T. P. Devassy v. P. I. Sekkeena

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** **RCRev.No. 370 of 2013** **AGAINST THE JUDGMENT IN RCA 98/2008 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 14-06-2013** **AGAINST THE ORDER IN RCP 17/2006 of RENT CONTROL COURT, THRISSUR DATED 30-08-2008** ## **REVISION PETITIONERS :** **(APPELLANTS IN RCA/ TENANTS IN THE TRIAL COURT)** **T.P.DEVASSY, S/O.THOTTAN PORINCHU, AGED 85 YEARS, BUSINESS, RESIDING AT SN PARK, STREET, T.C.NO.2/377/A, PATHOLE P.O, THRISSUR.** **BY ADVS. SRI.K.B.PRADEEP SRI.ASHOK SURESH** ## **RESPONDENTS :** **(RESPONDENT IN RCA/PETITIONER IN THE TRIAL COURT)** **P.I.SEKKEENA, W/O.LATE IBRAHIM, VALIYAKATH VELLANGIL HOUSE, KUNDALIYUR VILLAGE, PADOOR DESOM, CHAVAKKAD, THRISSUR, REPRESENTED BY POWER OF ATTORNEY HOLDER ABU TAHIR, S/O.LATE VALIYAKATH VELLANGKL IBRAHIM, KUNDALIYUR VILLAGE, PADOOR DESOM, CHAVAKKAD THRISSUR - 680 013** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev.No. 370 of 2013** 2 ## **ORDER** ## **Annie John, J.** The tenants are the revision petitioners. This revision arises from a proceedings initiated before the Rent Control Court, Thrissur as RCP.No.17/2006 for eviction of a shop room, sought on the ground of bona fide need invoking Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as,'the Act). The petitioner is conducting a photostat copying and computer peripherals vending shop. The petition schedule room belongs to the respondent and the same was let out to the respondent in the month of January, 1992, for a monthly rent of Rs.1000/-, which was periodically raised to Rs.2000/- per month. 2. Now the landlord has filed a petition under Section 11(3) of the Act by stating that her son, Abu Thahir wants to start a business in computer peripherals, as he is unemployed. While the appeal was pending, a shop room in the same building complex fell vacant and the same was advertised for lease. This fact was brought to the notice of the Appellate Authority by way of a commissioner's report. The Appellate Authority discarded the same and dismissed the Appeal **RCRev.No. 370 of 2013** 3 confirmed the order passed by the Rent Control Court under Section 11(3) of the Act. The appellant has brought out the grounds for interfering the order of the Rent Control Appellate Authority that the tenant is not entitled to the benefit of proviso to Section 11(3) is in correct. There were availability of some buildings in the locality, is not enough for the court below to extend the benefit of proviso to the tenant. The building, which fell vacant is suitable for starting the proposed business of the landlord's son. The lower appellate court was not justified in ignoring the commissioner's report regarding the availability of the shop room. The court below ignored the absence of pleadings regarding the special need, when the tenant has adduced additional evidence in the appellate court regarding the possession of another premises with the landlord. 3. Now the question is whether any illegality or irregularity committed by the Rent Control Appellate Authority or the Rent Control Court in passing an order under Section 11(3) of the Act. The respondent/ landlord has filed a petition under Section 11(3) of the Act by stating that her son is entitled to get the room for conducting the business in computer peripherals. The respondent/ landlord was examined as PW1 and she has categorically deposed that her son Abu Thahir for **RCRev.No. 370 of 2013** 4 whose accommodation, she has sought for eviction of the appellant/ tenant from the petition schedule building. In the petition, there is no specific averments that the petitioner's son Abu Thahir is dependent on the petitioner. Before filing of the petitioner, the respondent has sent a notice to the appellant/ tenant requiring him to vacate the building. In the notice, it was specifically mentioned that her son Abu Tahir is fully dependent on her. The appellant/ tenant has sent a reply stating that it is false that Abu Thahir is fully dependent upon the respondent. So, the contention raised by the appellant that there was no pleadings to the effect that the respondent/ landlord's son requires the petition schedule room for his bona fide requirement is not correct. Even in the proof affidavit also, it was contained that PW1, the son of the landlord is fully depending upon the landlord and for starting the business, the petition schedule room is highly required. ## 4. In _**2009(1) KLT 963 (J.C.R. Trading (P) Ltd. v.**_ _**Varghese)**_ , it has been held by the Division Bench of this Court that “in case where the need projected is for occupation by a dependent, family member of a landlord, it is sufficient that the dependent family member, for whose occupation the RCP has been filed, gives evidence as witness”. So, notwithstanding the **RCRev.No. 370 of 2013** 5 fact that the petitioner/ landlord has not come forward to give evidence that Abu Tahir, to accommodate whom the petitioner seeks eviction of the tenant has not given evidence regarding dependency of Abu Tahir on her the evidence of PW1 on their aspect is quite sufficient”. So, the non-examination of the petitioner is not fatal as the son of the respondent/ landlord has given evidence before the court. It has also brought out in evidence that PW1, the son of the respondent/ landlord has completed BCA and he has no job at present and so, he intends to start a business in computer peripherals. He has also produced Ext.A9 Provisional Certificate issued by Bharathiyar University, Coimbatore showing that PW1, Abu Thahir is qualified for Degree of Bachelor of Computer Applications and he has passed the final examinations held in April, 2005. Ext.A8 is the Transfer Certificate issued by S.N.R.Sons College (Autonomous), Coimbatore, which shows that Abu Thahir was admitted for M.Com Degree in that institution on 23.06.2005 and in the year, he has discontinued the studies. Ext.A7 is the Course Certificate which shows that PW1, Abu Thahir was a student of S.N.R. Sons College, Coimbatore from 2001 to 2004 in Bachelor of Computer Applications and appeared for University examination in April/ May, 2004. So, it is proved that **RCRev.No. 370 of 2013** 6 PW1 is highly qualified in Computer Application and Computer Science. So, the reason of the PW1 to establish the business on computer peripherals is found to be reasonable. 