Salimkumar v. P.K. Rajesh

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940** **RCRev..No. 398 of 2017** **AGAINST THE JUDGMENT IN RCA 1/2015 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE),WAYANAD DATED 18-09-2017** **AGAINST THE JUDGMENT IN RCP 24/2011 of THE RENT CONTROL COURT (MUNSIFF MAGISTRATE), SULTHAN BATHERI DATED 07-04-2014** ## **REVISION PETITIONER/S:** **SALIMKUMAR, AGED 56, S/O. KUNJU PILLAI, RAMANCHIRA VEEDU, CHETTAPPALAM P.O., PULPALLY, SULTHAN BATHERY.** **BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.N.RAJESH** ## **RESPONDENT/S:** **P.K. RAJESH, AGED 44, S/O. P.E.KESAVAN, CHETTAPPALAM HOUSE, PULPALLY POST, PULPALLY AMSOM DESOM, SULTHAN BATHERY - 673 579.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 398 of 2017 2** ## **ORDER** ## **K.HARILAL,J.** The revision petitioner is the tenant, who is confronting with the order of eviction, passed concurrently by the courts below against him 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. The petitioner filed R.C.P.No.24/2011 before the Rent Control Court, Sulthan Bathery against the respondent, seeking an order of eviction under Sections 11(2)(b) and 11(3) of the Act. The Rent Control Court allowed the claim for eviction under Section 11(3) of the Act and dismissed the claim for eviction under Section 11(2)(b) of the Act. Though, the respondent has preferred an **RCRev..No. 398 of 2017 3** appeal, the Appellate Authority also affirmed the order of eviction passed against the respondent under Section 11(3) of the Act. Thus, the legality and propriety of the aforesaid findings, whereby, the courts below granted an order of eviction under Section 11(3) of the Act are challenged in this revision petition. 3. According to the averments in the rent control petition, the petitioner is a business man, conducting a dance material show room under the name and style “Sree Dance Collections” in Thannitheruvu in a rented building; 1½ kilometres away from Pulpally town. The plaint schedule shop room belongs to him and it situated in the heart of the Pulpally town. He is in _bona fide_ need of the plaint schedule building for shifting his business from Thannitheruvu. **RCRev..No. 398 of 2017 4** He has no other buildings of his own in his possession to shift the said business from Thannitheruvu to Pulpalli. Whereas several other buildings are available in the locality for shifting the respondent's business from the tenanted premises. 4. The respondent resisted the claim for eviction contending that the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. Though, he had challenged the landlord-tenant relationship in the counter statement, subsequently, while he was examined in evidence, he admitted that he is the tenant under the petitioner and he has been paying rent at the rate of Rs.350/- per month to the petitioner. Thus, no enquiry was conducted on the basis of the admission of the respondent. However, he contended that he **RCRev..No. 398 of 2017 5** is entitled to get protection under the second proviso to Section 11(3) of the Act. Thus, he prayed for dismissal of the rent control petition. 5. After considering the evidence on record, the Rent Control Court found that the need projected in the petition is _bona fide_ and the claim for eviction is not barred by the first proviso to Section 11(3) of the Act and the respondent is not entitled to get protection under the Second proviso to Section 11(3) of the Act. 6. Heard the learned counsel for the revision petitioner/tenant. 7. The learned counsel for the revision petitioner advanced arguments highlighting the point that the courts below have failed to consider the evidence on record on _bona fides_ of the need and the first proviso to **RCRev..No. 398 of 2017 6** Section 11(3) in its correct perspective. According to him, the findings that the need projected is _bona fide_ is nothing other than perverse. 8. At the outset, being a revision, filed under Section 20 of the Act, we must remind ourselves the scope and extent of interference under the revisional jurisdiction, which is confined to the legality, propriety and regularity of the impugned order only. This Court is not inclined to re-appreciate the entire findings on record, unless the findings of the court below are perverse or vitiated by non-consideration of material facts. Here, the only argument advanced before us is that the findings are perverse. In view of the arguments, the question to be considered is whether the findings of the court below, **RCRev..No. 398 of 2017 7** whereby the order of eviction has been granted under Section 11(3)of the Act, are perverse or not. 9. The specific case of the petitioner is that now he has been conducting a show room for dance materials at Thannitheruvu; 1½ kilometres away from Pulpally town, where the plaint schedule building is situated. In order to prove the _bona fides_ of the need, he was examined as PW1. He has testified in terms of the averments in the rent control petition and nothing has been brought in cross-examination to shatter the _bona fid_ e _s_ of the need. As rightly held by the courts below that he is conducting the dance material show room in a remote area; 1½ kilometres away from the town in a rented building. It is quite natural that such a person will be desirous of shifting the said **RCRev..No. 398 of 2017 8** business to the Pulpally town, where he has his own building. Town is always desirable for such business rather than villages. The Rent Control Court has tested the _bona fides_ of the need with the arm “chair theory” propounded by the Hon'ble Supreme Court in _**Shiv Sarup Gupta**_ v. _**Mahesh Chand Gupta**_ _**[1999(6)SCC 222]**_ and held that the need projected in the petition is an outcome of his sincere and honest desire. We do not find any reason to doubt the said observation of the court below in the absence of any material to the contrary. 10. Coming to the first proviso, in the counter statement, the respondent has not pointed out any other vacant building in the possession of the petitioner. But in trial, he contended that one room in the first floor is lying vacant; but he himself **RCRev..No. 398 of 2017 9** subsequently admitted that the first floor was constructed after the filing of the rent control petition. As rightly held by this Court in _**Eliamma Chacko**_ v. _**Leela Karunakaran**_ _**[1999 (2) KLT 174]**_ generally, the relevant date for determining the availability of alternative accommodation for the petitioner is the date of filing of the petition. So, the subsequent construction of one room is of no consequence at all. 11. That apart, when the petitioner was examined in evidence, he has given sufficient reason for not occupying the said room as show room for dancing dress materials. According to him, that room is also required for washing and storing of cloths. The dancing dresses are being given for rent also. So, a room for washing and storing is also required for his business. **RCRev..No. 398 of 2017 10** The courts below have concurrently found that he has succeeded in giving special reason for not occupying the room in the first floor for using as a show room. Thus, the courts below are justified in finding that the claim for eviction is not hit by first proviso to Section 11(3) of the Act. No other point has been raised before us in the revision petition. 12. In the above view, we find that there is no illegality or impropriety in any of the findngs whereby the courts below have concurrently granted an order of eviction under Section 11(3) of the Act. The learned counsel for the revision petitioner prayed for one year time to vacate the tenanted premise. Having regard to the facts and circumstances of the case, the revision petitioner is given eight **RCRev..No. 398 of 2017 11** months' time to vacate the tenanted premises 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 shp room within eight 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 respondent/landlord will be at liberty to proceed with the execution of the eviction order. **RCRev..No. 398 of 2017 12** Hence the revision petition fails and accordingly dismissed. **SD/K.HARILAL JUDGE SD/ANNIE JOHN JUDGE** SB