Sebastian @ Baby v. Sumathy, Rakhi, Tino, and Sreejith and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 4TH DAY OF JULY 2013/13TH ASHADHA, 1935** **RCRev..No. 240 of 2013 () --------------------------** **AGAINST THE JUDGMENT IN RCA 26/2011 of RENT CONTROL APPELLATE AUTHORITY (DIST COURT, ALAPPUZHA) DATED 27-02-2013** **AGAINST THE JUDGMENT IN RCP 11/2010 of RENT CONTROL COURT (PRL.MUNSIFF COURT, CHERTHALA) DATED 23-02-2011** **-------------** ## **REVISION PETITIONER/APPELLANT/COUNTER PETITIONER:** **-------------------------------------------------** **SEBASTIAN @ BABY** **S/O.VARKEY, THUMBAYIL, K.R PURAM P.O., PALLIPURAM MURI CHERTHALA, ALAPPUZHA** **BY ADVS.SRI.BECHU KURIAN THOMAS** **SRI.PAUL JACOB (P) SRI.ENOCH DAVID SIMON JOEL SMT.TINA ALEX THOMAS SRI.S.SREEDEV SRI.RONY JOSE SRI.JOHAN JUDE ISSAC** **RESPONDENTS/RESPONDENTS/PETITIONERS:** **------------------------------------** ## **1. SUMATHY** **W/O.VISWANATHAN, MEDAYIL FROM KURAPARAMBIL CHERTHALA P.O, CHERTHALA NORTH VILLAGE ALAPPUZHA 691 010** ## **2. RAKHI** **D/O.VISWANATHAN, MEDAYIL FROM KURAPARAMBIL CHERTHALA P.O, CHERTHALA NORTH VILLAGE ALAPPUZHA 691 010** **3. TINO, D/O./VISWANATHAN, MEDAYIL FROM KURAPARAMBIL CHERTHALA P.O, CHERTHALA NORTH VILLAGE ALAPPUZHA 691 010** **VK** **RCRev..No. 240 of 2013 () --------------------------** **4. SREEJITH, S/O.VISWANATHAN, MEDAYIL FROM KURAPARAMBIL CHERTHALA P.O, CHERTHALA NORTH VILLAGE ALAPPUZHA 691 010** **R1 TO 4 BY ADV.SRI.T.M.ABDUL LATHEEF SRI.A.MOHAMED RASHEED SRI.A.ABDUL LATHEEF SRI.K.ASHOK SARAN BY ADV. SRI.JOBY CYRIAC ,CAVEATOR** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VK** ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R.No. 240 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 4TH DAY OF JULY, 2013** ## **O R D E R** ## Ramachandran Nair, J. The tenant who is conducting an automobile spare parts shop in the petition schedule building, is aggrieved by the concurrent orders passed by the authorities below against him. 2. The eviction petition was filed by the legal heirs of the original landlord under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act'), for the _bona fide_ occupation of the fourth petitioner son to start a readymade business. The father is no more and the fourth petitioner is the only male issue. The other petitioners are the mother and sisters. It was averred that he is a jobless person and hence the room is required for starting a readymade shop. 3. The tenant raised various objections, including the one that the petition schedule room is one among the 13 rooms in a three storied building and the fourth petitioner is not having any capacity or ability to RCR No.240/2013 -2- conduct any business of his own. It was also contended that the tenant is depending upon for his livelihood the income from the business in the petition schedule building. 4. Evidence was let in by both sides. The Rent Control Court considered the matter in detail and accepted the plea of the respondents that the _bona fide_ need pleaded is genuine. On the two limbs of the second proviso to Section 11(3) of the Act also, the findings are against the tenant. It was also found that the tenant is having certain other business also in his own building and he has got landed properties. The Appellate Authority concurred with the findings of the Rent Control Court. 5. Learned counsel for the petitioner mainly raised three contentions: (i) That the fourth petitioner before the Rent Control Court has not been examined and the sister alone has been examined and therefore the plea could not have been sustained. He relied upon the decision of a **Division** **Bench of this Court in Thomas John v. Kochammini Amma** (1994 (2) KLT 571) in that context; (ii) It was contended that before the filing of the Rent Control Petition, the respondents herein have given on rent two rooms; RCR No.240/2013 -3- and (iii) It was pointed out that the present eviction petition is only an off shoot of a criminal case happened to be filed by the tenant against the father of the respondents 2 to 3 alleging offence under Section 138 of the Negotiable Instruments Act. Ext.B9 is the judgment of the criminal court produced in support of the above contention. It is also contended that after the disposal of the appeal, the respondents have obtained vacant possession of two rooms in the same building. 6. Learned counsel appearing for the respondents submitted that there is no merit in the above contentions. It is submitted that the sister, who is also a petitioner is competent to swear on behalf of her brother as all of them are co-owners. It is submitted that the filing of the criminal case has nothing to do with the present need of the respondents. The fourth petitioner in the Rent Control Petition alone is the male child in the family and he has no other avocations and they are having only the rental income from the building for their livelihood. It is submitted that the running of a business is the dire need as far as the respondents are concerned. RCR No.240/2013 -4- 7. With regard to the availability of two vacant rooms in the same building as of now, it is submitted that the petition schedule room is in the ground floor and the rooms that have become vacant, are in the upper floor and therefore for doing a textile business the suitable room is one that is in the ground floor. It is stated that all these were explained by P.W.1 in her evidence also. 8. We have considered the rival contentions. The eviction petition is filed by four petitioners who are the respondents herein. The mother is the first petitioner, the sisters are respectively petitioners 2 and 3 and the fourth petitioner is the brother. It is not the law that the person for whose _bona fide_ need, the eviction