Puttampoiyil K.K. Muhammed v. Chakkaramakool Suma Surendran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **RCRev..No. 25 of 2019** **AGAINST THE JUDGMENT IN RCA 3/2018 of THE RENT CONTROL APPELLATE AUTHORITY (ADDL.D.C. KOZHIKODE-III WAKF TRIBUNAL) DATED 23-10-2018 AGAINST THE ORDER IN RCP 16/2015 of RENT CONTROL COURT, PERAMBARA DATED 31-10-2017** ## **REVISION PETITIONER/S:** **PUTTAMPOYIL.K.K.MUHAMMED AGED 59 YEARS,S/O.ABDULLA, BUSINESS, MENHANIAM AMSOM, AND DESOM, KOYILANDY THALUK, PERAMBRA, KOZHIKODE DIST.PIN-673 525.** **BY ADV. SRI.MANJERI SUNDERRAJ** ## **RESPONDENT/S:** **1 CHAKKARAMAKOOL SUMA SURENDRAN AGED 64 YEARS,W/O.SURENDRAN,** **64/17 YEARS, (RC PETITIONER), KOOTHALI AMSOM, DESOM, KOOTHALY PO, PERAMPRA, KOYILANDY THALUK, KOZHIKODE DIST. PIN-673 525.** **2 CHEROTEHPUTHUKKUDY NITHIN SIVASANKARAN S/O.LATE SISANKARAN, 34/17 YEARS, (R2), PUTHIYANGDI AMSOM, ATHANIKKAL DESOM, KOZHIKODE THALUK, KOZHIKODE DISTRICT, PIN-673 005. 3 CHEROTEHPUTHUKKUDY NIMNA SIVASANKARAN, D/O.LATE SIVASANKARAN, AGED 32/17,(R3), PUTHIYANGDI AMSOM, ATHANIKKAL DESOM, KOZHIKODE THALUK, KOZHIKODE DISTRICT, PIN-673 005.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 25 of 2019 2** ## **ORDER** ## **K.HARILAL,J** The revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently by the courts below under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (herein after referred to as 'the Act'). The parties are referred to as in the rent control petition. 2. According to the petitioner, he needs the plaint schedule shop room to start a business for his son, to eke out income for his own livelihood. He has no other vacant shop rooms of his own in his possession to start a bakery and cool drinks business. The respondent is not depending on the income derived from the tenanted premises and **RCRev..No. 25 of 2019 3** several other vacant buildings are available in the locality to shift his business from the tenanted premises. With the aforesaid averments, he sought for an order of eviction under Section 11(3) of the Act. 3. The respondent resisted the claim for eviction, contending that the need projected is not _bona fide_ and it is a ruse for eviction only. According to him, the petitioner has other buildings of his own, in his possession, to start the said business and no other vacant buildings are available in the locality to shift his business from the tenanted premises only. He is depending upon the income derived from the business from the tenanted premises. So he is entitled to get protection under the second proviso to Section 11(3) of the Act. **RCRev..No. 25 of 2019 4** 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected in the petition is _bona fide_ , and the claim for eviction under Section 11(3) of the Act is not barred by the first proviso and the respondent is not entitled to get protection under the second proviso of Section 11(3) of the Act. The legality and property of the aforesaid findings are assailed in this revision petition. 5. Heard the learned counsel for the revision petitioner/respondent/tenant. 6.The learned counsel for the respondent/ tenant advanced arguments focusing the point that the courts below had failed to consider the evidence on record available in respect of the alleged **RCRev..No. 25 of 2019 5** _bona fide_ need, in its correct perspective. According to the learned counsel, it has come out in evidence that the petitioner himself deposed that, if the respondent is evicted from the tenanted premises, and it is let out to another person, he will get Rs.10,000/- per month. But now, he is getting Rs.2,000/- only. The aforesaid desire for higher rent would negate the _bona fide_ of the need, according to the learned counsel for the respondent. Further, it is contended that absolutely there is no evidence to prove that suitable buildings are available in the locality to shift the respondent's business from the tenanted premises and the burden of proof is on the landlord. Ext.C1 Commission Report would prove to the extent that some vacant buildings are available in the locality; but **RCRev..No. 25 of 2019 6** there is no evidence to prove that those buildings are suitable for conducting the respondent's business. According to the learned counsel for the respondent/tenant, the petitioner should have proved that the buildings available in the locality are suitable for conducting the respondent's business. In the absence of such evidence, which would prove the suitability of available buildings for the occupation of the respondent, the respondent is entitled to get protection under the second proviso of Section 11(3) of the Act. No other point has been raised before us in this revision. 