RadhaKrishnan v. Manju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938** **RCRev..No. 131 of 2016 () -------------------------AGAINST THE JUDGMENT IN RCA 15/2014 of ADDL. DISTRICT COURT-VI, KOLLAM, DATED 16-02-2016. & AGAINST THE ORDER IN RCOP 74/2012 of PRINCIPAL MUNSIFF COURT, KOLLAM, DATED 04-03-2014.** **REVISION PETITIONER(S): ----------------------** **RADHAKRISHNAN, AGED 50YEARS, S/O.SUKUMARN, KOOTTIL VEEDUE, THEKKECHERY WARD, KANJAVELI P.O., PRAKKULAM, KOLLAM-691.** **BY ADVS. SRI.K.BABU RAJAN SRI.K.JALADHARAN SRI.T.A.SREE KUMAR** **RESPONDENT(S):** **--------------** **MANJU, AGED 39 YEARS, W/O.SUJITH, MUTHLAZHIKATHU PURTHEN VEEDU, KADAVOOR CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM-691.** **R1 BY ADVS. SRI.N.DHARMADAN (SR.) (CAVEATOR) SMT.D.P.RENU** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** SS ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------ ## **R.C.R.No.131 of 2016** -------------------------------------------------------------Dated this the 7[th] day of April, 2016 ## **ORDER** ## **K.RAMAKRISHNAN, J.** Tenant respondent in R.C.(O.P.)No.74/2012 on the file of the Rent Control Court, Kollam is the revision petitioner herein. The rent control petition was filed by the respondent herein as landlady seeking eviction of the petition schedule building from the possession of the tenant on the ground of _bonafide_ need under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 hereinafter referred to as 'the Act' for short. 2. The case of the petitioner/landlady in the case was that, she got the property as per settlement deed No.1024/2008 of S.R.O. Anchalummoodu. The property originally belonged to her younger brother and he started stationery business in the building with the assistance of his parents. While so he died and subsequently the property was settled in her favour by her father. Before settling the property in favour of the petitioner, her father Sri.Bharathan continued the business for sometime by taking licence in his name and he was conducting the business with name 'Thriveni Shopping Centre'. Thereafter the petitioners mother/landlady's mother fell ill. So father discontinued the business and as advised him, the building along with _**R.C.R.No.131 of 2016**_ 2 the articles in the shop were let out to the present revision petitioner for rent for a period of 11 months and a rent deed was executed on 2.12.2011. After the expiry of the period, he did not vacate. The petitioner's father and sister-in-law Smt.P.R.Ajeesha who is unemployed wants to continue the business, which was conducted earlier in the petition schedule building and they are depending on the petitioner for that purpose. They have no building in their possession. The rent up to 30.09.2012 was paid and thereafter the rent was kept in arrears. He filed O.S.No.746/2012 alleging that they were trying to evict him from the property forcibly. The rent was sent by money order for October 2012 and that was received by her. There are other buildings available in the locality and since the tenant did not vacate the premises, she filed the petition for eviction under Section 11(3) of the Act. 3. The revision petitioner respondent in the rent control court filed counter denying the allegations. He admitted that the petitioner is a landlord and he obtained the building from her. The allegation that her father was conducting the business and since petitioner's mother fell ill, he stopped the business and rented out the building to the respondent is not correct. The building is in the possession of the revision petitioner from 01.11.2011 on a monthly rent of 2,000/-. The allegation that the father of the petitioner wanted the₹ building to be let out to the respondent and that was the reason why it _**R.C.R.No.131 of 2016**_ 3 was let out from him is not correct. The allegation that the father of the petitioner along with sister-in-law Smt.Ajeesha were going to conduct a business is not correct. Smt.Ajeesha is permanently residing at Thiruvananthapuram along with her husband who is a bank employee and the petitioner is also employed and there is no possibility of conducting business as claimed. It is only a ruse to evict the tenant that such a claim has been made. The father of the petitioner disturbed the respondents from conducting the business. He filed O.S.No.746/2012 before the Munsiff Court against forcible eviction which prompted the landlady to file the application. There are no buildings available in the locality. So he prayed for dismissal of the application. 4. In order to prove the case of the landlady, the father of the petitioner was examined as PW1 and Advocate Commissioner was examined as PW2 and Exts.A1 to A6, C1 and C1(a) were marked on her side. The respondent was examined as RW1 and B1 series were marked on his side. After considering the evidence on record, the court below found that the need alleged is _bonafide_ and the tenant is not entitled to get the proviso protection and allowed the application under Section 11 (3) of the Act. Aggrieved by the same, the tenant filed R.C.A.No.15/2014 before the Rent Control Appellate Authority, Kollam which was made over to IV[th ] Additional District Court, Kollam for disposal and the appellate authority by the impugned judgment dismissed the _**R.C.R.No.131 of 2016**_ 4 appeal confirming the order of eviction passed by the rent control court. Dissatisfied with the concurrent findings of the courts below, the above revision has been filed by the revision petitioner/ tenant/respondent before the court below. 5. Smt.D.P.Renu filed caveat and proposed to appear for the respondent. So we decided to admit the revision and dispose of the revision itself after hearing both sides on merit today itself. 6. Heard Sri.Babu Rajan, counsel appearing for the revision petitioner and Smt.D.P.Renu, counsel appearing for the respondent. 7. The counsel for the revision petitioner submitted that the allegation in the petition was that they want the petition schedule building to start a business for the father of petitioner as well as her sister-in-law and there is no possibility for them conducting the business as her sister-in-law is residing in Thiruvananthapuram along with her husband, who is a bank employee and the petitioner is also a bank employee and she cannot also conduct the business. Further the circumstances will go to show that the need alleged is not _bonafide_ and it is only a ruse to evict the tenant from the petition schedule building. Further the court below was not justified in denying second proviso protection to the tenant. Learned counsel relied on the decision reported in _**J.C.R. Trading Company (P) Ltd., v. Varghese**_ (2009(1) _**R.C.R.No.131 of 2016**_ 5 ## KLT 963) in support of his case. 8. On the other hand, the learned counsel for the respondent submitted that the courts below have properly considered the evidence and held that the need alleged is bonafide and the tenant is not entitled to get proviso protection and allowed the application for eviction and the concurrent finding of the courts below do not call for any interference. 