5. Per contra, the tenant contended that PW1 is employed or rather has his own business of computer, internet etc.in the ground floor and upstair of the same building and he is looking after the whole building and collecting rent etc. and there is no need or necessity for him to start any new business. In this connection, it is very important to note that it is a well settled principle that it is not for the tenant to dictate to his landlord and his family as to what they should do and they should not do. Even, it is also a well settled principle that a person having hundreds of business establishments cannot be prevented from starting another business of his own. Affluence of the landlord or his dependent is not a ground to suspect the _bona fides_ in the plea of _bona fide_ need under Section 11(3) of the Act. Moreover, PW1 is aged 26 years only and his father is no more. Alternately, the landlady, who is the mother of PW1 is very interested to put up new business for the PW1. 6. Another contention of the appellant was that the need projected by the respondent landlady is only a ruse for evicting the tenant from the petition schedule building. **RCRev.No. 370 of 2013** 7 According to him, the rent was enhanced to Rs.2,000/- per month. The tenant's unwillingness to pay the higher rent demanded by the landlord cannot be projected as a ground against the landlord that the _bona fide_ need required under Section 11(3) of the Act is with oblique motive. There is evidence on record that the _bona fide_ need pleaded by the landlord is true and genuine, that PW1 is dependent on the landlord and that it is to accommodate PW1, who is the son of the respondent/landlord and a member of his family, that he needs the petition schedule shop room. In the notice sent to the tenant before the filing of the RCP, it is clearly stated that PW1 is dependent on the landlord. There is also evidence to substantiate the claim put forward by the respondent/landlord regarding the dependency of PW1 and therefore, it is proved beyond doubt by the respondent/landlord that the petition schedule shop room was required for the occupation of PW1, who is fully dependent on her. 7. Once the need projected by the landlord is substantiated, then the burden shifts upon the tenant to prove that he is entitled to get protection under first proviso to Section 11(3) of the Act. The revision petitioner/tenant has not given any evidence to prove that the respondent/landlord is in **RCRev.No. 370 of 2013** 8 possession of any other vacant rooms in the same locality in order to accommodate the proposed business for her son, PW1. The main argument of the learned counsel for the revision petitioner is that the respondent/landlord is in possession of another room in the first floor of the building and this fact has been reported in Ext.C2 Commission report. The Commissioner, who has inspected the site, has filed Ext.C2 report, wherein the Commissioner has reported that one of the rooms in the first floor of the building was being arranged for starting a restaurant by name “Hot N Sour Burger Club”. Apart from that, no evidence was forthcoming to prove that particular business was going to be started by the respondent/landlord. It has also come out from the Commissioner's report that the restaurant or eatery is part of National Lodge, which is the name of the entire building wherein there is a lodge having several rooms in which there are several establishments. The tenant cannot dictate terms to the landlord and landlord is the best judge of his requirements. Eventhough the learned counsel for the revision petitioner/tenant has strenuously argued that the room in the custody of the respondent fell vacant after the filing of the Rent Control Petition, the same is not established by adducing any evidence by the revision **RCRev.No. 370 of 2013** 9 petitioner. Therefore, the revision petitioner has failed to prove that he is entitled to get protection under the first proviso to Section 11(3) of the Act. 8. As regards the claim under the second proviso to Section 11(3) of the Act, he has produced Exts.B1 to B6 documents stating that he is fully depending on the income derived from the business carried on in the tenanted premises. In order to get protection under the second proviso to Section 11(3) of the Act, there must be a proof to the effect that the revision petitioner/tenant is depending upon the income derived from the business which is being carried on in the petition schedule shop room and he has no other vacant rooms available in the locality for him to shift his business. The revision petitioner/tenant has miserably failed to establish the same. There is evidence to prove that there are other rooms available in the locality for the appellant to shift his business. So, the revision petitioner/tenant is entitled to get protection under Section 11(3) of the Act. On going through the entire evidence and the arguments advanced by either side, we find that the Rent Control Court as well as the appellate court has considered all the material aspects and the evidence in detail and ultimately **RCRev.No. 370 of 2013** 10 arrived at a conclusion that the _bona fide_ need urged by the respondent/landlord is genuine and the revision petitioner/tenant is not entitled to get the protection of the second proviso to Section 11(3) of the Act. We do not find any illegality, impropriety or perversity in the findings of the courts below. Therefore, the interference of this Court is not warranted. In the result, the orders passed by the Rent Control Court as well as the Rent Control Appellate authority are hereby confirmed. Accordingly, this RCR is dismissed. However, the learned counsel for the revision petitioner seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given time till 31.03.2019 to vacate the tenanted premises on the following conditions: 1. The revision petitioner shall pay the entire arrears of rent, if any, within a period of one month from today. 2. The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises on or before 31.03.2019. 3. The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy **RCRev.No. 370 of 2013** 11 of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. Sd/- **K. HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True copy PA to Judge _Rkm/Rv_