THATTAT SHANKARAN KUTTY S/O VELAYUDHAN NAIR v. ASHRAF P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939** **RCRev..No. 373 of 2016 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 232/2010 of D.C. & SESSIONS COURT,THALASSERY DATED 27-09-2016** **AGAINST THE ORDER/JUDGMENT IN RCP 149/2009 of PRL.M.C.,KANNUR DATED 17-08-2010** **REVISION PETITIONER(S)/(APPELLANT IN RCA AND RESPONDENT IN RCP): ---------------------------------------------------------------** **THATTAT SHANKARAN KUTTY S/O VELAYUDHAN NAIR, T.S.K.PAINTS, KAKKAD ROAD, SOUTH BAZAR, KANNUR, PIN - 670 001. (MISTAKENLY TYPED AS THATTATA IN THE JUDGMENT)** **BY ADVS.SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL** **RESPONDENT(S)/(RESPONDENT IN RCA AND PETITIONER IN RCP):** **--------------------------------------------------------** **ASHRAF P. SON OF ABDUL MAJEED, RESIDING AT MULLA MANZIL, NEERCHAL, KANNUR, PIN - 670 001.** **R1 BY ADV. SRI.K.RAJESH SUKUMARAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** IAP ## **K.HARILAL & RAJA VIJAYARAGHAVAN V, JJ. ====================== R.C.R.NO 373 OF 2016** **----------------------------** Dated this the 5[th] day of April, 2017 ## **O R D E R** ## **K.HARILAL, J.** The petitioner is the tenant against whom an order of eviction has been passed under Sec.11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”). Later the eviction order passed under Sec.11(2)(b) was vacated under Sec.11(2)(c) by the trial court itself. Aggrieved by the eviction order passed under Sec.11(3), the respondent preferred an appeal and the Appellate Authority also confirmed the findings of the Rent Control Court under Sec.11(3) of the Act. Thus, concurrent findings under Sec.11(3) of the Act are challenged in this Revision. 2. According to the petitioner, he needs the petition schedule shop room for occupation of his wife, in order to start a ladies fancy store and his wife is dependent on him for the petition schedule shop room. He has another room R.C.R.NO 373 OF 2016 2 in the first floor of the same building. But it cannot be used for the said purpose because it is in the first floor and very difficult to attract customers. The petition schedule shop room is in the ground floor of the said building and it has direct vision and access from the main road. Moreover, the room adjacent to the vacant room in the first floor is being used as office of a political party. Thus, the special reasons for not occupying the vacant room in his possession in the 1[st] floor are stated in the petition itself. Lady customers would hesitate to come to the shop because of the existence of the office of the political party adjacent to the vacant room in the first floor. 3. The respondent contended that the need put forward by the petitioner is with a mala fide intention to get enhanced rent or to let out the building to some other person for higher rent after evicting the respondent from the petition schedule shop room. The bona fide need put forward by the petitioner is a pretext for eviction only. The petitioner’s wife is living behind veil. If the need is a R.C.R.NO 373 OF 2016 3 bona fide one, the petitioner can start the business in the vacant room in his possession in the first floor. It is incorrect to say that office of the political party will be a nuisance to the lady customers as the political workers used to come to the building only at night time twice in a month only. No other vacant rooms are available in the locality to shift his business and the respondent is depending on the income derived from the petition schedule shop room. 4. On the aforesaid rival pleadings, proper points were framed and both parties adduced evidence, which consist of the oral testimony of P.W.1 and R.W.1 and Exts A1, A2 and B1 to B6. After considering the aforesaid evidence, the Rent Control Court found that the need put forward by the petitioner is a bona fide one and the respondent is entitled to get eviction under Section 11(3) of the Kerala Building (Lease and Rent Control) Act. In appeal, the Appellate Authority also upheld the aforesaid finding. 5. It is the case of the petitioner that he needs the petition schedule building for starting a ladies fancy store R.C.R.NO 373 OF 2016 4 for his wife. In the petition itself the petitioner has given special reason for not occupying the vacant room in his possession. According to the special reason, the fancy store is intended for the business of fancy items for ladies and for such business the ground floor is more preferable than the first floor, more particularly when the office of a political party is also functioning in the room adjacent to the vacant room in the first floor. Once bona fide of the need is proved it is incumbent on the tenant to bring in material evidence which would incline the court to believe that there are oblique motives behind the need. In the instant case, the dependant himself was examined in evidence and he was cross examined and the courts below observed that there is nothing to discredit the evidence of PW1. Therefore we find no reason to interfere with the factual findings of the courts below. 