P.T. Thomas v. P.P. Sukumaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940** **RCRev..No. 364 of 2018** **AGAINST THE JUDGMENT IN RCA 51/2016 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY-III, KOTTAYAM DATED 12-04-2018** **AGAINST THE ORDER IN RCP 38/2014 OF THE ADDITIONAL RENT CONTROL COURT,KOTTAYAM DATED 31-08-2016** ## **REVISION PETITIONER:** **P.T. THOMAS AGED 50 YEARS S/O. THOMAS, PERAKATHUSSERIYIL HOUSE, NATTAKOM VILLAGE, CHINGAVANAM KARA, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686 531.** **BY ADVS. SRI.ABRAHAM GEORGE JACOB SRI.JIBU P THOMAS** ## **RESPONDENT:** **P.P. SUKUMARAN SON OF AYAPPAN, AYAPPABHAVANAM, CHINGAVANAM KARA, NATTAKOM VILLAGE, KOTTAYAM TALUK, KOTTAKAM DISTRICT, PIN - 686 531.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 364 of 2018** 2 ## **ORDER** ## **Harilal, J.** **1. The revision petitioner is the tenant against whom an order of eviction has been passed by the Rent Control Court, Kottayam under section 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** _**bona fide**_ **needs the petition schedule building for starting a cool bar business for his elder son. His elder son is not having any job or avocation of his own. He is dependent on the petitioner for the tenanted premises for starting the said cool bar. No other suitable buildings are in his possession for starting the said business. But, however, other buildings are available in the locality to shift the business of the respondent from the** **RCRev..No. 364 of 2018** 3 ## **tenanted premises.** **3. The tenant resisted the claim for eviction, under section 11(3) of the Act and contended that the need projected in the petition is not** _**bona fide**_ **and it is a pretext for eviction only. According to him he is mainly depending on the income derived from the business in the petition schedule building and no other buildings are available in the locality. The petitioner is conducting a hardware shop and his son is assisting him in the conduct of the said business. Therefore, there is no need to start a new business for his son.** **4. On the aforesaid rival pleadings, the parties went to trial and after trial, the courts below concurrently found that the need projected in the petition is** _**bona fide**_ **and the tenant is not entitled to get protection under the 2[nd] proviso to section 11(3) of the Act. The legality and propriety of the aforesaid findings are assailed** **RCRev..No. 364 of 2018** 4 **in this revision petition.** **5. Heard the learned counsel for the respondent/tenant.** **6. At the outset, this court must remind ourselves that the scope and extent of interference under section 20 of the Act are very limited and confined to the legality, propriety and regularity of the findings of the courts below. This court cannot re-appreciate the entire evidence and arrive at a different finding, unless the findings of the courts below are perverse or vitiated by non-consideration of material evidence.** **7. The sum and substance of the argument advanced by the learned counsel for the tenant is that the findings on the 1[st] proviso to section 11(3) of the Act are vitiated by perversity. According to him, the landlord has not given special reasons for not occupying the buildings, which are owned and possessed by him. No other** **RCRev..No. 364 of 2018** 5 ## **contention has been raised in this revision.** **8. We have meticulously gone through the findings, under the 1[st] proviso to section 11(3) of the Act, in both the order passed by the Rent Control Court and the judgment passed by the Appellate Authority. According to the tenant, the landlord has other buildings in his possession. The landlord himself has admitted the ownership and possession of three other buildings. But, according to him, those buildings are not suitable or convenient for conducting the proposed cool bar business. In order to substantiate the special reasons, the landlord was examined as PW1 and his son, for whose requirement the shop room was sought to be evicted, was examined in evidence. They have testified as to the special reason for not occupying the other buildings pointed out by the respondent.** **9. After evaluating the oral testimony of Pws1** **RCRev..No. 364 of 2018** 6 **and 2, the courts below concurrently found that nothing has been brought out to discredit the evidence of PW1 or PW2, as regards the special reason for not occupying the building, owned by the petitioner. That apart,the landlord has taken out a commission to ascertain the alleged vacant possession of the disputed other buildings, which are owned by him. In Ext.C1 report, the Commissioner has specifically reported that he has inspected three buildings owned by the landlord. But, during the inspection, one building was found to occupied for conducting footware business, the second building was found occupied for conducting a hardware workshop and the third building was found having no road access. Thus, it has come out in evidence that the landlord was not in possession of any vacant room suitable for conducting the proposed cool bar business. In the absence of any other shop room, which is vacant, suitable and convenient** **RCRev..No. 364 of 2018** 7 **for conducting the proposed cool bar business, it cannot be held that the claim for eviction is barred by the 1[st] proviso to section 11(3) of the Act.** **10. The learned counsel for the tenant vehemently contended that the landlord failed to plead and prove special reasons, for not occupying the other buildings for the proposed business and thereby the landlord has not discharged his burden of proof.** **11. It is not disputed that the initial burden of proof under the 1[st] proviso is on the landlord. The question whether the landlord has to plead special reasons, for not occupying the building in the rent control petition, was considered by** **the decisions of this court in** _**v. Kunju**_ _**Fathima [2014 (3) KLT 563].**_ **In the said decision, this court held that the landlord need not plead special reasons, for not occupying the** **RCRev..No. 364 of 2018** 8 **other buildings in his possession in the rent control petition, as the burden of proof is entirely on the tenant in this respect. In** _**Kunhamina K. v. V.K.T.Aboobacker Haji**_ _**[2016 KHC 639]**_ **this court held that, if the landlord did not disclose the availability of another building in his possession, if the materials were placed before the court and he had given special reasons for not occupying the same and both parties have adduced evidence on that aspect understanding the case of each other, then no prejudice would be caused to the tenant on account of the non-disclosure of the fact in the rent control petition and it is for the court to consider the suitability of the building.** **12. In the instant case, the landlord has taken out a commission to ascertain the alleged vacant possession of the alternative buildings under his ownership and it was brought out in evidence by** **RCRev..No. 364 of 2018** 9 **the commission report that all other buildings are occupied for other businesses. Therefore, in view of the aforesaid decisions, we find that the courts below have rightly appreciated the evidence on record, under the 1[st] proviso to section 11(3) of the Act, in its correct perspective. We do not find any kind of illegality, impropriety or irregularity in the findings, whereby the courts below found that the claim for eviction is not barred by the 1[st] proviso to section 11(3) of the Act. The** **revision is accordingly dismissed.** **13. The learned counsel for the respondent/tenant sought for some time to vacate the tenanted premises. Having regard to the facts and circumstances, the respondent/tenant is given six months' time to vacate the petition schedule building, on the following conditions:** _**(1) The respondent/tenant shall file an affidavit, within two weeks from the date of**_ **RCRev..No. 364 of 2018** 10 _**receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that they will vacate the petition schedule shop room within six months from today.**_ _**(2) The respondent/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the 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 respondents/landlord will be at liberty to proceed with the execution of the eviction order.**_ **Sd/-** **K.Harilal, Judge** **Sd/-** **Annie John, Judge** **sl.**