petition has been filed, should invariably be examined in support of the plea. The court will have to assess various materials as well as evidence adduced by the parties concerned. We have read through the judgment relied upon by the learned counsel for the petitioner, viz. **Thomas John's case** (1994 (2) KLT 571). That was a case where none of the four petitioners for whose _bona fide_ need eviction was sought, was examined and their father was examined. RCR No.240/2013 -5- 9. Herein, the definite contention of the tenant in the objection appeared to be that the fourth petitioner is not having any capacity to do business. He is a bachelor aged 32 and is the only male member in the family. The requirement is for the family also. It is a case where the plea of the landlords is that the fourth petitioner is not having any other avocation in life or is having sufficient income to lead a normal life. Going by the evidence of P.W.1, except the rental income they have no other source of income. Even though it is contended by the learned counsel for the petitioner that the mother-respondent No.1 is having lot of other buildings and landed properties, which is not proved, the fact that the fourth petitioner is not having any avocation in life, will loom large while assessing the _bona fide_ need. The Rent Control Court, found that the tenant in his deposition in cross-examination admitted that the fourth petitioner's avocation is only collection of rent. The others also have no other employment. Hence the need projected was found in their favour. The Appellate Authority concurred with the said view. Therefore, we reject the said contention. RCR No.240/2013 -6- 10. The next aspect is concerning the lack of _bona fides_ . What is argued by the learned counsel for the petitioner is that the present eviction petition is filed as a retaliation for filing a criminal case against the father of the landlords by the tenant herein. We find from the judgment in the criminal case Ext.B9 that the same is dated 3.8.2006. The original landlord, viz. the husband of the first respondent and father of respondents 2 to 4 was the accused therein. The Rent Control Petition is filed in the year 2010. Apart from the same, merely because the tenant had occasion to file a criminal case against the father of respondents 2 to 4, it cannot be said that this Court can hold that the _bona fide_ need is lacking for that sole reason. We have already noticed that the fourth petitioner is not having any specific avocation in life. The test of _bona fides_ will be whether the eviction petition is filed as a ruse to evict the tenant for ulterior motives. The crucial aspect is whether he is having any avocation in life and his family is having substantial source of income. This was found in favour of the landlords. In that view of the matter, the filing of the criminal case cannot be said to be a factor which has a vitiating effect on the _bona fide_ need. RCR No.240/2013 -7- 11. As far as the issue whether the landlords have given on rent two rooms before the filing of the eviction petition is concerned, we find that the tenant has not raised any such plea in the counter statement. In fact, the attempt of the tenant in the objection was to contend that the landlords are having various sources of income. Therefore, the specific objection about any vacant room with the respondents was not raised in the counter statement. We fail to understand how the said objection can be taken at the stage of revision. Of course, the sister of the fourth petitioner admitted that in the year 2009 two rooms have been let out after reconstruction of the building. There is no evidence as regards the area of the two rooms and other factors. The tenant has not taken out any commission also to prove otherwise. Hence, we do not find any reason to accept the above contention also. With regard to the rooms got vacated after the disposal of the appeal, learned counsel for the respondents explained that the said rooms are in the upper floor and not in the ground floor. What the landlords require is a room in the ground floor. Therefore, the subsequent event has not eclipsed the need projected by the respondents. RCR No.240/2013 -8- 12. As we have already noticed, there is no evidence to show that the respondents are having various other items of business and are having landed properties, buildings, etc. The courts have rightly found that the tenant is not entitled for the benefit of the two limbs of the second proviso to Section 11(3) of the Act. It is in evidence that the petitioner is having business in other items in his own buildings nearby. He is the owner of a two storied building. Accordingly, we dismiss the revision petition upholding the orders passed by the authorities below. 13. Learned counsel for the petitioner at this stage sought for a larger time to vacate the premises. The rent being paid is Rs.400/- per month, which is hereby confirmed. We grant time upto 31.1.2014 for the tenant to vacate the petition schedule premises on the following conditions: i) The entire arrears of rent as on today will be paid within one month and receipt will be produced before the Execution Court. ii) An affidavit will be filed by the petitioner before the Execution Court within one month from today, undertaking to vacate the premises within the time stipulated by this Court. RCR No.240/2013 -9- iii) The petitioner will continue to pay at the same monthly rate for the use and occupation of the building till vacant peaceful possession is handed over to the respondents; If the above conditions are not satisfied, the petitioner will not get the benefit of this order. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(A.V. RAMAKRISHNA PILLAI, JUDGE)** **kav/**