P. Viswanathan v. Biju Thomas

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940** **R.C.R.No. 175 of 2018** **-----------------------** **AGAINST THE JUDGMENT IN RCA 12/2016 of THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), WAYANAD, KALPETTA DATED 27-01-2018** **AGAINST THE ORDER IN RCP 26/2014 of THE RENT CONTROL COURT, SULTHAN BATHERY DATED 08-04-2016** **REVISION PETITIONER/ APPELLANT/ RESPONDENT : --------------------------------------------** **P. VISWANATHAN, PARAYANKUNNATH HOUSE, PUTHANKUNNU P.O., NAMBIKOLLY, WAYANAD DISTRICT - 673 592.** **BY ADVS.SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SMT.BINDU SREEDHAR SMT.MANJU S. PANICKER** **RESPONDENT/ RESPONDENT/ PETITIONER :** **------------------------------------** **BIJU THOMAS, S/O.P.THOMAS, VELLACHALIL (H), MADATHUMPADY, VELLACHALIL, NENMENI P.O., WAYANAD DISTRICT – 673 592. R1 BY ADV. SRI.SHEJI P.ABRAHAM** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RKM** ## **K. HARILAL & ANNIE JOHN,JJ.** ## **= = = = = = = = = = = = = = = = = R.C.R.No.175 of 2018 - - - - - - -- - - - - - - - - - - - - - Dated this the 3[rd] day of August, 2018** ## **O R D E R** ## **K. Harilal, J.** The revision petitioner is the respondent in Rent Control Petition No.26 of 2014 of the Rent Control Court, Sultanbathery as well as the appellant in Rent Control Appeal No.12 of 2016 of the Rent Control Appellate Authority, Wayanad. The aforesaid Rent Control Petition was filed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 _(hereinafter referred to as 'the Act')_ , seeking an order of eviction. The parties are referred to as in the Rent Control Petition. 2. According to the petitioner, he is a civil diploma holder and he is residing in Australia with his wife. Though he was residing in Australia, he is unemployed and his wife alone is employed there as a Nurse. Now, he wants to come back and settle at his native place and to seek avocation for his livelihood. The petition schedule building was leased out to the respondent by his father, when his father was laid up due to R.C.R.No.175 of 2018 2 cancer. His father was conducting hollow bricks factory in the petition schedule building. So, the said entrustment of the building to the respondent was for a specified period. Now, his father is no more. In the year 2013, the respondent entered into a fresh agreement for a lease with the petitioner and the petition schedule building was entrusted with the respondent for a specified period only, with an assurance that he will vacate the tenanted premises, enabling the petitioner to start any income earning activity as and when required. Now, the petitioner is in _bona fide_ need of the petition schedule building to resume the hollow bricks factory, which was being conducted by his father earlier. He has licence and other statutory permission to conduct the aforesaid hollow bricks factory. But, the respondent refused to vacate the tenanted premises contrary to the assurance made to him earlier. The respondent is not mainly depending upon the income from the tenanted premises and several other buildings are available in the locality to shift his business from the tenanted premises. With the aforesaid averments, the petitioner filed the Rent Control Petition, seeking an order of eviction under Section 11(3) of the Act. 3. The respondent resisted the claim for eviction under Section 11(3) of the Act, contending that the need is not a R.C.R.No.175 of 2018 3 _bona fide._ According to him, the petitioner is financially well settled and employed in Australia. So, there is no need to start a new income earning activity in his native place. The respondent is conducting a steel furniture manufacturing unit in the petition schedule building and income from the said business is the sole source of income, for his livelihood. No other vacant buildings are available in the locality to shift his business. With the aforesaid contentions, the respondent prayed for dismissal of the Rent Control Petition. 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court allowed the petition, by granting an order of eviction. Though the respondent has preferred the aforesaid appeal, the Rent Control Appellate Authority affirmed the findings of the Rent Control Court and dismissed the appeal. Thus, the concurrent findings granting an order of eviction under Section 11(3) of the Act, are challenged in this revision petition. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 6. The scope and extent of interference in a revision petition filed under Section 20 of the Act is limited and confined to the examination of legality, propriety and regularity R.C.R.No.175 of 2018 4 of the findings of the courts below only. There is no scope for reappreciation of entire evidence on record, unless it is found that the findings are vitiated by perversity or non-consideration of material evidence on record. In the instant case, the sum and substance of the arguments advanced by the learned counsel for the revision petitioner is that the courts below have failed to appreciate the evidence on record with respect to the _bona fide_ need in its correct perspective. 7. According to the learned counsel for the revision petitioner, the petitioner is working in Australia and there is no chance for starting a business in the native place as he is well employed and living along with his family there. The need projected is irrational and unrealistic, according to the learned counsel for the revision petitioner. But, the courts below failed to evaluate the need in the above point of view and thereby, the findings on the _bona fide_ need is vitiated by perversity. 