Poovadan Smitha v. Lalitha

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 29TH DAY OF JUNE 2018 / 8TH ASHADHA, 1940** **RCRev..No. 23 of 2016** **AGAINST THE ORDER/JUDGMENT IN RCA 2/2009 of ADDL.DC - II, THALASSERY DATED 13-07-2015 AGAINST THE ORDER/JUDGMENT IN RCP 36/2006 of MUNSIFF COURT, THALASSERY DATED 26-07-2008** **REVISION PETITIONER/APPELLANT/PETITIONER** **POOVADAN SMITHA D/O.CHANDUKUTTY THIRUVANGAD AMSOM, DESOM, THALASSERY TALUL** **BY ADVS.SRI.R.PARTHASARATHY SMT.SEEMA** ## **RESPONDENT:** **LALITHA,W/O. LATE M.K. PAVITHRAN NAMATH HOUSE, HOUSE NO.17/471, NEAR SPORTING YOUTH LIBRARY, THIRUVANGAD, THALASSERY** **R1 BY ADV. SRI.K.V.PAVITHRAN R1 BY ADV. SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL R1 BY ADV. SRI.P.SAJU R1 BY ADV. SRI.NIAS MOOPAN R1 BY ADV. SRI.E.M.UNNIKRISHNAN (MANJERI)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **SMM** ## **K.HARILAL & SHIRCY.V, JJ** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R No.23 of 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2018 ## **O R D E R** ## Harilal,J The revision petitioner is the landlady who suffered an order dismissing the Rent Control Petition filed by her against the respondent under Section 11(3) of the Kerala Building (Lease and Rent Control) Act ('the Act' for short). Though, she had preferred an appeal before the Rent Control Appellate Authority challenging the said order, the Appellate Authority also dismissed the appeal confirming the findings whereby the Rent Control Court dismissed the Rent Control Petition. Thus, this revision petition has been filed challenging the concurrent findings whereby the Rent Control Court as well as the Appellate Authority rejected the claim for eviction under Section 11(3) of the Act. R.C.R No.23 of 2016 2 2. According to the petitioner, she is in bonafide need of the petition schedule building for starting a tailoring shop for to eke out livelihood for her family. She has no other buildings of her own to start the aforesaid tailoring shop. But several other vacant buildings are available in the locality to shift the business of the respondent from the petition schedule building. With the aforesaid averments she prayed for an order of eviction under Section 11(3) of the Act. 3. The Respondent resisted the said application contending that the need projected in the petition is a pretext for eviction only. According to the respondent, the husband of the petitioner is conducting a hotel very near to the petition schedule shop room and he is earning sufficient income from the said hotel business for the livelihood of the family. Thus, there is no necessity to start a new business in the petition schedule building. The petition schedule building is not a shop building and it is residential building and she is residing in the said building R.C.R No.23 of 2016 3 with her family. She is entitled to get a fixity of tenure under the Land Reforms Act. The petitioner and her husband are in possession of other vacant building in the locality. The petitioner demanded enhanced rent to extend the tenure and the respondent denied the same and denial of the enhanced rent prompted her to file a petition seeking eviction. 4. On the rival pleadings both the parties have adduced evidence. The Rent Control Court, after analysing the evidence on record, rejected the claim of the respondent that she is a 'kudikidappukaran' who is entitled to get fixity of tenure under the Land Reforms Act; but dismissed the petition on a finding that the need projected in the petition is not bonafide. In the appeal the Appellate Authority also concurred with the findings of the Rent Control Court and dismissed the appeal. 5. Heard the learned counsel for the revision petitioner. 6. The learned counsel for the revision petitioner R.C.R No.23 of 2016 4 mainly focused his arguments on three points. According to him, the courts below concurrently rejected the claim for eviction under Section 11(3) mainly on the finding that the husband of the petitioner has another building near the petition schedule building and he is running a hotel business and earning sufficient income from the said hotel business. Therefore, the petitioner could have started the proposed business in the building owned by the husband. The courts below absolutely went wrong by finding that the bonafide need projected in the petition is hit by the first proviso to Section 11(3) as husband of the petitioner has another building near to the petition schedule building. Secondly, it is contended that the courts below went wrong by finding that the petitioner is not an expert in carrying on tailoring shop and thereby it cannot be presumed that the bonafide need projected in the petition is a genuine one. According to the learned counsel, the said finding is against the law settled by this court that expertise or previous experience is not required for R.C.R No.23 of 2016 5 starting a new business under Section 11(3). Thirdly, it is contended that after arriving at a finding that the original respondent is not a 'kudikidappukaran' who is entitled to get fixity of tenure, turned round and doubted the nature of the petition schedule building whether it is a shop room or a residential building without any basis. 