Shikha Agarwal v. Prameela S. Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 07TH DAY OF FEBRUARY 2020 / 18TH MAGHA, 1941** ## **RCRev..No.35 OF 2020** **AGAINST THE JUDGMENT DATED 26.10.2019 IN R.C.A.NO.13/2019 OF RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM AGAINST THE ORDER DATED 30.3.2019 IN R.C.P.NO.35/2017 OF RENT CONTROL COURT, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **SHIKHA AGARWAL AGED 54 YEARS WIFE OF LATE SANJAY AGARWAL, RESIDING AT T.C.29/303(1), THIRUVATHIRA, THENGAPURA LANE, PETTAH P.O., THIRUVANANTHAPURAM, PIN-695 024.** **BY ADVS. SRI.R.RAJESH KORMATH SRI.K.D.PAUL DALIN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **PRAMEELA.S.KUMAR AGED 52 YEARS, WIFE OF S.KUMAR, II-N, HORIZON PARK, ALTHARA ROAD, VELLAYAMBALAM P.O., THIRUVANANTHAPURAM, PIN-695 024.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R.No.35/2020 2 ## **O R D E R** ## _**K.Harilal, J.**_ The revision petitioner herein is the tenant, who is confronting with an order of eviction passed against him under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') in R.C.P.No.35 of 2017 on the file of the Rent Control Court, Thiruvananthapuram and confirmed by the Appellate Authority, Thiruvananthapuram in R.C.A.No.13 of 2019. 2. The tenanted premises is a residential building. According to the respondent/landlady, her husband is working in Middle East and he has crossed 60 years of age and he is about to retire from service. Even though she owns an apartment at Vellayambalam in Thiruvananthapuram, wherein she is now residing, it is a single bed room residence not enough for the R.C.R.No.35/2020 3 accommodation of her family, especially when her husband comes back to settle in Kerala permanently. She has no other building of her own in her possession to set up an accommodation other than the tenanted premises and apartment at Vellayambalam. But several other residential buildings are available in and around Thiruvananthapuram and the revision petitioner/tenant can easily shift her residence from the tenanted premises. The revision petitioner/tenant resisted the claim for eviction contending that the need projected by the respondent/landlady herein is not bonafide and it is a ruse for eviction only. According to the tenant, she is a widow, who is running a firm, by name, Amba Automobiles at Thakaraparambu, Thiruvananthapuram and she has been residing in the tenanted building for the last six years. The flat owned by the respondent - landlady at Vellayambalam is sufficient for her requirement. There is no need to set up another residential house to accommodate her family. The R.C.R.No.35/2020 4 landlady demanded higher rate of rent for the building to which the tenant did not concede. So the intention of the landlady is to get the tenant evicted from the premises. 3. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected is bonafide, the claim for eviction is not hit by the first proviso to Section 11(3) of the Act and the revision petitioner/tenant is not entitled to get protection under the second proviso to Section 11(3) of the Act. Thus the legality of the aforesaid concurrent findings are challenged in this revision petition. 4. Heard the learned counsel for the revision petitioner. 5. The sum and substance of the arguments advanced by the learned counsel for the tenant is that the courts below have failed to consider bonafides of the need in its correct perspective. According to the learned counsel, there was no evidence to substantiate the R.C.R.No.35/2020 5 bonafides of the need projected in the Rent Control Petition and it is a ruse for eviction only. Thus, the findings on bonafide need are perverse, warranting interference of this Court. 6. Therefore, the question to be considered is whether the concurrent findings of the courts below, that the need projected is bonafide, is vitiated by perversity. 7. It is the specific case of the landlady that her husband is working abroad and he has crossed 60 years of age and he is about to retire from service. Now she is residing in a single bed room flat at Vellayambalam and the said flat is not sufficient enough to accommodate her family after the retirement of her husband when he comes back to settle at Thiruvananthapuram, permanently. In order to prove the bonafides of the need, the landlady was examined as PW1 and her husband was examined as PW3. Going by the pleadings, it could be seen that the landlady herself disclosed the ownership of the single room flat at Vellayambalam. But, according to R.C.R.No.35/2020 6 her, the said single room flat is not