R. Dhanaraj & K.R. Anandavally v. Sunil Kumar, Anil Kumar, Vasanthakumar & Geetha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** **RCRev.No. 388 of 2018** **AGAINST THE ORDER IN RCA 19/2015 DATED 09.08.2018 of THE ADDL. DISTRICT JUDGE - III, ALAPPUZHA (RENT CONTROL APPELLATE AUTHORITY) AGAINST THE ORDER DATED 31.03.2015 IN RCP NO.23/2013 of THE RENT CONTROL COURT, CHERTHALA** ## **PETITIONERS/ APPELLANTS/ COUNTER PETITIONERS :** **1 R.DHANARAJ, AGED 47 YEARS S/O.RAJAN, PROPRIETOR, RAJANS DIGITAL STUDIO, WEST OF MUHAMMA BUS STAND, MUHAMMA P.O., RESIDING AT THOTTUMUKHAPPIL HOUSE, MUHAMMA P.O., THANNEERMUKKOM SOUTH VILLAGE, ALAPPUZHA.** **2 K.R.ANANDAVALLY, AGED 88 YEARS, W/O.V.K.RAJAN, USHA NIVAS, THOTTUMUKAPPILAYA, CHARAMANGALAM MURI, MUHAMMA P.O., THANNEERMUKKOM SOUTH VILLAGE, ALAPPUZHA.** **BY ADVS. SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT SRI.J.OM PRAKASH** ## **RESPONDENTS/ RESPONDENTS 2 TO 5/ L.Rs OF THE PETITIONER :** **1 SUNIL KUMAR, AGED 78 YEARS, S/O.LATE K.G.SUKUMARAN, K.G.SUKUMARAN AND ASSOCIATES, HOUSE NO.XXXIX/4174, SREEKANDATH ROAD, PERUMANNUR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI - 682 015.** **RCRev.No. 388 of 2018** 2 **2 ANILKUMAR, AGED 76 YEARS, S/O.LATE K.G.SUKUMARAN, K.G.SUKUMARAN AND ASSOCIATES, HOUSE NO.XXXIV/4174, SREEKANDATH ROAD, PERUMANNUR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI - 682 015.** **3 VASANTHAKUMAR, AGED 74 YEARS, S/O.LATE K.G.SUKUMARAN, K.G.SUKUMARAN AND ASSOCIATES, HOUSE NO.XXXIX/4174, SREEKANDATH ROAD, PERUMANNUR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI - 682 015. 4 GEETHA, AGED 72 YEARS, D/O.LATE K.G.SUKUMARAN, K.G.SUKUMARAN AND ASSOCIATES, HOUSE NO.XXXIX/4174, SREEKANDATH ROAD, PERUMANNUR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI - 682 015.** **BY ADVS. SRI.V.V.SIDHARTHAN (SR.) SRI.V.V.SIDHARTHAN (SR.) SMT.APARNA SUKUMARAN SRI.D.G.VIPIN SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev.No. 388 of 2018** 3 ## **ORDER** ## K.Harilal, J. The revision petitioners are tenants who are in occupation of two rooms owned by the respondent/ landlord. (Parties are referred to as in the Rent Control Petition). According to the petitioners, the petition schedule shop room Nos.1 and 2 are _bona fide_ required for starting an Architectural Consultancy for his grandson. His grandson Deepak Sunil is an architect by profession. He is a dependent on him, for the petition schedule shop rooms. He has no other buildings of his own in his possession for the proposed consultancy. But several other vacant shop rooms are available in the locality to shift the business of the respondents from the tenanted premises. With the aforesaid averments, the petitioners prayed for an order of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [Hereinafter referred to as, 'the **RCRev.No. 388 of 2018** 4 Act']. 2. The respondents resisted the claim for eviction under Section 11(3) of the Act contending that the need projected in the petition is not _bona fide_ . According to the respondents, it is a ruse for eviction only. The petitioner is permanently residing at Ernakulam and he is also an architect. He is the owner of so many buildings and shops at Ernakulam. The said grandson Deepak Sunil is also permanently residing at Ernakulam and working along with the petitioner in his Architectural Consultancy. Therefore, there is no need to start an Architectural Consultancy at Muhamma, a place having no importance in either commercial or industrial activity. The respondents are depending on the income from the tenanted premises for their livelihood and no other buildings are available in the locality to shift their business from the tenanted premises. Thus, they prayed for dismissal of the Rent Control Petition. 3. On the rival pleadings both parties adduced evidence and after considering the evidence on record, the **RCRev.No. 388 of 2018** 5 courts below concurrently found that the need projected is _bona fide_ . The claim for eviction is not barred by the first proviso and the respondents are not entitled to get protection under the 2[nd] proviso. The legality and propriety of the aforesaid findings are assailed in this revision petition. 4. Being a revision, which is confined to examination of legality, propriety and regularity of the findings of the courts below, this Court is not inclined to re-appreciate the entire evidence on record, so as to arrive at a different finding, unless the findings of the courts below are perverse or vitiated by non-consideration of material evidence. Bearing the aforesaid legal proposition in mind, we have considered the arguments advanced by the learned counsel for the petitioner. The learned counsel for the petitioner highlighted the point that it has come out in evidence that the petitioner had another room in his possession to start the proposed Architectural Consultancy for his grandson and the same had been let out, after the institution of the Rent Control Petition; but the courts **RCRev.No. 388 of 2018** 6 below have failed to consider the evidence on record with respect to the availability of that vacant room in the possession of the petitioner, at the time of institution of the Rent Control Petition, in its correct perspective. Further, it is contended that the courts below have failed to appreciate the evidence available under the 2[nd] proviso in its correct perspective. 