P. Valsala and Boby v. Sasikumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 10TH DAY OF JULY 2014/19TH ASHADHA, 1936 RCRev..No. 158 of 2014 -------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 21/2012 of II ADDL. RENT CONTROL APPELLATE AUTHORITY,TRIVANDRUM DATED 18-06-2014 AGAINST THE ORDER/JUDGMENT IN RCP 57/2010 OF THE COURT OF RENT CONTROLLER (ADDL.MUNSIFF COURT),TRIVANDRUM DATED 23-03-2012 PETITIONERS/APPELLANTS/COUNTER PETITIONERS 1 & 4: ------------------------------------------------ 1. P.VALSALA, AGED 63 YEARS, W/O LATE K.BABU, TC 30/1600, PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM, RESIDING AT THRIVENI HOUSE, KAVIL LANE, KALLUMOODU, ANAYARA P.O., THIRUVANANTHAPURAM. 2. BOBY, AGED 40 YEARS, S/O. LATE K.BABU, TC. 30/1600, PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM, RESIDING AT ASWATHY BHAVAN, PLANKANTATHIL VELLAMKETTUVILA, PRAVACHAMBALAM, NEMOM, THIRUVANANTHAPURAM. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR ## RESPONDENT/RESPONDENT/PETITIONER: ----------------------------------- SASIKUMAR, AGED 72 YEARS, S/O. KARUNAKARAN, MUKKUNNAVILASOM VEEDU, MANNANTHALA P.O., THIRUVANANTHAPURAM DISTRICT-695015. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & ANIL K.NARENDRAN, JJ. -------------------------------------------------------------------R.C.R.No.158 of 2014** **-------------------------------------------------------------------Dated this the 10[th] day of July, 2014** ## **ORDER** ## **ANIL K.NARENDRAN, J.** The petitioners are counter petitioners 1 and 4 in R.C.P.No.57/2010 on the file of the Rent Control Court, Thiruvananthapuram, and the appellants in R.C.A.No.21/2012 on the file of the Addl. Rent Control Appellate Authority-II, Thiruvananthapuram. 2. The landlord, the respondent herein, filed R.C.P.No.57/2010 against the petitioners herein and two others, who are the legal heirs of the original tenant, seeking an order to evict them from a building bearing No. T.C.30/1600 situated at Pallimukku in Thiruvananthapuram District (hereinafter referred to as ‘the petition schedule premises’), under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’). The petitioners herein, the widow and son of the original tenant (hereinafter referred to as ‘the tenants’), alone R.C.R.No.158 of 2014 2 contested the matter and his two daughters, counter petitioners 2 and 3 in the Rent Control Petition, were set exparte. 3. According to the landlord, the petition schedule premises was rented out to late Babu, the original tenant, on a monthly rent of ₹500/-, which was periodically enhanced up to ₹700/- per month. After the death of the original tenant his widow and children paid rent up to June, 2010 and thereafter the rent is in arrears. The bona fide need pleaded by the landlord is that of starting a Homoeo Clinic for his son in the petition schedule premises and also in the adjacent room. The landlord’s son does not have any vacant building in his possession for conducting the said clinic and he is dependent on the landlord for the purpose of such accommodation. The landlord has no other vacant building in his possession. The other room adjacent to the petition schedule premises was rented out to another tenant and eviction proceedings in respect of the said room was also initiated, as he needs both R.C.R.No.158 of 2014 3 rooms for starting a Homoeo Clinic for his son. 4. According to the tenants, the petition schedule premises was rented out to the original tenant on 4.11.1972 for running a studio. After the death of the original tenant they are conducting the studio. After June, 2010 the landlord never collected rent. Hence the tenants sent monthly rent by money order. But, the same was returned by the postal authorities as the landlord refused to accept the same. The tenants also denied absolute title of the landlord over the petition schedule premises. They further contended that, there is no bona fide need as pleaded in the rent control petition. The landlord’s son is presently conducting a Homoeo Clinic at Perunthnni, opposite to Kamala Kalyanmandapam, under the name AIHMS Homoeo Clinic, which is about 5 kms. away from the petition schedule premises. If the landlord wants to provide accommodation to his son, as alleged, he owns another room adjacent to the petition schedule premises, which is lying vacant. Therefore, the Rent Control Petition was filed with R.C.R.No.158 of 2014 4 ulterior motives to evict the tenants. It was also contended that, the tenants and their family are mainly depending upon the income derived from the studio for their livelihood and they have no other source of income. There is no other suitable building or room available in the locality for shifting the studio. Therefore, the tenants prayed for dismissal of the Rent Control Petition. 5. On the side of the landlord he was examined as PW.1 and his son was examined as PW.2. On the side of the tenants, the 2[nd] petitioner herein, was examined as CPW.1 and Exts.B1 to B3 were marked on their side. 6. The Rent Control Court considered the oral and documentary evidence on record and by order dated 23.3.2012 allowed the petition under Section 11(3) of the Act, on the ground of bona fide need to start Homoeo Clinic for the dependent son of the landlord. The Rent Control Court further held that, the tenants are not entitled to the protection under the second Proviso to Section 11(3) of the Act, as they failed to R.C.R.No.158 of 2014 5 prove that the income derived from the business conducted in the petition schedule premises is their main livelihood and that, no other suitable buildings are available in the locality for shifting the studio. 7. Challenging the order of the Rent Control Court, the tenants filed R.C.A.No.21/2012 before the Addl. Rent Control Appellate Authority-II, Thiruvananthapuram. The Appellate Authority concurred with the findings of the Rent Control Court and dismissed the appeal by judgment dated 18.6.2014. Hence the tenants are before us in this Rent Control Revision, filed under Section 20 of the Act. 8. Heard arguments of the learned counsel for the petitioners-tenants. 9. The learned counsel contended that the findings of the Rent Control Court on the bona fide need put forward by the landlord and that the tenants are not entitled to the protection under the second Proviso to Section 11(3) of the Act are per se arbitrary and patently illegal. Hence, the Appellate R.C.R.No.158 of 2014 6 Authority went wrong in concurring with such findings of the Rent Control Court. 10. We have considered the submissions made at the Bar and perused the order of the Rent Control Court and the judgment of the Appellate Authority. 11. On a perusal of the judgment of the Appellate Authority we find that, the contention regarding denial of absolute title of the landlord was not strongly pressed into service while arguing the appeal before the Appellate Authority. Therefore, the only question we have to consider is whether there is any illegality, irregularity or impropriety in the order of the Rent Control Court and in judgment of the Appellate Authority in ordering eviction of the tenants on the ground of bona fide need of the landlord, after holding that the tenants are not entitled to the protection under the second Proviso to Section 11(3) of the Act. 12. The bona fide need put forward by the landlord under Section 11(3) of the Act is that of starting a Homoeo R.C.R.No.158 of 2014 7 Clinic in the petition schedule premises and also in the adjacent room for his son. It has come out in evidence that, the landlord has already obtained possession of the adjacent room, after proceeding against the tenant of that room. The landlord, who was examined as PW.1, gave evidence in tune with the pleadings in the Rent Control Petition. His son, who was examined as PW.2, deposed that he is conducting a Homoeo Clinic at Perunthanni on partnership basis. In order to start Homoeo Clinic in the petition schedule premises, possession of the adjacent room was also obtained from the tenant of that room. The tenant (4[th] counter petitioner), who was examined as CPW.1, deposed that one Sakunthala was the tenant of the adjacent room and he heard that she was evicted. On analysing the evidence of CPW.1 the Rent Control Court found that, the tenants are not disputing the fact that PW.2 is a Homoeopathic Doctor and that in the Homoeo Clinic conducted at Perunthanni PW.2 is only one among the partners. Therefore, the evidence on record would prove that PW.2, who is a R.C.R.No.158 of 2014 8 Homoeopathic Doctor, is not having an independent clinic and that the landlord has already obtained possession of the adjacent room in order to start an independent Homoeo Clinic for PW.2 in the petition schedule premises and also in that adjacent room. 13. Therefore, as rightly held by the Rent Control Court as well as the Appellate Authority, the landlord has succeeded in establishing a bona fide need to evict the tenants from the petition schedule promises, under Section 11(3) of the Act. There is nothing to doubt the bonafides of the landlord in evicting the tenants from the petition schedule premises, for starting an independent Homoeo Clinic for his dependent son. Moreover, the availability of the adjacent room will not disentitle the landlord from seeking eviction of the petition schedule premises as it is specifically pleaded in the Rent Control Petition that, both rooms are required for conducting the Homoeo Clinic. 