## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V**
**THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938**
**RCRev..No. 150 of 2015 (E)**
**-------------------------AGAINST THE JUDGMENT IN RCA.49/2009 of I ADDL.DISTRICT COURT, ERNAKULAM DATED 08-04-2015**
**AGAINST THE JUDGMENT IN RCP.138/2007 of III ADDL.MUNSIFF'S & RENT CONTROL COURT, ERNAKULAM DATED 30-07-2009**
## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS (TENANTS):**
**--------------------------------------------**
**P.K.RAMA IYER (DIED)**
**1. KAMALA RAMA IYER, W/O.LATE P.K.RAMA IYER, MARIAKUTTY BUILDING,BUILDING NO.39/461, MAHALAKSHMI COMMERCIAL INSTITUTE, MAHAKAVI G. ROAD, KOCHI-682011.**
**2. KRISHNAN P.R., S/O.LATE P.K.RAMA IYER, MARIAKUTTY BUILDING, BUILDING NO.39/461, MAHALAKSHMI COMMERCIAL INSTITUTE, MAHAKAVI G. ROAD, KOCHI-682011.**
**3. PREMA GOPAL KRISHNAN, D/O.P.K.RAMA IYER, MARIAKUTTY BUILDING, BUILDING NO.39/461, MAHALAKSHMI COMMERCIAL INSTITUTE, MAHAKAVI G. ROAD, KOCHI-682011.**
**BY ADVS.SRI.T.K.RADHAKRISHNAN SRI.K.J.GLADIS**
**RESPONDENT/PETITIONER(LANDLORD): ----------------------------**
**MR.C.P.STANLY, AGED 62, S/O.LATE PAUL, CHITEZHATH HOUSE MONASTRY ROAD, COCHIN-682011.**
**BY ADV. SRI.JOHNSON MANAYANI (CAVEATOR)**
**THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## _**OKB**_
K.HARILAL & RAJA VIJAYARAGHAVAN.V., JJ. --------------------------R.C.R. No.150 of 2015
--------------------------Dated this the 2[nd] day of March, 2017
## O R D E R
## Harilal, J.
The revision petitioner is the respondent in R.C.P.No.138/2007 on the files of the Rent Control Court, Ernakulam as well as the appellant in R.C.A.No.49/2009 on the files of the District Court, Ernakulam. The aforesaid Petition was filed against the respondent under Section 5 and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, 'the Act'). The parties are referred to as in the Rent Control Petition.
2. According to the petitioner, he is the owner of the plaint schedule building and the same was rented out to the respondent for residential purpose for a monthly rent of `1100/-. Now the petitioner bona fide needs the petition schedule building for the residence of his sons. His sons are married. His elder son is having a son and younger son is having two sons. All of them are residing together with the petitioner in the
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same house. His sons are depending on him for the building for their residential purpose as the present house is inadequate for their residence. Hence the petitioner made a request to the respondent to surrender the plaint schedule building for his sons' residence. But the respondent refused to surrender the petition schedule building. Similarly, he is entitled to get fair rent to the tune of `5,500/- per month for the last three years. The monthly rent of `1,100/- is insufficient and inadequate. Thus, the petitioner prayed for fixation of fair rent also.
3. The respondent resisted the said contention. According to the respondent, the bona fide need highlighted in the petition is a ruse for eviction only. The petitioner is having another building so as to accommodate his sons and family and those buildings are sufficient for their residence. The petition is filed to let out the building for a higher rent after getting vacant possession. It is also contended that the petitioner is not entitled to get fair rent fixed at the rate of `5,500/- as claimed by the petitioner.
4. On the aforesaid pleadings, both parties adduced
evidence consists of the oral testimony of P.W. 1 and R.W.1 and
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Exts.A1 to A3 and B1 to B7. After evaluating the evidence on record, the courts below concurrently found that the need highlighted in the petition is a bona fide one and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. Thus, the legality, propriety and regularity of the concurrent findings of the courts below are challenged in this Rent Control Revision.
5. Heard the learned counsel for the revision petitioners.
6. The sum and substance of the arguments advanced by the learned counsel for the revision petitioners is that the courts below miserably failed to evaluate the evidence adduced by the respondent under the first proviso to Section 11(3) of the Act in its correct perspective. It is further submitted that it has come out in evidence that the respondent has another building, which consists of ten rooms. Therefore, the revision petitioners have succeeded in establishing that the claim of the respondent under Section 11(3) of the Act will be hit by the first proviso to Section 11(3). It is also contended that the revision petitioners have succeeded in proving that the income derived from the Typewriting Institute, which is being conducted in the petition
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schedule building, is the main source of income for the livelihood of the revision petitioner's family. Thus, the revision petitioners are entitled to get protection under the first limb of the first proviso also.
7. Per contra, the learned counsel appearing for the respondent advanced arguments to justify the concurrent findings of the courts below.
8. The scope and interference of this Court under Section 20 of the Act are confined to examination of illegality, irregularity and impropriety only, particularly when the concurrent findings of the courts below are challenged in this Revision. So also, Revisional Court is not allowed to reappreciate or reappraise the evidence from which the concurrent findings have arrived at.
