RCRev.128/23

RCRev.128/23 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 RCREV. NO. 128 OF 2023 RCP 66/2010 OF RENT CONTROL COURT/DISTRICT & SESSIONS** **COURT,THRISSUR** **RCA 19/2015 OF RENT CONTROL APPELALTE AUTHORITY, THRISSUR REVISION PETITIONERS/APPELALNTS 2 TO 4 /LRS OF 2ND RESPONDENT IN RCP:** 1 SHOLY ASSISSI AGED 49 YEARS W/O. LATE ASSISSI, CHAZHOOR, THATTUPARAMBIL HOUSE, KOTTEKKAD DESOM, KUTTUR VILLAGE.THRISSUR TALUK, THRISSUR DISTRICT -, PIN - 680013 2 ANE MARIYA ASSISSI AGED 25 YEARS D/O. LATE ASSISSI, CHAZHOOR, THATTUPARAMBIL HOUSE, KOTTEKKAD DESOM, KUTTUR VILLAGE.THRISSUR TALUK, THRISSUR DISTRICT -, PIN - 680013 3 ANTHONY CHAZHOOR AGED 21 YEARS S/O. ASSISSI, CHAZHOOR, THATTUPARAMBIL HOUSE, KOTTEKKAD DESOM, KUTTUR VILLAGE.THRISSUR TALUK, THRISSUR DISTRICT -, PIN - 680013 BY ADVS. SANTHOSH P.PODUVAL R.RAJITHA CHITHRA S.BABU ## **RESPONDENTS/RESPONDENTS 2 TO 5/1ST RESPONDENT IN RCP:** 1 C.J.BABU S/O.OUSEPH,CHAZHOOR, THATTUPARAMBIL HOUSE, KOTTEKKAD DESOM, KUTTUR VILLAGE, . KUTTUR VILLAGE.THRISSUR TALUK, THRISSUR DISTRICT -, PIN - 680013 RCRev.128/23 2 |2|VALSALA KALADHARAN| |---|---| ||AGED 71 YEARS, W/O.LATE KALADHARAN, KALALAYATHIL| ||KALARIKKAL HOUSE, PARAKKAD VILLAGE AND DESOM, THRISSUR| ||TALUK, THRISSUR DISTRICT-, PIN - 680620| |3|SUVARNA SANTHOSH| ||AGED 50 YEARS, W/O.SANTHOSH, KALALAYATHIL KALARIKKAL| ||HOUSE, PARAKKAD VILLAGE AND DESOM, THRISSUR TALUK,| ||THRISSUR DISTRICT-, PIN - 680620| |4|SURJITH KALADHARAN| ||AGED 48 YEARS, W/O. LATE KALADHARAN, KALALAYATHIL| ||KALARIKKAL HOUSE, PARAKKAD VILLAGE AND DESOM, THRISSUR| ||TALUK, THRISSUR DISTRICT-, PIN - 680620| **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev.128/23 3 ## A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ............................................................ RCRev. No.128 of 2023 ............................................................. Dated this the 16[th] day of June, 2023 ## O R D E R ## Mohammed Nias C.P., J. The tenants, respondents in RCP No.66/2010 on the file of the Rent Control Court, Thrissur, have filed this revision, aggrieved by the judgment in RCA No.19/2015 rejecting the appeal preferred by them confirming the orders of eviction. 2. The Rent Control Petition was filed by the landlords, the respondents herein, seeking eviction of the tenants from the petition schedule room under Section 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the Act). The petitioner is the absolute owner of the petition schedule room and rooms situated adjacent to it in the building by virtue of a sale deed No. 184/1989. The petition schedule room was taken on lease by the first respondent on 26.4.1991 for a monthly rent of Rs.950/- per month. The petitioner is in bonafide need of the petition schedule room in order to start a collection point of Akshaya centre and to conduct a computer centre. The petitioner has the RCRev.128/23 4 financial capacity to start the business. The building is convenient for the purpose. The petitioner does not have any other room under possession within Thrissur Corporation. The petitioner wants to start the business for the survival and financial stability of his family. The petitioner is a senior citizen and has no fixed income or means to support herself independently other than the rental income. The petitioner is bonafide and requires the petition schedule room for running the Akshaya Centre. The business in the petition schedule room is not the main source of income of the respondent. The landlord also contended that respondent No.1 unauthorisedly sublet the building to respondent No.2. The said aspect was brought out at the time when the advocate commissioner filed a report in RCP 45/2010. 3. Respondent No.1 contended that since the petitioner was residing outside Kerala, the rent was being paid to his father-in-law namely Thankappan. Thereafter, the rent was paid to one Davis upon the instruction of the petitioner. Respondent No.1 contended that he underwent treatment on account of excessive alcoholism and during that period he permitted respondent No.2 to conduct business in the room on payment of Rs.500/- towards the share of profits but respondent No.2 failed to pay a share of the profits and is continuing possession of the room illegally. So, the allegation that the building was sublet to respondent No.2 is false. 4. Respondent No.2 contended that respondent No.1 took the building on rent from the petitioner on 26.4.1991. Earlier one Mani was the tenant and after he surrendered, the room was leased to respondent No.1. Respondent No.1 surrendered that room to the petitioner on 22.6.2022. Then respondent No.2 took the building on rent from the petitioner by executing a rent deed dated 22.6.2002 RCRev.128/23 5 fixing rent at Rs.750/- per month and used to pay rent without any default. He is running a business of assessing the quality of gold. Respondent No.2 further contends that the petitioner is a film producer, having several properties in the same locality as well as other places in the city and there is a shop room in his possession lying vacant, and if he wants he can shift the business to those shop rooms. Respondent No.2 states that he has no other means to look after his family and no other suitable building is available in the locality to run his business. He further contends that the need projected by the landlord is not a bona fide one. 5. In the trial court, on the part of the petitioner, PW1 and PW2 were examined and Ext A1 to A8 were marked. On the side of the second respondent, RW1 was examined and Exts.B1, B2, B3, B4, B7, B8 and B11 were marked. The trial court found that the first respondent had sublet the petition schedule room to the second respondent and also found that the need set up is bonafide and ordered eviction under Sections 11(3) and 11(4)(i) of the Act, directing the respondents to vacate the petition schedule property. 