High Court of KeralaDivision Bench2012-01-02Revision petition dismissed; eviction order sus...

SREEKUMARAN V., K.GANGADHARAN & ANEESH v. M.B.AYISU, SUHARA, RASIYA, SHINARA & MUNEER

Case / Petition Number:RCR No. 451/2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C.Kuriakose
C.K.Abdul Rehim
Judgment Date: 2012-01-02
Court Decision / Holding: The revision petition is dismissed; the eviction order passed by the Rent Control Court and affirmed by the Rent Control Appellate Authority is upheld. The High Court declined to interfere with the concurrent findings, confirming that the landladies’ need is bona fide and that the tenants failed to demonstrate entitlement under the second proviso to Section 11(3) of the Kerala Rent Control Act, 1965.
Final Disposition: Revision petition dismissed; eviction order sustained against the tenants.

Parties to the Case

Appellants / Petitioners

Sreekumaran V.
K. Gangadharan
Aneesh

Respondents

M.B.Ayisu, W/o. Late Ibrahim Haji
Suhara, D/o. DO.
Rasiya, D/o. DO.
Shinara, D/o. DO.
Muneer, S/o. DO., represented by his mother M.B. Ayisu

Legal Representation & Advocates

Counsels for Petitioners

• P.B. Krishnan
• Geetha P. Menon
• (Advocates)

Case Synopsis & Summary

This Kerala High Court revision arises from a Rent Control dispute (RCR No. 451/2011) where tenants (Sreekumaran V., K. Gangadharan, and Aneesh) challenge eviction orders under Section 11(3) of the Kerala Rent Control Act, 1965, confirmed by the Rent Control Appellate Authority and the Rent Control Court. The landladies sought eviction to carry on a readymade garments business in the petitioned premises and an adjoining room, arguing a bona fide need. The tenants counter that the landladies’ need is not bona fide, note that the landladies’ husbands are wealthy, and contend the landladies are pardanashin who would not operate a business; they pressed objections under the first proviso and questioned applicability of the second proviso to Section 11(3), citing a second room on the second floor and the finality of an allied eviction proceeding (RCP 11/2008). The Rent Control Court accepted PW1’s oral testimony. The Appellate Authority affirmed. On revision, the High Court, examining the evidentiary record and the concurrent findings, held that the need was bona fide and that the tenants failed to establish the tenants’ burden under the provisos. The court concluded there was no basis to interfere via its revisional jurisdiction, and the revision petition was dismissed with the eviction order sustained.

Provisions of Law Cited

Section 11(3) of Act 2 of 1965First proviso to Section 11(3)Second proviso to Section 11(3)Section 20 of Act 2 of 1965

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioners submit that the landladies’ claimed need to conduct a business in readymade garments within the petitioned premises and the adjacent room is not bona fide. They argue that the landladies’ husbands are well-placed businessmen and therefore the landladies do not require personal occupancy for their own business. They contend that the two provisos to Section 11(3) have not been satisfied by the landlords and highlight that the tenants are not shown to be in need of protection under the second proviso. They point to the fact that one room is available on the building’s second floor, which could result in special reasons for eviction; they further contend that the eviction order in RCP 11/2008 has become final, yet the statutory authorities’ conclusions were improperly relied upon and PW1’s testimony should not supplant solid documentary evidence. They urge the Revisional Court to re-appraise the evidence and set aside the eviction.

Contentions of Respondents

The landladies contend that their need to carry on a business in the petitioned premises and an adjoining room is genuine and bona fide. They argue that the premises are appropriate for the business of readymade garments and that the tenants have failed to establish the first or second provises to Section 11(3). They rely on the credibility of PW1’s testimony and the concurrent findings of the Rent Control Court and Appellate Authority which concluded that the need was bona fide and that the tenant’s burden under the second proviso was not satisfied. They emphasize that the eviction is not a mere pretext and that the linked eviction action (RCP 11/2008) has already attained finality."},