6. Coming to first proviso, as held above, in the petition itself, the petitioner has averred special reason for not occupying the vacant room in his possession in the first floor. It is also contended that the office of a political R.C.R.NO 373 OF 2016 5 party is also functioning in a room adjacent to the said vacant room. It is also averred that the room in the first floor has no direct vision and access from the main road. The petition schedule shop room is more convenient and preferable than the room in the first floor for conducting a ladies fancy store. We are of the opinion that the courts below are justified in relying on the aforesaid special reason as the same is reasonable and rational. In short, it appears that the petitioner has succeeded in satisfying the courts below by providing special reason for not occupying the other vacant room which stood in his possession in the first floor. Therefore we do not find any reason to interfere with the finding that the need projected by the petitioner is not hit by the first proviso to Sec.11 of the Act. 7. Coming to the second proviso, it has come out in evidence that the respondent has been conducting the business of oxygen cylinders also. But the respondent has not adduced any evidence to prove that the income derived from the business in the petition schedule shop ## R.C.R.NO 373 OF 2016 6 room is the main source of income. As regards the availability of the alternative suitable shop room in the locality the respondent himself admitted that he has not made any attempt to find out an alternative vacant shop room in the locality to shift his business from the petition schedule shop room. He has no case that no vacant rooms are available in the locality to shift his business. The respondent has visibly failed to discharge the burden of proof contemplated under the second proviso to Sec.11 of the Act. 8. The learned counsel for the respondent vehemently contended that the non examination of the petitioner is fatal. Going by the impugned judgment it is seen that the wife of the petitioner, for whose need the building was sought to be vacated, was examined as P.W.1. In other words the dependant was made available for cross examination to test the bona fides of the need. In **Devayani** v. **Pulickaparambil Hamsa Haji (1997(1) KLJ 230** ) this Court, relying on **R.Narasimhachari v. Kanakasabapathi (1964(1)MLJ 256)** , held as follows. R.C.R.NO 373 OF 2016 7 _“when we consider the question whether the landlord requires the building bonafide for his own use we have to bear in mind whether the premises may be required reasonably and bona fide. It is the duty of the court to see whether the premises are required both reasonably and bona fide. The bonafides may be proved in an ordinary way like any other fact. There is no such rule of law that bona fides being the subject matter can only be proved by the petitioner stepping into the witness court. It depends upon the facts and circumstances of each case.”_ In the above view this court finds that it cannot be held that the petitioners must be invariably examined in all cases claiming eviction under Sec.11(3) of the Act and the non examination of the petitioner is not fatal particularly when the dependant was examined to prove the bonafides of the need. We find no reason to interfere with the concurrent findings of the courts below. Hence this Revision fails on merits. R.C.R.NO 373 OF 2016 8 9. The learned Counsel for the revision petitioner seeks six months time to vacate the premises. This Court is also of the opinion that a reasonable time can be given to the revision petitioner to surrender the petition schedule shop room, on terms. The revision petitioner shall surrender the vacant possession of the petition schedule shop room within six months provided that he could comply the conditions given below within the specified time. 1)The revision petitioner shall file an affidavit before the Execution Court expressing an unconditional undertaking to surrender the petition schedule shop room within a period of six months from today and the said affidavit must be filed within one week from the date of receipt of a copy of this order. - 2)The revision petitioner shall pay entire arrears of rent to the respondent or deposit the same before the Rent Control Court or Execution Court R.C.R.NO 373 OF 2016 9 as the case may be, within on week from the date of receipt of the copy of this order and he shall continue to pay rent without default. - 3)In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the respondent will be at liberty to proceed with the execution. Sd/- **K.HARILAL** Sd/- **JUDGE** **RAJA VIJAYARAGHAVAN V JUDGE** //True Copy\\ P.A to Judge IAP