T A Rajula v. T Manoj

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938 RCRev..No. 104 of 2016 () -------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 9/2012 of RENT CONTRL APPELLATE AUTHORITY,MAVELIKKARA DATED 19-10-2015 AGAINST THE ORDER/JUDGMENT IN RCP 2/2010 of RENT CONTROL COURT, KAYAMKULAM DATED 29-09-2012 REVISION PETITIONER(S)/APPELLANT/RESPONDENT : -------------------------------------------- T.A RAJULA W/O. BASHEER, RESIDING AT TAK MANZIL, KAYAMKULAM MURI, FROM FATHIMA MANZIL, CHERAVALLY MURI, KAYAMKULAM VILLAGE. BY ADVS. SRI.SERGI JOSEPH THOMAS SRI.RENJIT GEORGE RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------ T MANOJ S/O. THULASIDAS, THOTTUKADAVIL, THULASEE NILAYATH, KAYAMKULAM MURI, KAYAMKULAM VILLAGE FROM THULASEE NILAYAM, PERINGALA MURI, KAYAMKULAM VILLAGE-691 009. R1 BY ADV. SRI..RINNY STEPHEN CHAMAPARAMPIL (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N. Ravindran &** ## **K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.104 of 2016 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] March, 2016** ## **O R D E R** ## **K. Ramakrishnan, J.** The tenant/respondent in R.C.P.No.2 of 2010 on the file of the Rent Control Court, Kayamkulam is the revision petitioner herein. The landlord/respondent herein filed the rent control petition on the grounds of arrears of rent and bonafide need under sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. The case of the landlord in the petition was that the petition schedule building belongs to him by virtue of settlement deed No.1836 of 2007 of S.R.O., Kayamkulam. The petitioner and the respondent entered into a rental agreement whereby the petition schedule building was let out to the respondent for 11 months for a monthly rent of Rs.900/-. The respondent is conducting a grocery business in the petition schedule building. The landlord is conducting business in a rented premises and the landlord of that building wants the petitioner to vacate the premises where he is conducting business. So, he wants to shift his business to the petition schedule building. He bonafide requires the petition schedule building for his own occupation to shift his business. He is paying rent RCR 104/206 2 at Rs.1,800/- per month for the rented premises where he is conducting the business. Though the landlord wanted the tenant to vacate the premises, since the respondent failed to vacate the premises, he had sent a notice terminating the tenancy arrangement and asking the tenant to vacate the petition schedule building after clearing arrears of rent. But she had not surrendered the building. So, the petitioner had no other option but to file an application for eviction under sections 11(2)(b) and 11(3) of the Act. 2. The respondent/tenant entered appearance and filed objection contending that the petition is not maintainable. The petition schedule building belonged to Haji Hassan Yakoob Sait of Bunglow, Kayamkulam. From him, one Kassaim Pillai took the petition schedule building on rent. Kassim Pillai and his son Ibrahim Kutty were conducting business in onion in the petition schedule shop room. After the death of Kassim Pillai, Ibrahim Kutty carried on with the business before 1[st] April, 1940. Kassim Pillai fell ill and in continuation Ibrahim Kutty continued with the business. The mother of the petitioner got title over the property wherein the petition schedule building is situated. The respondent is conducting business in the petition schedule building in continuation of the business conducted by Kassim Pillai, his grandfather and then by Ibrahim Kutty, his son and so she is RCR 104/206 3 entitled to get the protection of section 11(17) of the Act. The allegation that the tenant is conducting business in the petition schedule building only from 16.8.2008 is not correct. The rental agreement was entered into with the petitioner only because she believed that he is having title but he has no title to the property. There is no landlord-tenant relationship. There is no rent in arrears. He had evaded accepting the rent and that was the reason why rent fell in arrears. The petitioner is conducting business in the shop room belonging to Adv. G. John in a profitable manner. That building is a modern building and there is no possibility for the petitioner to shift his business to the petition schedule building which is an old one. If she surrenders the petition schedule building, it will affect her goodwill and cause hardship in collecting the amounts due to her from her customers. The aim of the petitioner is to sell the petition schedule building after evicting the respondent. So, the petitioner is not entitled to get any eviction under sections 11(2)(b) and 11(3) of the Act. She prayed for dismissal of the application. 3. PWs.1 and 2 were examined on the side of the landlord and Exts.A1 to A10 were marked. Exts.C1 and C1(a) and Ext.X1 were also marked on the side of the landlord. DWs.1 and 2 were examined on the side of the tenant and no documents were marked on her side. RCR 104/206 4 4. After considering the evidence on record, the rent control court found that there is no rent in arrears as the tenant had remitted arrears of rent and the need alleged is bonafide. The tenant is not entitled to get the protection of section 11(17) of the Act. The rent control court also found that the tenant is not entitled to get the second proviso protection under section 11(3) of the Act and ordered eviction under section 11(3) of the Act. Aggrieved by the same, the tenant filed R.C.A.No.9 of 2012 on the file of the Rent Control Appellate Authority, Mavelikkara and the appellate authority dismissed the appeal confirming the order of eviction passed under section 11(3) of the Act. Aggrieved by the same, the present revision petition has been filed by the tenant. 5. Heard Shri Sergi Joseph Thomas, learned counsel for the revision petitioner and Shri Rinny Stephen Chamaparambil, learned counsel for the respondent. 6. Learned counsel for the revision petitioner submitted that the respondent herein is conducting business in a rental building which is a building with modern facilities and there is no possibility for him to shift his business to an old building. The petition is filed only to evict her and sell the property to strangers. Learned counsel also contended that the courts below were not justified in denying the RCR 104/206 5 protection under section 11(17) of the Act and he had also submitted that if, for any reason, this court is not inclined to interfere with the concurrent findings entered by the courts below, one year time may be granted to the revision petitioner to vacate the petition schedule building. 