Sarojam v. Beena Roy

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE EASWARAN S. ``` ``` THURSDAY, THE 11[TH] DAY OF JULY 2024 / 20TH ASHADHA, 1946 ``` ``` RCREV. NO. 31 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 28.10.2021 IN RCA NO.18 OF 2019 OF ADDITIONAL DISTRICT COURT - IV, THIRUVANANTHAPURAM ARISING OUT OF THE ORDER/JUDGMENT DATED 4.6.2019 IN RC(OP)NO.1 OF 2016 OF RENT CONTROL COURT, THIRUVANANTHAPURAM ``` ## _`REVISION PETITIONER/APPELLABNT/PETITIONER:`_ ``` SAROJAM AGED 57 YEARS D/O RAGHAVAN, CHITHIRA, TEACHERS COLONY, SREENIVASAPURAM , VARKALA, THIRUVANANTHAPURAM-695 141 ``` ``` BY ADVS. M.R.ANANDAKUTTAN M.A.ZOHRA MAHESH ANANDAKUTTAN SHREEJI R. NAIR ``` ## _`RESPONDENT/RESPONDENT/COUNTER PETITIONER:`_ ``` BEENA ROY W/O SHAJI, SHEBIN LAND, SREENIVASAPURAM DESOM, CHEMARUTHY VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM-695 141 ``` ``` BY ADV R.S.KALKURA ``` ``` THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON ``` ``` 11.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RCREV. NO. 31 OF 2022 ``` ``` 2 ``` ## **ORDER** ## **Amit Rawal, J.** 1. The present petition is directed against the findings of the Appellate Authority rendered in R.C.A.No.18/2019 dated 28.10.2021 whereby the findings of the Rent Controller in R.C.(OP)No.1/2016 dated 4.6.2019 has been affirmed by invoking second proviso to sub-section 3 of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965. 2. Petitioner – landlord instituted a rent petition seeking eviction of the respondent – tenant on the ground of arrears of rent, bonafide need and causing destruction to the building. Respondent was inducted as a tenant in 1999 and in 2014, attorned the petitioner – landlord, after having acquired the property at the rate of Rs.1,000/- (Rupees one thousand only) per month. Landlord is a widow, having no job of income and intended to start a fancy store in the demised premises. On 29.12.2014 and 4.07.2015 notices ``` RCREV. NO. 31 OF 2022 ``` ``` 3 ``` were sent seeking eviction. It was also alleged that the respondent - tenant has another shop room bearing No. CPXVI/506 situated 1km away. 3. The respondent – tenant contested the petition by raising the objection of maintainability and also on the ground that there was no suitable building in the area where tenant can shift the business much less solely dependent on the income from the petition schedule building and in case eviction is ordered, there will be hardship. It was also alleged that petitioner/landlord and her son had been causing obstruction in smooth functioning of their business, was impelled to institute O.S.No.184/2014 qua forcible dispossession. Rent was offered but the landlord refused to accept the same. 4. Since the parties were at variance the learned rent controller framed the following issues: 1. Is this petition maintainable? 2. Is the petitioner bona fide purchaser of the ``` RCREV. NO. 31 OF 2022 ``` ``` 4 ``` petition schedule shop room? 3. Is the petitioner able to show the bona fide deed for getting an order of eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act ? 4. What is the order as to costs? 5. Petitioner – landlord examined himself as PW1 and brought on record Exts.A1 to A9 and X1. Besides herself, she examined three more witnesses PW2, PW3 and PW4. On the other hand, respondent – tenant examined himself as DW1 and other three witnesses DW2, DW3 and DW4 and brought on record Ext.B1 to B4; B5; B5(a); B6 to B19 and X2 to X2(c). Learned Rent Controller on examination of the evidences, found that there was no bonafides in the claim and declined the eviction. The aforementioned order was assailed before the Appellate Authority vide RCA No.18/2019 by petitioner-landlord. Ground of personal necessity was upheld but rejected eviction by invoking second proviso to ``` RCREV. NO. 31 OF 2022 ``` ``` 5 ``` sub section 3 of section 11 of the Act as the respondent – tenant was able to discharge the onus with regard to non availability of suitable accommodation on rent in an adjoining area and dismissed the appeal. 6. Learned counsel appearing on behalf of the petitioner - landlord in support of the grounds of revision petition, has raised the following submissions: I. The findings of the Learned Appellate Authority are fallacious for the reason that tenant failed to take the assistance of an Advocate Commissioner for pressing the second proviso to section 11(3). In absence of the same, the burden remained undischarged and therefore, the landlord was not required to lead any evidence in rebuttal. II. There is no denial to the fact that the husband of the respondent – tenant is doing a business near the SN College Junction, therefore, the second proviso could not have been brought into force. III. The second proviso could have only been brought ``` RCREV. NO. 31 OF 2022 ``` ``` 6 ``` into force, had the landlord been not able to comply with the first proviso. Bonafide need has to be examined from the angle of the landlord and not from the tenant. In other words, tenant cannot dictate the terms to the landlord. Filing of the suit was just a ploy to delay the adjudication of rent petition and create an evidence in favor of the tenant. If all these factors had been looked in cumulatively, appeal would not have been dismissed, thus there is an abdication. 7. On the other hand, learned counsel appearing on behalf of the respondent – tenant referred to the findings rendered in paragraph Nos.31 to 35 of the Appellate Authority whereby in unequivocal terms, second proviso to sub section 3 of section 11 has been pressed into service. Respondent – tenant not only in examination in chief but in the written statement/objection categorically stated the nonavailability of the building in the adjacent areas but in fact, was totally dependent on the income from petition schedule building. In other words, income derived by the husband was ``` RCREV. NO. 31 OF 2022 ``` ``` 7 ``` an additional to meet out the day to day expenses. 