7. In view of the arguments at the bar, the point to be considered is whether there is any illegality or impropriety in the aforesaid findings whereby the courts below concurrently rejected the claim for eviction under Section 11(3) of the Building Lease and Rent Control Act. 8. We have meticulously analysed the findings whereby the courts below concurrently rejected the claim for eviction under Section 11(3) of the Act. As rightly pointed out by the learned counsel for the Revision Petitioner, we also found that the main reason for rejecting the claim under Section 11(3) is that the bonafide need is hit by the first proviso to Section 11(3). The courts below specifically observed that it has come R.C.R No.23 of 2016 6 out in evidence that the husband of the petitioner is having another building wherein he has been conducting a hotel business. The appellate authority observed that the wife can be a dependant of the husband also. Therefore, the ownership and possession of another building by the husband would negate the claim of the wife under Section 11(3) of the Act. In the above context, the statutory mandate under the first proviso to Section 11(3) of the Act assumes relevancy and significance. The first proviso 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 where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so.” 9. On an analysis of the aforesaid Section, it is pertinent to note that the statutory mandate is that the Rent Control Court shall not give any direction to put the landlord in possession of the tenanted premises if the landlord has another building of his own in his possession in the same city, town or village. The expression R.C.R No.23 of 2016 7 “landlord” has another building of “his own” means and intends that the available alternative building must be that of the landlord himself and ownership and possession of the alternative vacant building by any other member of his family would not negate the landlord's claim for eviction under Section 11(3) of the Act. Thus, the findings of the court below are made contrary to the statutory mandate under the first proviso to Section 11(3) of the Act. Therefore, the said finding is set aside. We find that the claim for eviction of the petitioner is not hit by the first proviso to Section 11(3) of the Act. 10. Secondly, as rightly pointed by the counsel for the revision petitioner, the Rent Control Court has framed a preliminary issue whether the original tenant is a 'kudiyidappukaran who is entitled to get fixity of tenure under the Kerala Land Reforms Act and found that he is not a 'kudikidappukaran' and rejected the said claim. If the said claim was rejected and no appeal or cross appeal has been filed by the respondent challenging the rejection R.C.R No.23 of 2016 8 of kudikidappukaran's right before the appellate authority. There was no circumstance to consider or doubt the purpose for which the tenanted premises was being used by the Respondent. 11. The nature of the building, whether it is a residential building or shop room is insignificant and inconsequential as it is for the Landlord to choose his place of business. It is the privilege of the Landlord to choose nature of business and place of business. It is trite law settled by a number of decisions of this Court that it is for the landlord to chose a place of business and nature of building and the tenant has no say in this respect. See _**Jerry Joseph v. Selvaraj**_ **[2002(2)KLT 129]** . That apart, Ext.A1 sale deed would show that the building in question is a shop room and not a residential building. But the courts below have unnecessarily embarked upon an enquiry as to the nature of the building. Even if it is a residential building it is for the Revision Petitioner to decide the convenience and R.C.R No.23 of 2016 9 ## suitability of that building. 12. Similarly, we further find that the courts below concurrently found that the petitioner had no expertise in cutting of dress materials and she had experience in tailoring only. Therefore, she cannot conduct a tailoring shop. This Court has considered the necessity of expertise and previous experience for starting a business under Section 11(3) and held that previous experience or expertise is not a relevant matter to be considered while considering the bonafides of a need projected under Section 11(3) of the Act. _**(See. Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and another [1999 (4) SCC 1] and Kurian.K.Kuriakose v. Usha Cherian [2008 (1) KLT 739].**_ In _**[2008 (1) KLT 739]**_ this Court held that “Previous experience to conduct business is not necessary as a pre-condition for seeking eviction on the ground of bonafide need and lack of experience has no consequence at all while testing the bonafide”. In the light of the aforesaid decisions, we find R.C.R No.23 of 2016 10 that the aforesaid findings of the courts below are unsustainable and liable to be set aside and we do so. In the above analysis, we find that the courts below concurrently rejected the claim for eviction on a perverse appreciation of evidence and erroneous understanding of law. It is needless to say that the concurrent findings of the courts below are illegal and perverse. In the above view, the impugned judgment and decree passed thereunder by the court below will stand set aside and R.C.P. No.36/2006 of the Rent Control Court, Thalassery will stand allowed. The Respondent/Tenant is directed to put the petitioner/Landlord in vacant possession of the petition schedule building within two months from today. Sd/- ## **K.HARILAL JUDGE** Sd/- **SHIRCY V JUDGE** smm