14. In **S.J.Ebenezer v. Velayudhan and others [1998** R.C.R.No.158 of 2014 9 **(1) SCC 633]** , the Apex Court held that, “while considering the question of bona fides, what is necessary to bear in mind is that a mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon the landlord to establish that he genuinely requires the accommodation for the purpose of starting or continuing his own business (Vide Mattulal v. Radhe Lal, 1974 (2) SCC 365).” 15. In **Deep Chandra Juneja v. Lajwanti Kathuria (dead) through Lrs. [2008 (8) SCC 497]** the Apex Court, relying on its earlier judgment in **Prativa Devi v. T.V. Krishnan [1996 (5) SCC 353]** , reiterated that, “the landlord is the best judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live.” In **Sheela v. KAMCO Employees Union [2010 (2) KLT 435]** , this Court held that, “it is not for the tenant to dictate to the landlord how to satisfy his need. When the landlord has a sufficiently spacious room owned by R.C.R.No.158 of 2014 10 it, there is nothing wrong in the landlord wanting possession of the said room for its need. The need cannot be rejected on the ground that the landlord would be able to satisfy its need by utilizing the veranda.” 16. In **Mathew v. Aruna [2014 (2) KLT 876]** this Court held that, “any need or requirement, which is rational and reasonable can be projected under Section 11(3) of the Act. If the Court is satisfied that the need projected is for a lawful purpose and that it is not a mere wish or an irrational desire or a fancy wish, the need can be accepted by the Court, if the Court finds determination in the need projected by the landlord for his own purposes or for the purposes of his dependent.” This Court further held that, “just because a Doctor has a consultation room attached to his house, his right or determination to start a clinic or hospital of his own at some other place cannot be disputed or questioned by anybody.” 17. In the case on hand, the evidence of PWs.1 and 2 clearly established that the landlord genuinely requires the R.C.R.No.158 of 2014 11 petition schedule premises for the bona fide need of starting an independent Homoeo Clinic for PW2 in the said premises and also in the adjacent room. It is apparent from the evidence on record that the bona fide need projected by the landlord is not a mere wish or an irrational desire or a fancy wish and there is nothing to substantiate the contention of the tenants that the attempt of the landlord is with ulterior motive to somehow evict them. On the basis of evidence on record, the Rent Control Court and the Appellate Authority concluded that the landlord has succeeded in making out a case for ordering eviction of the tenants, under Section 11(3) of the Act, as the landlord bona fide require the petition schedule premises for the purpose of starting an independent Homoeo Clinic for his dependent son. Such a finding of the authorities below cannot be said to be erroneous or perverse, warranting any interference of this Court in exercise of its revisional jurisdiction under Section 20 of the Act. We find absolutely no illegality, irregularity or impropriety in the finding to that R.C.R.No.158 of 2014 12 effect in the impugned order and judgment. 18. Now we shall consider whether the authorities below were justified in concluding that the tenants are not entitled to the protection under the first and second limbs of the second Proviso to Section 11(3) of the Act. It was contended that the tenants and their family are mainly depending upon the income from the studio for their livelihood and they have no other source of income. It was further contended that there is no other suitable building or room available in the locality for shifting the studio. Though CPW.1 stated that the income from the business conducted in the petition schedule premises is the main livelihood of the family, he has admitted that there is no document to show the income derived from his business. Though CPW.1 asserted that there is no suitable building available in the locality to shift the business, there is no independent evidence in this regard. 