sufficient to accommodate her family after the retirement of her husband, when he comes to settle at Thiruvananthapuram permanently. She further stated that the petition schedule building is essentially required for the residence of the entire family. It is also specifically stated that the plinth area of the apartment at Vellayambalam is 760 sq.ft. only. Her pleadings in respect of the insufficiency of the flat at Vellayambalam stands proved and corroborated by Ext.C1 report. After examining the Commissioner as PW2, the courts below placed reliance on Ext.C1 report and found that the pleadings in respect of the bonafide need for the tenanted building, are corroborated by Ext.C1 report. The landlady has testified in terms of the need projected in the Rent Control Petition and the inconvenience of the present accommodation, in the apartment at Vellayambalam. The evidence of PW1 is further supported by the evidence of PW3, the husband of PW1. R.C.R.No.35/2020 7 8. On a reading of the judgment under challenge, we find that the courts below have concurrently observed that the revision petitioner/tenant miserably failed to discredit the evidence of PWs 1 and 3 and nothing has been brought out to disbelieve their evidence. Bonafides is a state of mind. So, cross examination of the landlord is the best test to read the mind of the landlord. Where the landlord succeeds in withstanding the cross examination and stood by the need projected in the chief examination, during the cross examination, it can be said that the landlord succeeded in establishing the bonafides of the need. In the instant case, the courts below have placed reliance on the bonafides of the need spoken by PW1 and PW3 in their evidence. We do not find any reason to take a different view, in the absence of any material to the contrary. Therefore, the courts below are justified in finding that the landlady has established the bonafides of the need. We do not find any kind of perversity in the findings on bonafide need. R.C.R.No.35/2020 8 9. The learned counsel for the revision petitioner/ tenant vehemently contended that there is no evidence to show that the husband of the landlady will come back and settle in her native place. It is not disputed that the husband of the landlady has crossed 60 years of age. According to her, her family is about to settle at Thiruvananthapuram, when her husband retires on superannuation. In the above context, the decision of this Court in **Madhavan v. Ramachandran [1970 (2) ILR Kerala 101]** has significance and relevancy. In the aforesaid decision, this Court held that the need, need not be a current need always and it can be prospective also. It is not necessary that there should be a current, urgent need. It is enough if it is reasonably and likely to arise in the near future. That apart in **Raghunath G.Panhale (dead) by LRs. v. M/s.Chaganlal Sundarji and Co. (AIR 1999 Supreme Court 3864)** , the Supreme Court held that a landlord need not lose his existing job nor resign it nor reach a level of starvation to R.C.R.No.35/2020 9 contemplate that he must get possession of his premises for establishing his business or residence. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long drawn litigation. If he resigned his job he might indeed end up in utter poverty. Jobless is not a condition precedent for seeking to get back one’s own premises. 10. In the above view, we find that even if the husband of the landlady has not lost the employment abroad, they can be desirous of having an accommodation at their native place at the fag end of their life. Therefore, the landlady is not required to produce any further evidence to show that her husband has lost his employment abroad. In the above view, we reject the contention raised by the learned counsel for the revision petitioner/tenant. No other point has been raised in this revision petition. 11. Having regard to the facts and circumstances of R.C.R.No.35/2020 10 the case, the revision petitioner is given one month’s time to vacate the tenanted premises on the following conditions: - (i) The revision petitioner 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 shop room within one month from today. - (ii) The revision petitioner 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. - (iii) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically R.C.R.No.35/2020 11 vacated and the respondent/landlady will be at liberty to proceed with the execution of the eviction order. The revision petition is dismissed. Sd/- ## **K.HARILAL, JUDGE** Sd/- **C.S.DIAS, JUDGE** **csl**