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Francis v. Sreedevi Varassiar	2003 (2) KLT 230	Positive	Used by the court to support the proposition that the burden to prove the two limbs of the second proviso rests on the tenant; the court treats this authority as trite and applicable.
Kunhamma v. Akkali Purushothaman	2007 (3) KLT SC	Positive	Cited to reinforce the tenant’s burden under the second proviso; the court relies on it as supportive authority.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM MONDAY, THE 2ND DAY OF JANUARY 2012/12TH POUSHA 1933 RCR.No. 451 of 2011 ( ) ======================= RCA.13/2009 of RENT CONTROL APPELLATE AUTHORITY ,KASARAGOD RCP.10/2008 of RENT CONTROL COURT, HOSDRUG REVISION PETITIONER(S)/APPELLANTS IN RCA/RSPONDENTS IN RCP ====================== 1. SREEKUMARAN V. - S/O. K.P.KRISHNA MANIYANI, RESIDING AT NITTADUKKAM, KARATVAYAL, HOSDURG VILLAGE, HOSDURG TALUK, P.O. KANHANGAD,KASARAGOD DISTRICT. 2. K.GANGADHARAN, - S/O. KANNAN, NURSING ASSISTANT, PADMA POLY CLINIC, NORTH KOTTACHERY, BALLA VILLAGE, P.O. KANHANGAD, KASARAGOD DISTRICT. 3. ANEESH, S/O. GANGADHARAN, BUSINESS AT NEW KERALA BUILDING, NORTH KOTTACHERY, BALLA VILLAGE, HOSDURG TALUK,P.O. KANHANGAD, KASARAGOD DISTRICT. - BY ADV.SRI.P.B.KRISHNAN - SMT.GEETHA P.MENON RESPONDENT(S)/RESPONDENTS IN RCR -RESPONDENTS IN RCA/ PETITIONER IN RCP 1. M.B.AYISU, W/O. LATE IBRAHIM HAJI, RESIDING AT RAHMANIYA MANZIL, B.ROAD, HOSDURG, HOSDURG VILLAGE, HSDURG TALUK, P.O.KANHANGAD, KASARAGOD DISTRICT, PIN-671 315 2. SUHARA, D/O. DO. RESIDING IN DO. DO. 3. RASIYA, D/O. DO. IN DO. DO. 4. SHINARA, D/O. DO. IN DO. DO. ## 5. MUNEER, S/O. DO. IN DO., REPRESENTED BY HIS NEXT FRIEND GUARDIAN MOTHER, M.B. AYISU. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: despite ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------R.C.R. NO. 451 OF 2011 ------------------------** Dated this the 2nd day of January, 2012 ## **O R D E R** ## Pius C.Kuriakose, J. Under challenge in this revision is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed concurrently by the Rent Control Court and the Appellate Authority under Section 11 (3) of Act 2 of 1965. 2. The need projected by the landladies was that they need to conduct business in readymade garments in the petition schedule building as well as in the adjacent room which was also subject matter of another rent control petition invoking the same ground. The objection mainly raised by the revision petitioners/tenants was that the need projected by the landladies is not bona fide and that the landladies' husbands are well placed business men and hence the landladies are not in bona fide need for doing any business by themselves and that the landladies are pardanashin women who will not conduct any RCR No. 451 /2011 2 business. It was also contended that the rent control petition was liable to fail by virtue of the first proviso to sub section (3) of Section 11. At trial by the Rent Control Court one of the landladies got herself examined as PW1. Even though counter oral evidence was adduced by the tenants, the Rent Control Court was very much inspired by the oral evidence given by PW1 and accepted her evidence. It was held that the need is bona fide and it was also held that the tenants were unsuccessful in showing that they are entitled for the protection of the second proviso to sub section (3) of Section 11. Contentions based on the first proviso were also repelled. Accordingly, the order of eviction was passed. 3. The revision petitioners carried the matter in appeal before the Rent Control Appellate Authority. That authority made a reappraisal of the evidence, however concurred with all the findings of the Rent Control Court. Accordingly, the appeal was dismissed. 4. In this revision various grounds are raised challenging the judgment of the Appellate Authority. Sri.P.B.Krishnan learned counsel for the petitioners addressed arguments before RCR No. 451 /2011 3 us based on all those grounds. The learned counsel submitted that appreciation of the evidence of PW1 by the statutory authorities was not at all proper. It is absolutely unnecessary for the landladies to start business as their husbands are very big business men and do not require any additional income through any business carried out by their wives. Mr.Krishan lastly submitted that it has come out in evidence that in the second floor of the very same building at least one room is available under the vacant possession of the landladies. According to the learned counsel, it is absolutely necessary that special reasons are shown by the landladies as to why they are insisting on getting possession of the petition schedule room. However, Mr.Krishnan would concede that the eviction order passed by the statutory authorities in respect of the building which is subject matter of RCP No.11/2008 which was tried along with the present rent control petition has become final. 5. We have given our anxious consideration to all the submissions addressed by Mr.Krishnan. We have gone through the judgment of the Appellate Authority as well as the order of the Rent Control Court. The only question, which arises for RCR No. 451 /2011 4 decision by us, is whether there is warrant for interfering with the judgment of the Appellate Authority under the revisional jurisdiction of this court under Section 20 of Act 2 of 1965. According to us, the above question can be answered only in the negative. A reading of the judgment of the Appellate Authority as well as the order of the Rent Control Court shows that both the statutory authorities were very much impressed by the oral evidence that was given by PW1. Thus, the findings entered by them that the need is bona fide, is a finding founded on evidence available on record. The above finding is a reasonable finding, according to us. Despite the contention that the landladies are pardanashin women and one of the landladies mounted the witness box and testified to the need commonly harboured in the mind of all the landlords. When that evidence was accepted, it will be beyond the revisional powers of this court to substitute that finding by our own finding. It is trite by the judgment of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230) and Kunhamma v. Akkali Purushothaman (2007 (3) KLT SC) that the burden to show that the tenant satisfies the two limbs of the second proviso is on the tenant. According to us, RCR No. 451 /2011 5 the findings concurrently entered by the Rent Control Court and the Appellate Authority that the tenants were unsuccessful in discharging that burden is a correct finding again founded on evidence available on record. We are not impressed by the submission of Mr.Krishnan that the availability of the room in the second floor of the building warrants establishment of special reason by the landladies. At the same time, the last submission of Mr.Krishnan that possibility of the landladies being willing to let out that room to the revision petitioners/tenants should be explored, has some appeal. ## 6. The result of the above discussion is as follows; The revision fails. The eviction order passed by the Appellate Authority is confirmed and the revision petition is dismissed. ## **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM, JUDGE.** dpk RCR No. 451 /2011 6