9. It is the case of the petitioner that his sons, by name Pink and Red, are married and they are having children and now they are residing with their family along with the petitioner and the present house, in which all of them are residing, is not sufficient or adequate. In order to substantiate the bona fides of the need, the petitioner and his elder son were examined as
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P.Ws.1 and 2. They have deposed in terms with the averments in the petition and cross examined on the bona fides of the need projected in their pleadings. The courts below concurrently found that nothing brought out to discredit their evidence. It is pertinent to note that in the objections the respondent has not disputed the claim of the petitioner that now his sons and families are residing along with the petitioner. We do not find any reason to interfere with the findings on the need of the petitioner concurrently found bona fide by the courts below.
10. Coming to the first proviso, it is true that it has brought out in evidence that the petitioner has another building which consists of 10 rooms. But, further it has come out in evidence that those rooms are a line of small rooms only and stand rented out to different tenants. It is pertinent to note that the respondent has no case that those rooms are vacant rooms. It is trite law that mere possession of another building is not sufficient to attract the 1[st] limb of the first proviso to Section 11(3) of the Act, unless it is proved that those rooms are vacant and suitable for the need projected in the petition. That apart, in **Venugopalan Nair v. Mohamedkunhi** [2010 (1) KLT 971],
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## this Court held as follows:-
**“** The Rent Control Court is not expected to sit in judgment over the wisdom of landlord to identify one among his various tenanted rooms for conducting the proposed business. The rule or power of pick and choose, conceded to the landlord when a landlord has several tenants, has received recognition in rent control jurisprudence. Unless it can be said that it is with an oblique motive that landlord has chosen the tenant who is sought to be evicted for action in preference to the other tenants it is not for the authorities under statute to intervene. Nothing has been brought out in this case which will show that the power of pick and choose has been exercised by the landlord in this case with _mala fides_ .”
11. Indisputably, line of small rooms are not suitable for residential purpose of a family, and there is no evidence to prove otherwise. P.W.2 has given evidence to prove the insufficiency of the line of rooms. The respondent has no case that the petitioner is in possession of any other vacant building suitable for residential purpose. Therefore, we find no reason to interfere with the findings on the evidence adduced under the first proviso. Coming to the first limb of second proviso, the respondent himself admitted that he is working as an agent of ICICI Prudential. Thus obviously, the income derived from the Typewriting Institute is not the only source of income for the
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livelihood of the respondent and his family. In view of the admission from his part, he could have produced a documentary evidence to prove the income which he derived from the Typewriting Institute and the ICICI Prudential. But, absolutely, no evidence has been produced to show the income from the Typewriting Institute as well as from the ICICI Prudential as an agent. Needless to say that he will be entitled to get the protection of the proviso only if it is proved that the income which he derived from the Typewriting Institute is more than the income from the ICICI Prudential. In the absence of such evidence, an adverse inference under Section 114(g) of the Evidence Act also can be drawn against the respondent. Though he has produced Exts.B3 and B6 series of documents, the income which he is getting from the Typewriting Institute cannot be assumed from the said documents as it shows that he is conducting the Typewriting Institute only and he is paying the professional tax for the same. The courts below are justified in discarding Ext.B5 series of certificates as no reliance can be placed on the certificate issued by the Tax consultant of an assessee.
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12. Coming to the second proviso to Section 11(3) of the Act, the burden is on the respondent to prove that no other buildings are available in the locality to shift the business conducted in the petition schedule building. Apart from the mere assertion of RW1, that no other buildings are available in the locality, there is no evidence to show that no other pleadings are available in the locality, for shifting the Typewriting Institute. So also, RW1 himself admitted that he has not enquired about the availability of such alternative building, for shifting the Typewriting Institute. Thus, we find that the courts below have appreciated the evidence under the proviso to Section 11(3) of the Act in its correct perspective and we hold that there is no illegality or impropriety in denying the protection under the second proviso to Section 11(3).
13. To sum up, this Court is not inclined to interfere with the concurrent findings of the court below invoking the jurisdiction and power under Section 20 of the Act. Hence, the judgments under challenge will stand confirmed and this Revision is dismissed.
14. At last, the learned counsel for the petitioner sought
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for some time to surrender the petition schedule building. The learned counsel for the respondent opposed the said request. But, this Court is of the view that a reasonable time can be given to the petitioner to surrender the petition schedule building. The petitioner shall surrender the petition schedule shop room within six months provided that he could apply the conditions given below within the specified time.
- i) The petitioner shall file an affidavit before the Rent Controller expressing his readiness and willingness to surrender the petition schedule building within a period of six months from today and the said affidavit must be filed within one week from the date of receipt of a copy of this order.
- ii) In the event of failure, the time granted to vacate the petition schedule building would stand automatically vacated and the respondent will be at liberty to proceed with the execution.
**Sd/-**
K.HARILAL, Judge.
**Sd/-**
RAJA VIJAYARAGHAVAN.V. Judge.
okb/ps