7. At the out set, we must remind ourselves the limited scope and extent of interference with the factual findings of the courts below in revision, which are confined to the legality, propriety and ## **RCRev..No. 25 of 2019 7** regularity of the findings of the courts below only. This Court is not inclined to take a different view, in lieu of the concurrent findings of the courts below, on a factual findings, unless, the findings of the courts below are perverse or vitiated by non-consideration of material evidence. Therefore, in view of the arguments advanced by the learned counsel for the petitioner, on _bona fide_ of the need, the question to be considered is whether there is any perversity in the appreciation of evidence of _bona fide_ need. 8. We are unable to agree with the said contention that the desire for higher rent would negate the _bona fides_ of the need. The desire for higher rent is a wishful thinking of all the landlords. So merely for the sole reason that the landlord has **RCRev..No. 25 of 2019 8** expressed his view that he will get a higher rent, if the petition schedule shop room is let out to another tenant, it could not be said that the need projected in the rent control protection is not _bona fide_ . The above view is supported by _**Kurian K.**_ _**Kuriakose**_ v. _**Usha Cherian and Others**_ _**[2008(1) KLT 739]**_ , wherein, this Court held that the demand for enhanced rent is not a ground to reject the claim for eviction on the ground of lack of _bona fide_ . Therefore, in the above view, we reject the contention that the need projected in the petition was a ruse for getting enhanced rent. 9. Further, the learned counsel for the respondent submits that there is no evidence to prove that the vacant buildings reported by the Commissioner are suitable for the respondent's business. In the absence of **RCRev..No. 25 of 2019 9** evidence to prove the suitability of available buildings in the locality, the respondent is entitled to get protection under the second proviso of Section 11(3) of the Act, the learned counsel contends. 10. We are not inclined to accept the said arguments also in view of the legal position, which stands well settled by plethora of decisions of this Court and the Apex Court. It stands settled by the Full Bench of this Court in _**Francis**_ v. _**Sreedevi**_ _**Varasiyar [2003(2) KLT 230]**_ that both the limbs under the second proviso of Section 11(3) of the Act are conjunctive and the burden of proof under the second proviso is on the tenant. In the instant case, the Commissioner in Ext.C1 report has stated that several other vacant buildings are available in the locality to shift the **RCRev..No. 25 of 2019 10** |respondent's business from the tenanted| |---| |premises. We are of the opinion that, if| |those vacant buildings, referred to in| |Ext.C1 report are not suitable for the| |respondent's business, certainly, the| |respondent<br>should<br>have<br>proved<br>the| |unsuitability of those buildings for| |conducting his business in evidence. But,| |the respondent/tenant has not taken any| |steps to prove his contention that the| |vacant shop rooms referred to in Ext.C1| |report are not suitable for his jewellery| |business.<br>Further, we are of the opinion| |that the burden of proof in this respect was| |not on the landlord, but it is on the tenant| |himself. In the above view, we reject the| |argument advanced by the learned counsel for| |the respondent in this regard.| **RCRev..No. 25 of 2019 11** 11. In the above analysis, we find that there is no illegality or impropriety or perversity in the appreciation of evidence on _bona fide_ need and the denial of protection under the second proviso of Section 11(3) of the Act. 12. However, the learned counsel for the revision petitioner seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given seven months' time to vacate the tenanted premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of the copy of this order. 2. The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted **RCRev..No. 25 of 2019 12** premises within a period of seven months from today. 3. The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy of this order. 13. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondents are entitled to enforce the order. Hence the revision petition fails and accordingly dismissed. ## **Sd/-** ## **K.HARILAL** **JUDGE** **Sd/-** **ANNIE JOHN** **JUDGE** SB/17.01.2019