6. Against the order of eviction, an appeal was preferred by the tenant in which the appellate authority found that the respondents failed to bring out the jural relationship among them and affirmed the order of eviction under Section 11(4)(i). The appellate court also found that the need of the landlord is bonafide and held that the need of the landlord did not get eclipsed by the death of the landlord. As the burden was upon the tenant to establish both limbs covered by the second proviso of Section 11(3) of the Act, which they failed to establish, the appellate court confirmed the order passed by the lower court under Sections 11(3) and 11(4)(i) of the Act. RCRev.128/23 6 7. Having heard the learned counsel for the revision petitioners, we are not inclined to entertain this revision petition. Both the courts below found that respondent No.1 in the rent control petition was the tenant and that it was without the consent of the landlord, the building was sublet to the second respondent. The second respondent had also admitted the fact that as on the date of the petition, he was having possession of the room. In such a situation, it was upto the tenant to explain the jural relationship between them. The contention of the second respondent that he took the building on lease directly from the landlord itself showed that he was also attempting to set up a direct lease with the landlord. The first respondent also had admitted that he had handed over the business to the second respondent who is none other than his brother as he was undergoing treatment for alcoholism. Ext.B5 document, styled as a statement and executed by respondent No.1 in favour of respondent No.2, did not prove that the landlord leased the building to respondent No.1. On the other hand, it helped the case of sub-lease projected by the landlord. The further contention of the second respondent that Ext.B1 series rent receipts were issued by one Thankappan and the wife of the landlord after receiving the rent from him also cannot be accepted as there was no evidence to prove that either Thankappan or the wife of the landlord was authorised to receive the rent on behalf of the landlord. The appellate court also rightly relied on the judgment of this Court in Ganesh v. Varghese [2005 (1) KLT 282] for holding that the payment of rent by the sub-tenant and issuance of receipts by the landlord by itself will not defeat the right of the landlord to claim eviction. These findings of the authorities below, according to us, are supported by the evidence on record and call for no interference. RCRev.128/23 7 8. Regarding the contention that since eviction was sought under Section 11(3), on the ground that the landlord needed possession of the building to start a business, with the death of the landlord, the need came to an end as it was no longer surviving, was rightly rejected. The appellate court found that the need of the original landlord was as the head of the family and it cannot be assumed that he had intended to start the business for himself alone when his children and wife were residing with him and in such circumstances, it has to be presumed that the need spoken to by him was the need of his dependents as well. For arriving at this finding, the appellate court also followed the dicta laid down by this Court in Narayanan v. Thahira [2009 (3) KLT 749] and in Chella Rowther v. Remabhai [2011 (1) KLT 850] . It is also to be noted that the additional respondents herein, who were impleaded in the proceedings on the death of the landlord, were his widow and children. They have continued the proceedings also by taking advantage of the trial court finding that the need projected was bona fide. These findings of fact entered into by the courts below regarding the bona fide need are perfectly in order. The other contention that the landlord was not having experience to run the proposed business was also rejected by the courts below as prior experience cannot be taken as necessary to conduct a business. 9. The contention of the tenant that the landlord had other buildings in their possession so as to attract the first proviso to Section 11(3) of the Act also cannot be accepted as the courts below clearly found from the evidence on record that he did not have any room suitable for the proposed business in the same city, town or village. The said finding of the authorities below also requires no interference. RCRev.128/23 8 10. The authorities below also considered the question of the benefit of the second proviso to Section 11(3) and found that the tenants have not proved that they are depending for their livelihood mainly on the income derived from the business conducted in the petition schedule building. Likewise, there was no evidence that other suitable buildings were not available in the locality. The finding in that regard by the authorities below also cannot be said to be wrong in any manner. In the light of the discussion above, we find no merit in the revision petition and is accordingly dismissed. At this juncture, the learned counsel for the petitioners prays for a reasonable time to vacate the premises. Accordingly, we deem it appropriate to grant six months' time to the petitioners to vacate the premises subject to the following conditions:- “ (i) The revision petitioners shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition scheduled building to the petitioner-landlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition scheduled building, and further they shall conduct any business in the petition scheduled building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; ii) The revision petitioners shall deposit the damages for use and occupation, which shall be equal to the rent fixed, with entire arrears RCRev.128/23 9 on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; (iii) Needless to say, in the event of the revision petitioners failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition scheduled building will stand cancelled automatically, and the landlord will be at liberty to proceed with the execution of the order of eviction.” Sd/- ## A.K.JAYASANKARAN NAMBIAR, JUDGE **==> picture [21 x 10] intentionally omitted <==** MOHAMMED NIAS C.P., JUDGE okb/