Poppy Lonappan v. Alice Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939** **RCRev..No. 302 of 2017 (A) --------------------------** **RCA 34/2015 of RENT CONTROL APPELLATE AUTHORITY/II ADDL.DISTRICT COURT, ERNAKULAM RCP 12/2013 of RENT CONTROL COURT/ADDL.MUNSIFF COURT,KOCHI** **REVISION PETITIONER(S)/APPELLANT/ RESPONDENT : ---------------------------------------------** **POPPY LONAPPAN AGED 45, S/O LONAPPAN, MENACHERY HOUSE, NAYARAMBALAM VILLAGE, KOCHI TALUK DOING BUSINESS AT DOOR NO.II/362 & 363, NEAR PALLIPALAM, CANAL VIEW ROAD, NEAR ST MARY'S CHURCH, NARAKAL-682305.** ## **BY ADV. SRI.JOHN JOSEPH(ROY)** **RESPONDENT(S)/RESPONDENT/ PETITIONER : --------------------------------------** **ALICE VARGHESE AGED 68, W/O VARGHESE, ELAMKUNNAPUZHA HOUSE, NEAR PALLIPALAM, NEAR ST.MARY'S CHURCH, NJARAKAL-682305.** **R1 BY ADVS.SRI.BABU KARUKAPADATH (CAVEATOR)** **SMT.M.A.VAHEEDA BABU SRI.K.M.FAISAL SRI.P.U.VINOD KUMAR SRI.MITHUN BABY JOHN SMT.AMRIN FATHIMA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **OKB** ## K.HARILAL & A.M.BABU, JJ. --------------------------- R.C.R. No.302 of 2017 --------------------------Dated this the 30[th] day of October, 2017 ## O R D E R ## **Harilal, J.** The legality and propriety of the concurrent findings of the courts below under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”) have come up in revision filed by the respondent/tenant. The parties are referred to as in the Rent Control Petition. 2. According to the petitioner, she is an expert and experienced tailor doing tailoring works in her house and she wants to augment her income by conducting the tailoring shop in the petition schedule building. Thus, she bona fide requires the petition schedule building. She has no other building of her own in her possession. The respondent is not doing any business in the petition RCR.302/17 **:2:** schedule building and he is not mainly depending on the income from the tenanted premises. So also several shop rooms are available in the locality to shift his existing business from the petition schedule building. 3. The respondent resisted the claim for eviction under section 11(3) of the Act contending that the bona fide need projected in the petition is a pretext for eviction only. According to him, earlier he was in possession of a 'charth' owned by the petitioner and he had surrendered the said 'charth' in the year 2009 for starting business of the petitioner's husband. So the petitioner could have started the tailoring shop in the said 'charth'. The petitioner is not an expert tailor and the petition schedule building is not suitable for conducting a tailoring shop. It is also contended that the respondent is entitled to get protection under the second proviso to section 11(3) of the Act. 4. On the aforesaid pleadings both parties adduced evidence and the Rent Control Court passed an order RCR.302/17 **:3:** granting eviction under section 11(3). In appeal, the Appellate Authority also confirmed the findings of the Rent Control Court and the judgment passed by the Appellate Authority was challenged before this Court in the earlier revision, RCR.No.190/2017. This Court after considering the legality and propriety of the concurrent findings of the courts below set aside the concurrent findings of the courts below and remitted the case back to the Appellate Authority to consider and pass judgment afresh. This Court has specifically directed to consider whether the claim under section 11(3) is hit by the first proviso to Section 11(3) of the Act. Pursuant to the direction of this Court, the Appellate Authority considered the matter again and passed the impugned order confirming the order of eviction under section 11(3) and setting aside the order of eviction passed by the Rent Control Court under section 11 (4)(iii) of the Act. This revision is filed challenging the concurrent findings under section 11(3) only. 5. Being a revision, it is needless to say, the scope RCR.302/17 **:4:** and extent of enquiry is confined to legality, propriety and regularity of the concurrent findings of the courts below only. This court is not inclined to re-appreciate the entire evidence on record. The respondent has no case that the courts below have omitted to consider any valuable evidence or placed reliance on any irrelevant evidence or wrong proposition of law. It is submitted that the courts below have not properly considered the evidence on record. 6. Coming to the bona fides of the need, to prove the bona fide of the need, the petitioner was examined as PW1 and she has testified the bona fides of her need. The courts below have concurrently placed reliance on the evidence of the petitioner as PW1 and found that nothing was brought out in evidence to doubt the bona fides of the need. Therefore, we do not find any reason to interfere with the concurrent findings of the courts below that the need projected in the petition is bona fide, in the absence of any perversity in the said finding. RCR.302/17 **:5:** 7. According to the petitioner, the respondent is not depending upon the income from the disputed premises and she is conducting another business in the building owned by one Roosevelt Abraham and he was examined as PW2. PW2 has deposed that even though the rent deed was executed in the name of the employee of the respondent, the respondent is in possession of the shop and the respondent has been paying rent for the same to him. Thus, according to PW2, the respondent is conducting the business of value added fish products making unit in his shop room. The case of the petitioner in this respect is supported by Ext.C2 commission report and the Commissioner has stated that when he attempted to inspect that shop room, which is in the possession of the respondent and owned by PW2, the person who was in charge of that shop room pulled down the shutter and he was prevented from inspecting that shop room. On the basis of the above report the courts below have drawn an adverse inference against the respondent. Thus, it has RCR.302/17 **:6:** come out in evidence that the respondent is not mainly depending upon the income from the tenanted premises. 8. So also, no evidence was adduced to show his approximate income from the business and his living expenses. In **Shahul Hameed A. v. P.E.Abdu Razak [2016 (5) KHC 820]** , this Court held that no tenant can claim protection after hiding his income. Evidence must be produced to prove his approximate income from the trade or business and his approximate living expenses. In the absence of any evidence to prove the approximate income from the tenanted premises it can be held that the respondent failed to discharge the burden of proof under the first limb of second proviso. 9. As regards the availability of alternative buildings in the locality, it is needles to say the burden of proof is on the respondent. But the respondent has not taken any steps to prove that no alternative vacant buildings are available in the locality to shift his business. On the other hand, the Commissioner who visited the RCR.302/17 **:7:** locality on the application of the petitioner, has filed Ext.C2 report stating that several alternative vacant buildings are available in the locality. Thus, we find that the courts below are justified in finding that the respondent is not entitled to get protection under the second proviso to section 11(3). We do not find any illegality or impropriety in any of the findings whereby the courts below concurrently granted an order of eviction under section 11(3) of the Act. Consequently this revision fails and it is dismissed accordingly. 10. The learned counsel for the revision petitioner/tenant prayed for granting some time to surrender the vacant possession of the tenanted premises. Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given six months' time from today to vacate the petition schedule building, on the following conditions. (1). The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court RCR.302/17 **:8:** or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule building within six months from today. (2). The revision petitioner/tenant shall deposit entire arrears, if any, within one month from today, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay rent without default. (3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order. All pending interlocutory applications will stand closed. **Sd/-** K.HARILAL, Judge. **Sd/-** A.M.BABU, Judge. okb.