9. The fact that the building belongs to the landlady/respondent herein and it was taken on rent from 01.11.2011 by the revision petitioner is not in dispute. The case of the landlady in the petition was that her brother who was the earlier owner was conducting the business and he died and his father continued the business for sometime and since the mother of the landlady fell ill, father could not continue the business and as advised by the father, the building was let out to the present revision petitioner. Now father wants to revive the business along with her sister-in-law, who is unemployed and for that purpose, they required the petition schedule building. This was denied by the tenant. In order to prove the case of the landlady, the father of the petitioner on whose behalf the claim for _bonafide_ need was made, was examined as PW1. He had categorically stated that he wanted to conduct the business. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. _**R.C.R.No.131 of 2016**_ 6 Further RW1 had admitted in his evidence that prior to handing over the business, the father was conducting the business and thereafter the building along with the articles in the shop room were entrusted to him to continue the business on rental basis. So that proves that there was business conducted earlier even after the death of the original owner, namely the brother of the landlady. Further the respondent/tenant has no case that PW1 has got any other occupation as well. When the need alleged for some family member, it is not necessary that the landlady has to go to the witness box to prove this fact. This was so held in the decision reported in _**Ratheesh Kumar v. Jithendra Kumar**_ (2005(2) KLT 669), which has been approved by another Division Bench of this court in the decision relied on by the counsel for the revision petitioner namely, _**J.C.R. Trading Private Ltd., v. Varghese**_ (2009(1) KLT 963). It cannot be said that father is not a family member on whose behalf a claim for eviction under Section 11(3) cannot be made. Further the decision relied on by the counsel for the petitioner is not applicable to the facts of this case. It is true that when comparing the grounds for eviction under Section 11(3) and 11(8), the position will be more rigour in respect of considering the question of _bonafide_ need under Section 11 (3) of the Act. But at the same time, it is not necessary, unless the malafides were projected and proved by the tenant, there is nothing to doubt the genuineness of the need alleged by the landlord as it has to _**R.C.R.No.131 of 2016**_ 7 presume that the need is bonafide. The fact that the brother of the petitioner was conducting the business in the petition schedule building earlier and after his death, it was continued by the father for some time will go to show that he has got the experience in conducting the business and that there was a tradition in conducting the business in the petition schedule building by the family members of the landlady. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the need alleged by the landlady is _bonafide._ 10. As regards the second proviso protection is concerned, there is no pleading in the counter statement that he is solely depending on the income derived from the business that is being conducted in the petition schedule building. But he had only denied the allegation in the petition that there are other buildings available in the locality. The evidence of PW2 coupled with Exts.C1 and C1(a) will go to show that there are other buildings available in the locality. The tenant has not adduced any evidence to prove that he had made any enquiries with those persons to ascertain as to whether those buildings are available or not. It is settled law that in order to claim the protection under second proviso to section 11(3) of the Act, it is for the tenant to plead and prove both the ingredients and if any one of the ingredient is not established, then he is not entitled to get the benefit. So under the _**R.C.R.No.131 of 2016**_ 8 circumstances, the courts below were perfectly justified in coming to the conclusion that the tenant is not entitled to get second proviso protection and concurrently held that the need alleged is _bonafide_ and the landlady is entitled to eviction under section 11(3) of the Act and rightly ordered eviction under that section and the concurrent finding of the courts below do not call for any interference, invoking the power under section 20 of the Act. 11. After considering the rival submissions even while dismissing the revision petition, we deem it appropriate to grant to the revision petitioner three months time from today i.e., 7.7.2016 to surrender vacant possession of the petition schedule building to the landlord subject to the following conditions. The revision petitioner shall file an undertaking in the form of an affidavit before the rent control court or before the execution court if any execution petition is pending on 23.05.2016 undertaking that he will unconditionally surrender vacant possession of the petition schedule building to the landlord on the date of expiry of the time granted by this court to 7.7.2016 and that he will deposit the arrears of rent if any payable by him within that time to 23.05.2016 and continue to pay the rent at the rate agreed between the landlord and the tenant till the date of surrender of the vacant possession of the building as directed and further undertake that he will not induct any third parties in possession _**R.C.R.No.131 of 2016**_ 9 of the petition schedule building or sublet the building or commit any act of waste therein. The affidavit will have to be filed on or before 23.05.2016 and if the affidavit is not filed, or if he violates the conditions in the affidavit, then the revision petitioner shall not entitled to get the benefit of time granted for vacating the premises by this court and the landlady shall be entitled to apply for execution of the order of eviction of the petition schedule property through court by filing execution petition in accordance with law. With the above direction and observation, the revision petition is dismissed. ## _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** // True Copy// P.A. to Judge ss