today._ _(4) The petitioner is also entitled to costs of the proceedings from the respondents.”_ 9. The finding of the Rent Control Court was taken up in challenge by the tenant in R.C.A.No.15/2013 before the Rent Control Appellate Authority and the authority concerned after re-appreciation of the matter was reluctant to interfere with the finding of the Rent Control Court and dismissed the Rent Control Appeal. 10. The concurrent findings of the authorities below are under challenge in this revision. It is contended by Sri.P.B.Krishnan, the learned counsel appearing for the tenants that the Rent Control Appellate Authority has gone wrong in re-appreciating the evidence in the backdrop of the pleadings and accordingly has become instrumental in passing the impugned judgment, which suffers from illegality and impropriety in all respects. 11. Heard both sides. The lower court records are also perused. _R.C.R No.342 of 2014_ _6_ 12. The main controversy to which our attention was drawn by Sri.P.B.Krishnan, the learned counsel for the tenant was that the landlord was totally unsuccessful in establishing his claim of bonafide need of the petition scheduled shop room, but the Rent Control Court as well as the Rent Control Appellate Authority failed to appreciate the evidence on record in its right perspective and entered into a finding against the evidence. According to him, the authorities below ought to have considered the fact that the landlord was the Principal of a college and that he had no experience at all in running a stationery cum electric shop. 13. The learned counsel on behalf of the tenants has contended that it is impracticable for a person having Masters Degree in Economics and in the teaching line of profession to run a stationery cum electric shop successfully in the absence of any previous experience in the field. 14. The learned counsel gave due emphasis on the following testimony of PW1 during cross examination, _R.C.R No.342 of 2014 7_ “ - Building W çÕæù ÎáùßµZ ²ÝáMßAÞX ¾ÞX çµÞ¿ÄßÏßW çµØí æµÞ¿áJßGáIí.å1 Room ²ÝßMßAÞX ¦Ãí ¾ÞX çÕæù çµØí æµÞ¿áJÄí.åNotice. èµMxßÏÄßÈí 6 ÎÞØ¢ ÎáXÉí ¾ÞX ¦ Building-æÜ çÕæù Room Stationery µ¿ È¿JÞX ¾ÞX æµÞ¿áJßGáIí ®Kí ÉùEÞW - ÖøßÏÞÃí.å¦ Building W Chemmannur Finance ®K ØíÅÞÉÈ¢ È¿JÞX - 2012 November 20Èí 4 Room µZ ÕÞ¿µAí æµÞ¿áJá ®KáÉùEÞW - æµÞ¿ßJßGáIí. Éæf Date correct ¥Üï.å¦ Date W ¥Üï - æµÞ¿áJÄí.å2012 June 4 Èí ¦Ãí ¨ çµØí æµÞ¿áJÄí ®Kí ÉùEÞW ¦ Date ÖøßÏÞÏß ®ÈßAùßÏßÜï”, to base his contention that the authorities below failed to appreciate the admission of the landlord that four rooms available in his possession have been let out on 20.11.2012 to Chemmannur Finance and one room in the same larger building owned by him to another person to conduct a stationery shop 6 months' prior to the filing of the claim petition to hold that bonafides are totally lacking in the claim raised by the landlord. It is urged by the learned counsel that had the need alleged been bonafide, the landlord would not have let out vacant rooms available with _R.C.R No.342 of 2014 8_ him in the same building, prior to the filing of the rent control petition. According to him had the authorities below adverted to these aspects in its true perspective the impugned judgment would not have been passed to his prejudice. 15. The learned counsel also drew this Court's attention to the fact that the authorities below totally failed to take note of the claim of the tenant for protection under the 1[st] and 2[nd] proviso to Section 11(3) of the Act and that is a ground sufficient and satisfactory, to reverse the impugned judgment. 16. Per contra, Smt.Saritha Thomas, the learned counsel appearing for the landlord submitted that, the Rent Control Appellate Authority, is perfectly justified in passing the impugned judgment affirming the order of the Rent Control Court and interference by this Court in exercise of the revisional jurisdiction, the scope of which is only limited, is unwarranted. She pleaded for dismissal of the Rent Control Revision for the said reason. _R.C.R No.342 of 2014_ _9_ 17. The letting out of the petition scheduled room to the tenant in question for a monthly rent of Rs.8,500/- on the basis of an agreement of lease dated 31.05.2010 for a period of 11 months, the avocation of the landlord as Principal in Bathery Co-operative College, termination of his employment as Principal, and the challenge of the order of termination by the landlord before the Co-operative Tribunal are not matters of controversy among the parties to this revision. 18. The first and foremost condition to be satisfied for obtaining the relief of eviction under Section 11(3) of the Act is to establish the bonafides in the need raised by the landlord. Bonafide requirement is a question of fact. In the case in question the landlord has raised his claim of eviction based on his need of a shop room to start the business in electricals and stationery items. It is pertinent to note here that the landlord was the Principal of the Co-operative College at Bathery and he was terminated from the post. The _10_ _R.C.R No.342 of 2014_ fact that the landlord has a family depending on him for livelihood is not disputed. The genuineness of the need cannot be doubted on three reasons :- (1) The landlord lost his job and has no other source of income. (2) He has to maintain his family depending solely on him by sticking on to some other avocations. (3) He is literate and qualified and is having the economic resources to start the business. 19. This Court has no hesitation to hold that it is only a matter of common sense that is required to man a business. One ought not and need not be experienced in that field. No special skill or knowhow is required to start a shop for electric items and stationery articles. The landlord in the case in question is highly educated and was in dire need of a source of income. It may be that, the challenge against the order of termination ends in his favour. It is a matter of contingency for him and it is also unpredictable. A prudent _R.C.R No.342 of 2014 11_ man will not wait for the outcome of a challenge to find out an alternative arrangement of livelihood. It may take years for the appeal to be disposed of. Sometimes it may happen in the immediate future. Needless to observe, it is a matter totally out of the landlord's control, but, finding out ways to sustain and maintain his family is his concern of utmost importance and something within his realm. The tenant is not supposed to dictate terms to the landlord in the matter of decision making as to his destiny. The landlord alone can be the master of his plans and in the case on hand himself having chosen the path and raised his claim to fructify the same, it is improper and unjust to view the bonafides in his claim with a suspicious eye. Indisputably, bonafides is there in his claim for vacant surrender of the shop room and his desire to start with an alternative avocation for him. 20. It is the further argument of the learned counsel for the tenant that the Rent Control Court has failed to appreciate his evidence and erred in denying him the _R.C.R No.342 of 2014_ _12_ protection under both the provisos to Section 11(3) of the Act. Section 11(3) of the Act contain within it two circumstances under which the Rent Control Court is barred from issuing an order of eviction, even though the bonafide need is established by the landlord. 1[st] and 2[nd] proviso to Section 11(3) reads as follows; _“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 were 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 direction to a tenant to put the landlord in possession if such tenant is depending for his livelihood mainly on the 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 a trade or business.“_ 21. Therefore if the landlord has another building of his own in his possession in the same city or town or village, the Rent Control Court shall not give an order of _R.C.R No.342 of 2014 13_ eviction except when the court is satisfied that in any particular case for such reasons, it will be just and proper to do so. The burden of proof to establish that the landlord has ownership and possession of another building in the same city, town or village is on the tenant who claims the benefit of the first proviso. When this primary burden is discharged by the tenant by showing that the landlord has a building of his own in his possession, the burden to establish the special reasons will be shifted to the landlord. Therefore it is the primary burden of the tenant to point out the existence of a shop room in the ownership and possession of the landlord and if no reason is shown by the landlord for not occupying the said room, the Rent Control Court is empowered to give an order of eviction. 22. Our attention was drawn by the learned counsel to the factum that the tenant was successful in discharging his initial burden cast on him under the 1[st] proviso to Section 11(3) by letting in evidence that the _14_ _R.C.R No.342 of 2014_ landlord had in his possession vacant rooms and after the filing of the petition seeking eviction, has let it out to various person. It is urged by the learned counsel that during cross examination the landlord had made an admission that four rooms have been let out by him to Chemmannur Finance on 20.11.2012. According to the learned counsel, as per the said statement, admittedly of the landlord he had let out rooms to third parties after the filing of the rent control petition and that will strike at the root of the bonafides of his claim under Section 11(3). It is argued by the learned counsel that the Tribunal failed to take note of this aspect and therefore erred in finding bonafides in the claim and ordering eviction under Section 11(3) of the Act. In this context, it is pertinent to note from the evidence of PW1 that during cross examination, a statement in the nature of an admission was - made to the effect that “Building W çÕæù ÎáùßµZ ²ÝáMßAÞX ¾ÞX çµÞ¿ÄßÏßW çµØí æµÞ¿áJßGáIí.å1 Room ²ÝßMßAÞX ¦Ãí ¾ÞX çÕæù çµØí æµÞ¿áJÄí.åNotice. èµMxßÏÄßÈí 6 ÎÞØ¢ ÎáXÉí ¾ÞX ¦ Building- _R.C.R No.342 of 2014 15_ æÜ çÕæù Room Stationery µ¿ È¿JÞX ¾ÞX æµÞ¿áJßGáIí ®Kí - ÉùEÞW ÖøßÏÞÃí.å¦ Building W Chemmannur Finance ®K ØíÅÞÉÈ¢ - È¿JÞX 2012 November 20Èí 4 Room µZ ÕÞ¿µAí æµÞ¿áJá ®KáÉùEÞW æµÞ¿ßJßGáIí.”. But, at the very next moment without any intervention being made from any corner, PW1 - had stated “Éæf Date correct ¥Üï.å¦ Date W ¥Üï - æµÞ¿áJÄí.å2012 June 4 Èí ¦Ãí ¨ çµØí æµÞ¿áJÄí ®Kí ÉùEÞW ¦ Date ÖøßÏÞÏß ®ÈßAùßÏßÜï”. This part of the version of PW1 appears to us, a spontaneous clarification of the statement preceding that as stated _supra_ . Therefore, this Court finds no reason to segmentalise the version of PW1, so as to give it the colour of admission as canvassed by the learned counsel. On a reading of the part of the deposition cited _supra_ , the admission of the landlord is strictly confined to the factum of letting out of other rooms in his possession to various tenants, but not with reference to the time or date of letting those out. Or in other words, no admission is seen made by PW1 with regard to the time of letting out of the rooms. In _R.C.R No.342 of 2014_ _16_ the aforesaid circumstances, it is not safe to conclude that the landlord was in possession of vacant rooms as on date of raising of the claim of eviction by Ext.A1 notice i.e., on 17.03.2012 or as on date of filing of R.C.P.No.6/2012 i.e., on 08.06.2012. The fact that the landlord was in possession of several vacant rooms and had let it out to other parties prior to the raising of the bonafide need as in the case on hand is not a sufficient reason to doubt the veracity of the bonafides. Moreover, the position of law is settled on that aspect by this Court in _**Manu v. Bhanumathy**_ [2004(1) KLT 212], that _“mere fact that one of the tenanted building was sold to the tenant while the bonafide need existed does not mean that there is no bonafides in the need urged for evicting another tenanted premises”._ ## It is further held in the case that _“landlord may also chose a tenant who is paying lesser rent for eviction, for bonafide own occupation”._ Therefore it is the choice of the landlord to select the room in accordance with his convenience and its suitability for the purpose for which it was required. It is pertinent also to note _R.C.R No.342 of 2014 17_ here the thrust of various judicial pronouncement in the realm of the legislation on Rent Control that the tenant is not supposed to dictate terms to the landlord. Moreover, the evidence required to be established by the tenant to get the initial burden cast on him under the first proviso discharged, is something more than the preponderance of probabilities. 23. Under the second proviso, the burden of proof is strictly upon the tenant to establish that he is depending for his livelihood mainly on the income derived from the trade or business carried on in the building taken on rent and also to establish that no other suitable building is available in the locality for carrying on such trade or business. Only when these two conditions are established by the tenant would the Rent Control Court be ousted from exercising its jurisdiction to issue an order of eviction. In order to get the benefit of the proviso cited _supra_ the tenant has to prove that the income from the business carried on by him in the petition scheduled shop room is a substantial one. He should also prove that _18_ _R.C.R No.342 of 2014_ there is no possibility for him to shift his business to some other rooms situated in the neighbourhood locality. 24. In the case on hand, the tenant has not taken a contention in its written statement that he is entitled to get the protection available under the second proviso to Section 11(3). Without raising the contention, he has claimed the protection first in point of time in the proof affidavit filed while tendering evidence. It is established principle of law that evidence adduced without raising a plea is irrelevant and not admissible. Therefore we have no hesitation to hold that the tenant has thoroughly failed in establishing the twin conditions enabling him to claim the protection as contemplated under the second proviso to Section 11(3) of the Act. It is the imperative of the Act that when the stipulations in the first and second provisos are established by the tenant by cogent and satisfactory evidence, the Rent Control Court shall not issue an order of eviction under the ground bonafide need, despite the fact that the same was _R.C.R No.342 of 2014 19_ well established by the landlord. In the case on hand, the landlord has undoubtedly established his claim under Section 11(3) of the Act and the tenant has not succeeded in establishing the various stipulations under the provisos entitling him to claim protection. It is in the said circumstances that the Rent Court court has found the need of the landlord for getting vacant surrender of the petition scheduled shop room for starting an electric cum stationery shop bonafide and granted the order of eviction, which is under challenge herein. Taking into account of the same set of circumstances and appreciating the evidence in the correct perspective the Rent Control Appellate Authority has upheld the findings of the Rent Control Court that the need of the landlord is a genuine and reasonable one. 25. Therefore, we do not see any reason to interfere with the judgment of the Rent Control Appellate Authority, Kalpetta, Wayanad that is assailed in this revision. The Rent Control Court is perfectly justified in passing an _20_ _R.C.R No.342 of 2014_ order of eviction under Section 11(3) of the Act and the Rent Control Appellate Authority has not erred in passing the impugned judgment affirming the order of the Rent Control Court. We have no hesitation to decline the prayer of the tenant to reverse the order of eviction. In the result, the Rent Control Revision is dismissed. The parties shall bear their respective costs. The revision petitioners are directed to surrender vacant possession of the petition scheduled shop rooms within three months from the date of receipt of a copy of this judgment by the Rent Control Court, Sulthanbathery or when it is made available by the landlord, whichever date is earlier. **Sd/K.SURENDRA MOHAN, JUDGE** Sd/ **MARY JOSEPH, JUDGE** vs