19. In **Thomas v. Joseph [1986 KLT 392]** and **Muhammed v. Pathukutty Umma [1992 (2) KLT 736]** this R.C.R.No.158 of 2014 13 Court held that, “notwithstanding proof of bona fide need, the landlords are not entitled to evict the tenants until the two ingredients of the second proviso to S.11(3) are clearly found against the tenants. Tenant has to prove that he has no other source of income and that he is solely depending on the income derived from the business carried on in the building for his livelihood. It is not enough that the tenant proves that he is depending upon the income derived from the business conducted in the building, he has to further prove that there is no other suitable building available in the locality for him to carry on such trade or business.” The principle laid down in the above judgments was followed by this Court in **Satheesan v. Abdul Rahiman [2003 (3) KLT 1119]** . 20. The Apex Court in **Kunhamman v. Akkali Purushothaman & Others [2007(11)SCC181]** held that, “to invoke benefit of the second limb of the proviso, tenant will have to prove by necessary evidence that no other suitable buildings are available in the locality for him to shift the R.C.R.No.158 of 2014 14 business.” Following the above judgment of the Apex Court, it was held by this Court in **Thanuja Sunderdas v. Sisirkumar Raj [2008 (4) KLT 248]** that, “to invoke benefit of the second limb of proviso, the tenant will have to prove that there is no other suitable building available in the locality for the tenant to carry on the trade or business he is engaged in. Unless the tenant effectively proves that there is no other suitable building in the locality, the onus of proof will not shift to the landlord.” 21. In the case on hand, the tenants failed to prove that, the income derived from the business conducted in the petition schedule premises is their sole livelihood and that there is no other suitable building available in the locality for them to carry on such business. Thus, we are of the view that the tenants have not, by any effective means, adduced evidence in support of their plea for protection under the second Proviso to Section 11(3) of the Act. Therefore, the finding of the Rent Control Court and the Appellate Authority that the tenants are R.C.R.No.158 of 2014 15 not entitled to the protection under the second Proviso to Section 11(3) cannot be said to be erroneous or perverse, warranting any interference in exercise of the revisional jurisdiction under Section 20 of the Act. We find absolutely no illegality, irregularity or impropriety in the finding to that effect in the impugned order and judgment. Therefore, the Rent Control Petition is only to be dismissed. 22. The learned counsel for the petitioners-tenants submitted that the tenants may be granted a reasonable time to vacate the petition schedule premises. Considering the facts and circumstances of the case and taking into consideration the fact that the tenants are conducting studio in the petition schedule premises for the last several years, we are inclined to grant time till 31[st] January, 2015 to the tenants to vacate the petition schedule premises. 23. Accordingly, the Rent Control Revision is dismissed. However, the petitioners-tenants are granted time till 31[st] January, 2015 to vacate the petition schedule premises, on R.C.R.No.158 of 2014 16 condition that they shall file affidavits before the Rent Control Court on or before 15[th] August, 2014 unconditionally undertaking to vacate the petition schedule premises on or before 31[st] January, 2015. The petitioners-tenants shall also deposit the entire arrears of rent as on the date of deposit, before the Rent Control Court on or before 5[th] August, 2014, and shall continue to pay the monthly rent for the occupation and use of the petition schedule premises for the remaining period till 31[st] January, 2015, on the 5[th] day of the succeeding months. If the tenants fail to comply with any of the conditions mentioned above, the landlord will be entitled to proceed with the execution of the order of eviction, forthwith. If the tenants comply with the above conditions, the execution court shall keep in abeyance the execution of the order of eviction till 31[st] January, 2015. ## **K.T.SANKARAN, JUDGE** skj **ANILK.NARENDRAN, JUDGE**