5. Per contra, the learned counsel for the petitioner advanced arguments to justify the concurrent findings of the courts below whereby the petitioner has been granted with an order of eviction under Section 11(3) of the Act. According to the learned counsel for the petitioner, RW3, the witness examined by the respondents themselves have deposed that he has been in possession of the alleged vacant room from 2013 onwards. Thus, the evidence adduced by the respondents themselves would show that the petitioner has no other buildings of his own to start the proposed consultancy, at the time of institution of the Rent Control Petition. 6. Going by the impugned judgment, we find that **RCRev.No. 388 of 2018** 7 in paragraph 24, the Appellate Authority has considered the alleged vacant possession of building bearing No.II/602 in the same building by the petitioner at the time of institution of the Rent Control Petition. According to PW1, the aforesaid alleged vacant room is under the occupation of RW3 as a tenant. RW3 has already obtained a lease hold right over the said shop room for the purpose of starting a stationery business of his own. The petitioner further contended that even if that shop room is remaining vacant, the said shop room is not sufficient to meet the requirement as it is a very small room when comparing with the petition schedule shop room. PW1, PW3 and RW3 have given evidence to the effect that the alleged vacant shop room, bearing No.II/602 is a small shop room, when comparing with the extent of the petition schedule shop room. No evidence has been brought out to prove the actual area of that shop room. But, when RW3, the tenant, who is alleged to have been in occupation of the said shop room was examined by the respondents themselves as their witness, he deposed that the said shop- room is a **RCRev.No. 388 of 2018** 8 small shop room, when comparing with the area of the petition schedule shop room and he had been in occupation of the room, at the time of institution of the Rent Control Petition. The aforesaid evidence of RW3 is further supported by Ext.C1 Commission Report. The Commissioner has reported that the said shop room is having a size of 1/3[rd] of the petition schedule shop room. Thus, it has come out in evidence that the alleged vacant shop room is not sufficient to meet the requirement of the petitioner so as to start an Architectural Consultancy for his grandson. In other words, the petitioner has succeeded in giving special reason for not occupying the said room bearing No.II/602. In the above view, the courts below are justified in finding that the claim for eviction is not barred by the first proviso to Section 11(3) of the Act. 7. Coming to the 2[nd] proviso, the burden of proof is on the tenant and both the limbs of the 2[nd] proviso are conjunctive. Going by paragraph 29 of the impugned judgment, we find that it has come out in evidence that several other buildings are available in the locality to shift **RCRev.No. 388 of 2018** 9 the business of the respondents from the tenanted premises. It has also come out in evidence that the 2[nd] respondent is a retired Govt. employee and she is having a monthly pension of Rs.10,000/- and they are getting Rs.3000/- only from the business in the tenanted premises. So the pension of the 2[nd] respondent is the main source of income. Therefore, it can be held that the respondents are not mainly depending on the income from the business in the tenanted premises. That apart, no evidence has been adduced to prove the income from the business carrying on in the tenanted premises. In _**Shahul Hameed A. v. P.E. Abdu Razak [2016 (5) KHC 820]**_ this Court held that the tenant, who is hiding his income from the court is not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. We do not find any reason to interfere with the aforesaid findings of the courts below. Thus perceived, we find that there is no illegality or impropriety in any of the findings whereby the courts below have concurrently found that the need projected in the petition is _bona fide_ and the respondents are not entitled to get **RCRev.No. 388 of 2018** 10 protection under the 2[nd] proviso. Thus, this revision fails and is dismissed accordingly. The learned counsel for the revision petitioners/ tenants prayed for sometime to vacate the tenanted premises. Having regard to the submission at Bar, the revision petitioners/ tenants are given one year time from today to vacate the tenanted premises on the following conditions :- 1. The revision petitioners/ tenants 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 they will vacate the petition schedule shop room within one year from today. 2. The revision petitioners/ tenants 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. **RCRev.No. 388 of 2018** 11 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/ landlords will be at liberty to proceed with the execution of the eviction order. Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM