Sunny v. Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939** **RCRev..No. 106 of 2013 (A) --------------------------** **AGAINST THE JUDGMENT IN RCA 51/2003 of I ADDL. RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 9-10-2012** **AGAINST THE ORDER IN RCP 19/1998 of RENT CONTROL COURT/ I ADDL. MUNSIFF COURT,THRISSUR DATED 29-11-2002** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:-:** **--------------------------------------------** **SUNNY,** **S/O.THARAYIL LAZAR, KOTTEKKAD DESOM, KUTTUR VILLAGE, THRISSUR TALUK.** ## **BY ADV. SRI.K.S.BHARATHAN** ## **RESPONDENT/APPELLANT/PETITIONER:-:** **----------------------------------** **THOMAS,** **S/O.CHIRIYANKANDATH GEORGE, CHEMBUKKAVU VILLAGE & DESOM, THRISSUR TALUK, THRISSUR DISTRICT-680003.** **BY ADVS. SRI.T.K.VIPINDAS SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17-07-2017, ALONG WITH RCR. 232/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **OKB** K.HARILAL & P. SOMARAJAN, JJ. -------------------R.C.R. Nos.106 & 232 of 2013 -------------------Dated this the 17[th] day of July, 2017 ## O R D E R ## **Harilal, J.** These revisions are filed challenging the common judgment passed in R.C.A.Nos.50/2003 and 51/2003 on the files of the Additional Rent Control Appellate Authority, Thrissur. Hence these revisions are heard together and disposed of accordingly. 2. The revision petitioners are tenants under the common landlord. The Rent Control Petitions were filed seeking an order of eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act 1965 (for short “the Act”). According to the landlord, he needs the petition schedule building for starting a business of plastic items and stationery items. He further averred that he has no business of his own and so also other vacant buildings are available in the locality to shift the petition RCR Nos.106 & 232 of 2013 :2: schedule shop rooms. The tenants resisted the bona fide need contending that the need is not a bona fide one and the landlord has other avocation for his livelihood. He has partnership in the family business which is being conducted by the family members. According to them, no other alternative shop rooms are available in the locality to shift their business and they are mainly depending upon the income from the petition schedule shop rooms. 3. On the aforesaid rival pleadings, both parties went on trial and, after considering the evidence on record, the Rent Control Court has rejected the claim of bona fide need on three grounds. According to the Rent Control Court, the landlord is very affluent and he has other sources of income so as to eke out his livelihood. Therefore, his claim that he has no other income for his livelihood cannot be believed. Secondly, it was found that an ex parte order in R.C.P.No.8/1982 was obtained knowing very well that the petition schedule shop rooms are in possession of these tenants. Thereafter, the RCR Nos.106 & 232 of 2013 :3: respondents and other tenants of the rooms, who are the respondents in these Rent Control Petitions, filed O.S.No.539/1984 against the landlord seeking relief of injunction, preventing the petitioner from forcibly evicting them, and in that suit an interim injunction order was passed. But the landlord proceeded with the execution proceedings in RCP No.8/1982 in connivance with the respondents therein so as to obtain an order of eviction clandestinely against the present tenants. Finally, the dispute was resolved by entering into a compromise, permitting the tenants therein to continue occupation of the petition schedule building and accepting rent chit dated 29.8.1990 executed by the tenants and enhancing the rent. Thirdly, it was found that, during the period 1994 to 1996, other vacant shop rooms in the ground floor were rented out to other tenants. If the landlord had an honest and sincere desire, he could have chosen those rooms in the ground floor in the year 1996 to start the proposed business. RCR Nos.106 & 232 of 2013 :4: 4. In appeal, the appellate court reversed the aforesaid finding with the support of judicial precedents well settled by this Court and the Supreme Court. As regards the earlier litigation under RCP No.8/1982, the appellate court found that the said Rent Control Petition was filed earlier by the present landlord's father, long before the filing of the present Rent Control Petition, and it was filed under Section 11(4)(i) of the Act. In short, the earlier litigation was on a different cause of action. Therefore, the earlier litigation between the then landlord and the tenants is of no consequence at all, when considering the bona fides of the present need. As far as the claim under Section 11(3) of the Act is concerned, the state of mind on the date of petition of the landlord, who seeks eviction under Section 11(3) of the Act, is relevant and the earlier litigation that ended in a compromise before more than eight years cannot be taken as a ground to reject the present need of the landlord. In the above view, we find that the appellate court is justified in finding RCR Nos.106 & 232 of 2013 :5: that the earlier proceedings under the Act between the landlord and the tenants is of no consequence at all, when considering the bona fides of the present need. Similarly, the appellate court found that the vacant rooms in the ground floor of the building were rented out to different tenants during 1994 to 1996. 