T. George v. K.L. Stanley

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 TUESDAY, THE 20TH DAY OF AUGUST 2013/29TH SRAVANA, 1935 RCR.No. 167 of 2013 () -------------------------- AGAINST THE ORDER OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM IN RCA 116/2011 DATED 20-11-2012 & AGAINST THE ORDER IN RCP 89/2010 ON THE FILE OF RENT CONTROL COURT/THIRD ADDITIONAL MUNSIFF, ERNAKULAM DATED 16-08-2011 PETITIONER/RSPONDENT IN R.C.A/RESPONDENT.: ------------------------------------------- T.I.GEORGE, AGED 61 YEARS, S/O. LATE ITTIYERA, THAYAMKERI HOUSE, EDAPPALLY, KOCHI-24, ERNAKULAM DISTRICT. BY ADV. SRI.B.N.SHIVSANKAR RESPONDENT/APPELLANT IN R.C.A/PETITIONER: ---------------------------------------- K.L.STANLEY, AGED 63 YEARS S/O. LONAPPAN, KALLUVEETTIL HOUSE, CHITTOOR ROAD, ERNAKULAM DISTRICT - 682 034. R1 BY ADV. SRI.M.R.JAYAPRASAD, CAVEATOR R1 BY ADV. DR.K.P.SATHEESAN (SR.) R1 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R1 BY ADV. SRI.ANOOP.V.NAIR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ab **T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R.No.167/2013 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 20[th] day of August, 2013** ## **O R D E R** ## **Ramachandran Nair, J.** The tenant of a building, who is ordered to be evicted from the premises for the bona fide need of the landlord, is the petitioner herein. 2. The learned counsel for the petitioner Shri B.N.Shiv Shanker submitted that so many factors have relevance to show absence of any bona fide need herein which have not been properly appreciated by the Appellate Authority. At the outset, it is pointed out that the Rent Control Court had rejected the prayer under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short, the 'Act'). The case was tried along with R.C.P.No.90/2010 and the Appellate Authority reversed the finding. 3. We have been taken in extenso through the pleadings, the notices issued by the landlord and the evidence in the matter. According to the learned counsel for the petitioner, Ext.A6 notice was issued on 24/11/2007 wherein initially, the landlord had set up a plea on bona fide **R.C.R. No.167** **`/2013`** ## **-:2:-** need. It is stated by the landlord in the present eviction petition that the tenant had sought for time to vacate the premises and therefore, he did not approach the Court. The present proceedings have been initiated after Ext.A8 notice dated 09/04/2010 was issued. It is submitted that there is no explanation for the delay and even in the evidence, he had stated that the actual need was felt in the year 2005. The learned counsel therefore submits that if the need had actually been there in 2005, the filing of the eviction petition in the year 2010 will show that it is only a ruse to evict the tenant. It is also submitted that the analysis of the evidence by the Rent Control Court was proper and the Appellate Authority has reversed the findings without going into the various aspects pointed out by the tenant. 4. The learned counsel for the respondent-landlord Shri M.R.Jayaprasad submitted that there are no circumstances to doubt the bona fide need of the landlord and it is well settled that the delay itself in filing the eviction petition after the issuance of the notice is not a ground to reject the eviction petition. He relied upon the dictum laid down by a ## **R.C.R. No.167** **`/2013`** ## **-:3:-** Division Bench of this Court in Aboobacker v. Nanu [2001 (3) KLT 815], especially in para.9 therein, wherein this Court was of the view that the Court can take note of the fact that a party may not rush to the court for getting remedy. 5. In the order passed by the Rent Control Court, in para.16, the court has discussed the evidence. After referring to the evidence of PW1, it was noticed that the second demand notice was issued only on 09/04/2010 and there is no explanation for the delay. Therein, the Rent Control Court adverted to the statement of PW1 in the cross-examination that the need for starting business had arose in the year 2005 and he had taken loan during that year. 6. Going by the evidence, his two sons are employed and his elder son is a M.C.A Graduate and the second son is a holder in B.Tech in Electronics and Computer and the younger son is a B.Tech student. According to the Rent Control Court, though the need arose in the year 2005, first demand notice was issued in the year 2007. It is also observed **R.C.R. No.167** **`/2013`** ## **-:4:-** that after the necessity arose in the year 2005, he had obtained vacant possession of a portion of the same building having 600 sq.ft. and let out the same to a Chartered Accountant. Apart from the same, in the year 2005, he let out another portion of the building have same area to Airtel Communications. 