Puthan Purayil Ramachandran v. Kanappali Iringa Janaki and Aravindakshan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** **RCRev..No.76 OF 2020** **AGAINST THE ORDER/JUDGMENT IN RCA 85/2018 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA** **AGAINST THE ORDER/JUDGMENT IN RCP 86/2016 OF MUNSIFF COURT, VADAKARA** ## **REVISION PETITIONER/S:** **PUTHAN PURAYIL RAMACHANDRAN AGED 66 YEARS S/O. RAMAN MASTER, RAMANAND, PARAVANTHALA, VADAKARA, KOZHIKODE-673004.** **BY ADV. SRI.R.PARTHASARATHY** ## **RESPONDENT/S:** **1 KANAPPALI IRINGA JANAKI W/O. SANKARAN, VADAKARA AMSOM, VADAKARA DESOM, KOZHIKODE-673101. 2 ARAVINDAKSHAN, S/O.JANAKI, ANASWARA, KURIKILAD P O, VAIKKILASSERY AMSOM, KURIKKILAD DESOM, VADAKARA TALUK, PIN-673104.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19-03-2020, THE COURT ON 19-05-2020 PASSED THE FOLLOWING:** 2 ## **RCRev..No.76 OF 2020** ## **ORDER** ## **C.S.DIAS, J.** The revision petitioner was the appellant in RCA No.85 of 2018 on the file of the Rent Control Appellate Authority (in short 'Appellate Authority'), Vatakara. The respondents in this revision petition were the respondents in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Vatakara, in RCP No.86 of 2016. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition (RCP) as 'petitioners' and 'respondent'. 3. The petitioners had filed the RCP 3 ## **RCRev..No.76 OF 2020** against the respondent, inter alia, pleading as follows: The petition schedule shop room (hereinafter for brevity referred to as 'shop room') originally belonged to the 1[st] petitioner's father, who had leased the shop room to the respondent as per Kachit No.331/1972 of the Sub Registry Office, Vatakara. The 1[st] petitioner's father had bequeathed the shop room in favour of the 1[st] petitioner as per Will deed dated 26.09.1959. After the death of the 1[st] petitioner's father, she became the owner of the shop room. The respondent had attorned to the tenancy. The 2[nd] petitioner is the son of the 1st petitioner. The 2[nd] petitioner is a seafarer by profession, on contract basis. He has completed the age of 60 years. His services would be terminated since he has reached the age of 4 ## **RCRev..No.76 OF 2020** super annuation. The 2[nd ] petitioner is no longer interested to undertake voyages. He is desirous of starting a stationery business in the shop room for his livelihood. The petitioners have no other shop rooms in their possession. The 2[nd] petitioner is depending on the 1st petitioner. The petitioners' bona fide need the shop room for the aforesaid purpose. The respondent is not carrying on any significant business in the shop room for the last many years. He is not depending on the income derived from the business being conducted in the shop room for his livelihood. There are numerous vacant shop rooms in the locality for the respondent to shift his business. The petitioners issued a lawyer notice to the respondent demanding vacant possession of the shop room. However, the 5 **RCRev..No.76 OF 2020** respondent sent a reply notice raising all baseless allegations. Hence the petitioners prayed for an order of eviction under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). 4. The RCP was contested by the respondent, who filed a written objection, controverting the allegations in the RCP. His case, in brief, was as follows: The petitioners are living in different houses. They are not dependant on each other, as alleged in the RCP. The bona fide need projected by the petitioners is not true, but is only a ruse to evict the respondent from the shop room. The 2[nd] petitioner is gainfully employed as a seafarer and his services will not be terminated as alleged in the RCP. The 2[nd] petitioner has 6 **RCRev..No.76 OF 2020** undertaken a voyage even after the demand notice was issued. The rent was enhanced, on the basis of the mutual on understanding, 29.09.2015. The respondent is entitled to the immunity provided under the statute. The 2[nd] petitioner will not conduct a stationery shop as alleged in the RCP. The allegation that the respondent is not carrying out any trade in the premises is false. The respondent has a residential building. He has another 4 cents of land, without any improvements. There are no other suitable rooms in the locality for the respondent to shift his business. Hence the RCP may be dismissed. 5. The 2[nd] petitioner was examined as PW1 and Exts. A1 to A3 were marked through him. The respondent was examined as RW1 and 7 **RCRev..No.76 OF 2020** Exts. B1 and B2 were marked through him. The Commission Report was marked as Ext.C1. 6. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the shop room under Sec.11(3) of the Act. The respondent was directed to put the petitioners in vacant possession of the shop room within a period of three months from the date of the order. 7. Aggrieved by the impugned order passed by the Rent Control Court, the respondent preferred RCA No.85 of 2018 before the Appellate Authority. The Appellate Authority by the impugned judgment dated 21.12.2019 dismissed the appeal and confirmed the order of eviction passed by the Rent Control Court. 8 **RCRev..No.76 OF 2020** 8. It is challenging the judgment passed by the Appellate Authority in RCA No.85 of 2018 and the order passed by the Rent Control Court in RCP No.86 of 2016, that this Rent Control Revision is filed. 9. Heard Sri.B.Krishnan, the learned counsel for the revision petitioner. 10. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the shop room under Sec.11 (3) of the Act. According to him, the petitioners have not proved the bona fide need as projected in the RCP. The courts below have failed to take note of the fact that the 2nd petitioner is still continuing to work as a seafarer and, therefore, the need projected by him is only a ruse to evict 9 **RCRev..No.76 OF 2020** the respondent from the shop room. The evidence that is on record clearly shows that the 2nd petitioner is continuing with his voyages, which establishes that there is no necessity for him to start a a stationery business as projected in the RCP. He also contended that the courts below have not given the respondent the protection under the 2nd proviso to Section 11(3) of the Act. Hence, he prayed that the revision petition be allowed and the concurrent findings of the courts below be set aside. 11. The question that emerges for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below by ordering eviction of the respondent under Sec.11 (3) of the Act. 10 ## **RCRev..No.76 OF 2020** 12. It is trite law that, this Court while exercising its revisional jurisdiction under Sec.20 of the Act is not expected to reappreciate the entire pleadings and evidence on record. This Court is only supposed to examine the legality of the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings and evidence on record. 13. The trump card of the revision petitioner before the courts below was that the 2nd petitioner had undertaken a voyage as a seaman subsequent to the issuance of Ext.A2 eviction notice. According to the respondent, this proves that the need projected by the petitioners is not bonafide and tantamounts to approaching the court with unclean hands. 11 ## **RCRev..No.76 OF 2020** According to the respondent, Ext.A2 lawyer notice was issued on 16.09.2015 on the assertion that the 2nd petitioner has retired as a seaman and that he needs to start a business. However, he undertook a voyage on the high seas till 29.08.2016. Thus, the same situation continues even today and the bona fide need projected by the petitioners cannot be believed. 14. It is settled law in a catena of decisions that it is not for the tenant to dictate the choice of the landlord in deciding his proposed business. 15. It is settled law in **Deep Chandra** **Juneja vs Lajwanti Kathuria** [ AIR 2008 SC 3095] that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the 12 **RCRev..No.76 OF 2020** need put forward by the landlord is genuine or not, and is not a ruse for eviction. 16. The Supreme Court in **Sarla Ahuja vs United India Insurance Company Ltd** [(1998) 8 SCC 119], held that when a landlord asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide. 17. It is an undisputed fact that on the date the 2[nd ] petitioner gave evidence as PW1, he had attained the age of 62 years. This was in the 13 ## **RCRev..No.76 OF 2020** year 2018. Presently, the 2[nd] petitioner is aged 64 years. Furthermore, it is trite that a person who projects bonafide need is not expected to give up his avocation merely on filing a RCP, and on expectation that he would get an order of eviction in the future. The said testimony is not discredited in the cross examination. We are satisfied that the need projected by PW1 is bona fide. Admittedly, the 2[nd] petitioner is the son of the 1[st] petitioner. Hence, he is dependent on the 1st petitioner. It is settled law that dependency contemplated under Section 11(3) of the Act, does not mean financial dependency alone. The case of the petitioners is that the 2[nd] petitioner wants the shop room to start a business of his own. On going through the pleadings and evidence and the law laid down in the aforecited 14 **RCRev..No.76 OF 2020** decisions, we are convinced that the courts below have rightly arrived at the legitimate conclusion that the bona fide need projected by the petitioners is genuine. We do not find any reason to take a contrary view from the findings that have been arrived at by the courts below. 