5. As we held above, the bona fide of the need has to be considered as on the date of filing of the Rent Control Petition and not before two years of the filing of the petition. Further, the court below, in the above context, relied on the decision of this Court in **Eliamma Chacko v.** **Leela Karunakaran [1999 (2) ILR Kerala 577]** wherein this Court held that when landlord has more than one building, he can choose, for his own occupation, the building more convenient to him. When applying the above proposition to the instant case, the contention, that the landlord has opted to evict the petition schedule shop rooms in the upstair portion, leaving more convenient rooms in the ground floor and that is one of the incidents of RCR Nos.106 & 232 of 2013 :6: proving oblique motive of the landlord cannot be accepted, particularly when the landlord has given cogent reasons for not preferring ground floor for starting the proposed business. That apart, we further find that the tenants have no case that in the year 1998, when the Rent Control Petition was filed, the rooms in the ground floor were remaining vacant. The tenants themselves admitted that at the time of filing the Rent Control Petition and disposal, the rooms in the ground floor were occupied by different tenants and they were doing different businesses in those rooms. Therefore, we find that, in the absence of any evidence to prove possession of other vacant rooms, the first proviso to Section 11(3) of the Act will not come into play, in the instant case. Thirdly, the Appellate Authority reversed the findings of the trial court that the landlord has suppressed the material fact that he has other avocation for his livelihood. In this context, the pleadings in the Rent Control Petition requires consideration. 6. We have meticulously gone through the Rent RCR Nos.106 & 232 of 2013 :7: Control Petition. In the Rent Control Petition, it is averred that the landlord has no business of his own for his livelihood. It is true that it has come out in evidence that the landlord has partnership in his family concern and he has an income of Rs.10,000/- per month. It is pertinent to note that there is no averment in the pleadings in the Rent Control Petition to the effect that he has no income and avocation. His specific pleading is that he has no other business of his own. Therefore, we find that, in view of the specific pleading in the Rent Control Petition, it cannot be said that the landlord has suppressed his other avocation for livelihood. It is pertinent to note that no evidence has come out to prove that he has other business of his own. In the absence of any evidence to prove that the landlord has other business of his own, we find that there is no suppression of material facts in the pleadings and the appellate court is justified in reversing the findings of the trial court. 7. Coming to the second proviso, the appellate RCR Nos.106 & 232 of 2013 :8: court, after re-appreciating the evidence on record, found that the landlord has not discharged the burden of proof under the second proviso to Section 11(3) of the Act. As regards the income of the tenants, no evidence had been adduced to prove that the tenants are depending upon the income which is being derived from the business in the petition schedule shop rooms. Similarly, no steps had been taken to prove non-availability of alternative shop rooms in the locality to shift the business from the petition schedule shop rooms. On the other hand, the landlord has taken out a commission to ascertain the availability of alternative shop rooms in the locality and the Commissioner has specifically mentioned the identity of other vacant buildings available in the locality. When the tenants were cross examined, touching the availability of vacant shop rooms mentioned in the Commission Report, they themselves admitted that they have not made sufficient enquiry so as to ascertain the availability of vacant rooms in the locality. In the above analysis, the appellate court is RCR Nos.106 & 232 of 2013 :9: justified in finding that the tenants have not discharged the burden of proof under the second proviso to Section 11(3) of the Act. We do not find any reason to interfere with the findings of the Appellate Authority. Hence these Revisions are dismissed. 8. The learned counsel for the tenants sought for some time to surrender the petition schedule shop rooms. Having regard to the entire facts and circumstances of the case, the respondents/tenants are given eight months' time from today to vacate the petition schedule shop rooms, on the following conditions: (1). The respondents/tenants shall file affidavits, 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 they will vacate the petition schedule shop rooms within eight months from today. (2). The respondents/tenants shall deposit entire arrears, if any, within one month, before the RCR Nos.106 & 232 of 2013 :10: Execution Court or the Rent Control Court, as the case may be, and shall continue to pay rent without default. (3). In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order. **Sd/-** K.HARILAL, Judge. **Sd/-** P.SOMARAJAN, Judge. okb.