7. In fact, the evidence of the landlord showed that he had a STD Booth in the same building and for want of profit it was stopped. The learned counsel therefore submits that the fact that he had failed in making any progress in the business itself will show that he is not capable of doing the business. As far as the present business is concerned, he is not having any knowledge about computers and going by his evidence, his wife is only having a pass in Pre-Degree and both of them are not having any knowledge about the business in computer or computer software. After considering the above evidence, the Rent Control Court in paras.18 and 19 held that the bona fide need is not evident in the facts of the case. **R.C.R. No.167** **`/2013`** ## **-:5:-** 8. Mainly, the said finding was reversed by the Appellate Authority after finding that the delay itself is not material in a case like this. In fact, the Appellate Authority also did not believe the version of the landlord that the tenant offered to surrender the premises within six months after the first notice. The Appellate Authority was of the view that the fact that the landlord did not immediately file the eviction petition itself would not lead to a finding that his need is not bona fide. We find that the said finding is well supported by the dictum laid down in Aboobacker's case [2001 (3) KLT 815] which we have referred to above. Of course, the learned counsel for the petitioner emphasises the fact that the delay itself may not be a mere ground to reject the petition but coupled with other factors it will have to be weighed. 9. Now, the two other factors pointed out by the learned counsel are availability of other premises after 2005 and inexperience of the landlord in doing business in Computer Software. As far as the first one is concerned, going by the decisions of this Court in Valsan v. Furtal [2004 **R.C.R. No.167** **`/2013`** ## **-:6:-** (3) KLT 1046] and Manu v. Bhanumathy [2004 (1) KLT 212], it is well settled that the mere fact that the landlord had an opportunity to get vacant possession of another room and did not start the business does not mean that the bona fide need cannot be said to be genuine. Several factors would go into the mind of the landlord and once a choice is made by the landlord to take a particular room or rooms for his own occupation, even if, during the pendency of the eviction petition, he comes in possession of another room that may be immaterial. The Appellate Authority has relied upon the above decisions in para.10 of the Judgment. Therefore, on that score, we cannot accept the contention of the learned counsel for the tenant. Present, eviction petition is filed in the year 2010, much years after the two rooms were rented out, in the year 2005. 10. The last contention is want of previous experience. Going by the decisions of this Court and the Apex Court, previous experience cannot be insisted to test the bona fide need of the landlord, as it is not a requirement for anybody to conduct a business that he should have **R.C.R. No.167** **`/2013`** ## **-:7:-** previous experience. Therefore, all the three factors together, according to us cannot advance the case of the tenant. Therefore, we uphold the view taken by the Appellate Authority. 11. The landlord has pleaded that his elder son is qualified in computer technology and it is possible for him to start the computer software business. The family members of the landlord are residing in the second floor of the same building and it would be convenient for them to start the business in the ground floor. Both the appellant and his wife are not having any other businesses or avocations in life. Therefore, it cannot be said that it is their mere wish to start a business for augmenting the income of the family, especially, due to the fact that the sons are well qualified also. One of the sons of the landlord has been examined as PW2. His evidence will show that after acquiring M.C.A he got employment with certain companies. At the time of examination in court, he was engaged as a Project Associate on contract basis in C.T.S which he expects to be over by a short time. We are of the view that merely **R.C.R. No.167** **`/2013`** ## **-:8:-** because the sons of the landlord have got employment or otherwise engaged, the bona fide need of the landlord is affected. It cannot be insisted that they should keep themselves idle awaiting the result of the eviction petition. Therefore, the bona fide need can only be termed as genuine and it is not a mere wish. 12. As far as the second proviso to Section 11(3) of the Act is concerned, the finding is against the tenant. It is also evident that he is having another business nearby. Therefore, we concur with the findings rendered by the Appellate Authority reversing the finding of the Rent Control Court. We grant time upto 28/02/2014 to the tenant to vacate the premises on the following conditions: i. The petitioner will file an affidavit before the Execution Court or the Rent Control Court as the case may be undertaking to vacate the petition schedule premises within the above period which will be filed within one month from today. **R.C.R. No.167** **`/2013`** ## **-:9:-** ii. Any arrears of rent as on today will be paid to the landlord within one month from today. iii. The tenant will continue to pay rent to the landlord, for use and occupation of the premises, at the same monthly rate as exists now. iv. It is made clear that if any of the conditions are violated, the tenant will not be entitled for the benefit of this order. Sd/- ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** **Sd/** **(A.V.RAMAKRISHNA PILLAI JUDGE)** ms \\True copy// P.A to Judge