18. The next question that arises for consideration is whether the RCP is hit by the 1[st] proviso to Section 11(3) of the Act, and whether the respondent is entitled to the benefit of the 2nd proviso to Section 11(3) of the Act. It is trite law that the entire burden of proof to substantiate that the petitioners are in possession of any other building is on the respondent. Undisputably, the respondent has not been in a position to substantiate that the petitioners have any other vacant shop rooms in 15 ## **RCRev..No.76 OF 2020** their possession for the bona fide need of the 2[nd] petitioner. Thus, the RCP is not hit by the 1st proviso to Section 11(3) of the Act. 19. Coming to the question whether the respondent is entitled to the benefit of the 2[nd] proviso to Section 11(3) of the Act, which consists of two limbs which are conjunctive. It is the specific case of the petitioners that the respondent's wife is conducting a hotel business. The respondent while examined as RW1 admitted that his children are employed and are self sufficient. It is proved that the respondent has other sources of income. The burden of proof was on the respondent to prove that the respondent is depending on the income derived from the business being conducted in the shop room. The respondent has not produced any 16 **RCRev..No.76 OF 2020** material before the courts below to substantiate his defence. Therefore, the respondent is not entitled to the benefit of the 1st limb of the 2[nd] proviso to Section 11(3) of the Act. As regards the 2[nd ] limb of 2[nd ] proviso to Section 11(3) of the Act, the Advocate Commission in Ext.C1 Commission Report has reported that there several shop rooms in the locality. Here also, the burden of the proof was on the respondent to substantiate that there are no vacant rooms suitable for him to shift his business. The respondent has not discharged the burden on his shoulders. It is on record in Ext.C1 report that there are two rooms lying vacant in the same locality, which was sufficient enough for the respondent to shift the business. Even though the respondent raised a contention that the shop 17 **RCRev..No.76 OF 2020** rooms are not situated in the same locality where the shop room in question is located, we do not find the same to be of much relevance as the fact finding Courts have concurrently found that the vacant shop rooms are in close proximity to the shop room in question. Thus, with materials available on record, we hold that the respondent is not entitled to the benefit of the 2[nd ] limb of the 2[nd ] proviso to Section 11(3) of the Act. 20. In the totality of the facts and circumstances of the case, the pleadings and evidence on record and after going through the order and judgment of the courts below, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered the eviction of the respondent under 18 ## **RCRev..No.76 OF 2020** Section 11(3) of the Act. We confirm the concurrent findings of the Rent Control Court in RCP No.86 of 2016 and the Appellate Authority in RCA No.85 of 2018. 21. At the said point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the shop room. Taking into consideration the fact that the RCP was filed in the year 2016 and that the RCA was filed in the year 2018, we feel that the revision petitioner has got more than sufficient time to vacate the building. However, considering the fact that the revision petitioner is conducting a trade in the shop room, we feel that a reasonable time period of five months can be granted to the revision petitioner to find an alternate accommodation and shift his business. In the said circumstances, 19 ## **RCRev..No.76 OF 2020** we grant the revision petitioner five months' time to vacate the shop room 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 or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop rooms within five months from today. (2) The revision petitioner/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 landlord will be at liberty to proceed with the execution of the 20 ## **RCRev..No.76 OF 2020** eviction order. In the result, this revision petition is accordingly dismissed. Sd/- **K.HARILAL JUDGE** Sd/- **C.S.DIAS JUDGE** kkj