8. Petitioner–landlord failed to put any question during cross examination. The onus to prove the second proviso heavily lied upon the respondent–tenant, was discharged, thereafter, the landlord was required to lead the evidence in rebuttal. In the absence of the same, the Appellate Authority being the last court of fact and law, on examination of the evidence, dismissed the appeal. 9. We have heard the learned counsel for the parties and appraised the paper book. 10. Sub-section 3 of Section 11 of the Act reads as under: **“Section 11(3)** A landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special ``` RCREV. NO. 31 OF 2022 ``` ``` 8 ``` reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available m the locality for such person to carry on such trade or business. Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument; Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put m possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.” 11. Four eventualities have been envisaged by incorporating the provisos. The second proviso protects the tenant from eviction in case the tenant is able to bring on record the direct or cogent evidence to prove that despite concerted efforts, cannot be shifted to another building situated in the vicinity. ``` RCREV. NO. 31 OF 2022 ``` ``` 9 ``` 12. The tenor and mode of the cross examination do not leave any doubt in our mind that landlord failed to elicit any evidence in her favor to overcome the objection of the second proviso which was categorically pleaded as stated above. Paragraph Nos.32 to 35 of the Appellate Authority is also relevant. The same reads as under: 32. But there were clear pleadings in the respondent's objection, in Paragraph No.6 that there were no other suitable convenient building in the locality to shift the business of the respondent and in case she had to shift the business, it will cause financial burden and that she was indebted to several banks. She also admitted during cross examination that she was ready to vacate the premises if suitable building is available 33. Even though during cross examination DW4 stated that the respondent and her husband had a building and it was not let out, it was not brought out in cross examination that the building, if any, belong to the respondent was a shop room suitable for conducting the respondent's business. The non availability of suitable building was also deposed in Paragraph 4 of the chief affidavit of DW4. But that aspect was not specifically challenged during cross examination of DW4. 34. In order to get the benefit of second proviso, the tenant has to establish that she is depending for her ``` RCREV. NO. 31 OF 2022 ``` ``` 10 ``` livelihood mainly on the income derived from any trade or business carried on in the petition schedule building and there is no other suitable building available in the locality. It is the settled position that the burden is on the tenant to prove that she is entitled to get benefit of both the limbs of second proviso to Sec.11(3) and the landlord is not bound to plead that the tenant is not entitled to the benefit of the second proviso and it is sufficient if the contentions of tenant are suitably met by the landlord during evidence as laid down in **Kurian.K.Kuriakose v. Usha Cheriyan** reported in **2008** ## **(1) KLT 739** 35. No building was pointed out to DW1, during cross examination as a suitable building to shift her business. There was also no cross examination with respect to the averment in Paragraph 6 of the chief affidavit of DW1 and in the chief affidavit of DW4 regarding the non availability of suitable building in the locality. That particular fact is not challenged during cross examination and it amounts to admission. Ext.A8 clearly reveal that the tenant is not in occupation of another building as claimed by PW1. As such, by assessing the evidence adduced by both sides, it can only be concluded that the tenant has succeeded in establishing the benefit of the second limb of the second proviso to Sec.11(3).” 13. The aforementioned findings in our considered view are based upon the appreciation of both oral and documentary evidence. Tenant had been very fair and honest ``` RCREV. NO. 31 OF 2022 ``` ``` 11 ``` in the pleading by explaining that the business carried on by her husband in a different building was a contributory factor to run the family, but not a profitable business as the footfall of customer to the shop was very less. Landlord also failed to plead that the tenant had suitable building available in the locality in case the eviction is ordered. Once the aforementioned onus was discharged by the respondenttenant, landlord was enjoined upon an obligation to rebut the same either by taking the assistance of an Advocate Commissioner or through the testimony of other witnesses in the area to overcome the aforementioned objection. Having failed to do so, we are of the view that findings of the fact and law arrived at by both the courts below do not require any different interpretation in the absence of any illegality and perversity. 14. Learned counsel for the landlord says that respondent-tenant has not paid the rent from May 2014. Since there is no evidence on record, we leave it to the ``` RCREV. NO. 31 OF 2022 ``` ``` 12 ``` petitioner – landlord to give the details of the arrears of rent to the respondent – tenant and on tallying the aforementioned accounts, the respondent – tenant if not able to show the proof, will be liable to pay or, of a different period in case of any proof. In the absence of any dispute regarding the arrears, the landlord will be at liberty to claim arrears in accordance with law. No ground for interference is made out. R.C.Rev. stands dismissed. Sd/- **AMIT RAWAL** **JUDGE** Sd/- **EASWARAN S. JUDGE** nak