7. On the other hand, learned counsel for the respondent submitted that the courts below have concurrently found that the need alleged is bonafide and in view of the decision of a Full Bench of this court in **Prabhakaran v. Sulaikabai** (2007 (2) KLT 103 - FB) the benefit under section 11(17) of the Act will be available to the tenant in occupation and not to his legal heirs. Further, the rent control court was perfectly justified in ordering eviction under section 11(3) of the Act. 8. The contention raised by the tenant was that the petition schedule building was taken on rent by the predecessor-in-interest of the respondent/tenant in the year 1940 and after the death of the original tenant, his son continued the business and after the death of the son, the present petitioner is conducting business in the petition schedule building. It may be mentioned herein that it was admitted by the tenant that she had executed a rent deed in favour of the landlord in respect of the petition schedule building after the death of the RCR 104/206 6 previous tenant. So, it can only be treated as a fresh tenancy after surrendering the earlier tenancy. Even assuming that the predecessorin-interest of the tenant was in occupation from 1[st] April, 1940 onwards, that benefit will not be available to the legal heirs of the tenant in view of the decision of the Full Bench in **Prabhakaran's case** (2007 (2) KLT 103 - FB). So, the courts below were perfectly justified in coming to the conclusion that the revision petitioner is not entitled to get the protection under section 11(17) of the Act. 9. The case of the landlord was that he is conducting business in a rented building by paying Rs.1,800/- as rent and the landlord of that building wanted the landlord herein to vacate the premises and so he wants to shift his business to the petition schedule building. The fact that the landlord is conducting business in a rented building is admitted by the tenant. It is not necessary that the landlord must prove that there is imminent threat for eviction so as to shift his business to his own building. Even if a request is made by a landlord, reasonable tenant can shift his business to his own building and it cannot be said that there is no bonafides on the part of the landlord in filing an application for eviction. Further, shifting of existing business to own building cannot be said to be an irrational desire as well. The tenant had no case that the landlord has got any other building for that RCR 104/206 7 purpose in his possession. So, the courts below were perfectly justified in coming to the conclusion that the need alleged by the landlord is bonafide. 10. But in view of the second proviso to section 11(3) of the Act, the court cannot direct surrender of vacant possession of the building in favour of the landlord, if the tenant is able to establish that he is solely depending on the income derived from the business conducted in the petition schedule building for his livelihood and there are no other vacant buildings available in the locality for shifting his business. It is settled law that both the limbs of the second proviso to section 11 (3) of the Act have to be proved by the tenant. No document has been produced by the tenant to prove that she is solely depending on the income derived from the business conducted in the petition schedule building for her livelihood. Further, though she examined DW2, the Accommodation Controller, her evidence is not helpful to prove that there is no building available in the locality as it was admitted by DW2 that they are not in the habit of keeping the register in a regular manner and no notice of vacancy of building in the locality is being given to them. Only if that is given, that can be entered in the register. So, the courts below were perfectly justified in coming to the conclusion that the evidence of DW2 is not sufficient to come to the RCR 104/206 8 conclusion that there are no other buildings available in the locality. 11. Further, the evidence of PW2, the Advocate Commissioner coupled with Exts.C1 and C1(a) will go to show that there are other buildings available in the locality to shift the business of the tenant. The tenant had also no case that she had made any enquiries regarding the same and nobody was examined also to disprove the above fact. So, the courts below were perfectly justified in coming to the conclusion that the tenant had failed to prove that she is entitled to get the second proviso protection of section 11(3) of the Act and ordering eviction under section 11(3) of the Act. Merely because the tenant is in occupation for a long time and if the business is shifted, it will affect her goodwill and that it will be difficult to collect the amounts due from the customers, is not a ground to deny eviction in favour of the landlord on the ground of bonafide need as well. The concurrent findings of the courts below on these aspects do not call for any interference. Considering the circumstances and also considering the fact that the tenant is conducting business in the petition schedule building since long, we feel it appropriate to grant time till 31.12.2016 to her to vacate the petition schedule premises. So, the revision petitioner is granted time till 31.12.2016 to vacate the premises on condition that RCR 104/206 9 she shall file an undertaking in the form of an affidavit before the rent control court or before the execution court if any execution petition is pending, that she will vacate the premises within the time provided by this court without any objection and on further condition that she will deposit the arrears of rent, if any, within one month and also continue to pay the rent at the rate agreed between the parties till she vacates the premises as directed by this court. She shall further undertake that she will not induct strangers in the petition schedule building or alienate, sub let or commit any act of waste therein. The undertaking shall be filed within a period of three weeks from today. If the undertaking is not filed within that time, then the revision petitioner is not entitled to the benefit of extension of time to surrender the building as directed by this court. The revision petition is dismissed with the above directions and observations. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**