8. The point to be considered is whether the findings on _bona fides_ of the need is vitiated by perversity. Admittedly, the petitioner is living in Australia along with his wife at the time of filing the Rent Control Petition and according to him, he has no job or any avocation in Australia and he is depending on his wife, who is working there as a Nurse. Therefore, he wants to come R.C.R.No.175 of 2018 5 and settle at his native place and to resume the business of his father. When his father was bed ridden, due to cancer, he leased out the tenanted premises to the respondent for the time being and thereafter, the respondent entered into a lease agreement with the petitioner with an assurance that he will vacate the tenanted premises as and when required by the petitioner. But, when he demanded the vacant possession of the tenanted premises, the respondent refused to vacate the premises contrary to the assurance made earlier. ## 9. In _**Ammu K. and Others v. Nafeesa and Others**_ _**[**_ **2015 (5) KHC 718]** , this Court held that the need put forward by the landlord has to be examined on the presumption that the same is genuine in the absence of any material to the contrary. Going by the impugned judgments under challenge, it could be seen that the petitioner has given evidence as PW1 and he testified as to the _bona fides_ of his need. But, nothing has been brought out in cross examination to discredit or to make his version suspicious in cross examination by the respondent and the courts below reposed confidence in the oral evidence of PW1. We do not find any reason to take a different view. Thus, no other evidence was adduced by the respondent to make the _bona fide_ need unbelievable. Therefore, the presumption would R.C.R.No.175 of 2018 6 come into play in favour of the petitioner. Even if he is employed in Australia, he is not expected to quit the employment abroad to start a new avocation in India. In **2011 (3) KLT 876 (Bhaskaran Nambi v. Suresh Babu)** , this Court held that if a non-resident Indian intending to start a business in his native place with available facility, that has to be considered as his _bona fide_ need. In _**AIR 1999 SC 385(2),**_ the Supreme Court held that a landlord need not lose his existing job nor reach a level of starvation to seek an order of eviction under Section 11(3) of the Act. The learned counsel pointed out that the need must a current one and it cannot be a future need. In _**1972 ILR Kerala 101**_ , this Court held that it is not necessary that there should be a current urgent need. it is enough if it is reasonable and likely to arise in a near future. Even if the landlord is living in affluency, or he is a wealthy man having so many other sources of income, those aspects would not negate the claim for _bona fide_ need. In _**Shamsudheen v. Balan Nair [2014 (2) KLT 978]**_ , this Court held that if the landlord is a man of wealth and assets or affluency, his claim for eviction on the ground of _bona fide_ need cannot be rejected if he is determinant for starting another business. When applying the aforesaid propositions to the instant case, we find that the need projected by the petitioner is R.C.R.No.175 of 2018 7 realistic and genuine, particularly when the need is one to resume the business of his deceased father. Exts.A4 and A5 would show that the proposed business had SSA registration and Certificate of Khadi Board. Thus, we find that the petitioner has succeeded in proving the _bona fides_ of the need. We do not find any kind of perversity in the appreciation of evidence. 10. Coming to the first proviso to Section 11(3) of the Act, the respondent has no case that the petitioner has other buildings of his own in his possession to start the proposed business in the counter statement filed by him. In the absence of pleadings falling under the first proviso, the courts below are justified in finding that the _bona fide_ need of the applicant is not hit by the first proviso. Coming to the 2[nd] proviso, it is needless to say both limbs are conjunctive and burden of proof is on the respondent/ tenant. The only available evidence to discharge the burden of proof is the oral testimony of the respondent alone. No evidence was adduced to prove the income, which is derived from the business in the petition schedule shop room. In _**Shahul**_ _**Hameed v. Abdu Razak [2016 (5) KHC 820]**_ , this Court held that a tenant, who is hiding his income from the court is not entitled to get protection under the 2[nd] proviso. Similarly, no evidence was adduced to prove that no other vacant buildings R.C.R.No.175 of 2018 8 are available in the locality to shift the tenanted premises. From the oral testimony of the respondent, it is well discernible that he has not made enquiry as to the availability of the buildings on rent in the locality. In the absence of evidence from the part of the respondent, the courts below are justified in finding that the respondent is not entitled to get protection under the 2[nd] proviso of the Act. We do not find any reason to interfere with the concurrent findings of the courts below. In the absence of any illegality or impropriety in any of the findings of the courts below, this revision is dismissed accordingly. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge DST/RKM