Thiruvananthapuram District Co-operative Bank Ltd Head Office, Fort, Thiruvananthapuram v. Varsamma John, Wilson John, Jenson John, Nelson John

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 27TH DAY OF JUNE 2018 / 6TH ASHADHA, 1940 RCRev..No. 182 of 2018 AGAINST THE ORDER IN RCP 26/2015 OF THE RENT CONTROLLER, THIRUVANANTHAPURAM AGAINST THE JUDGMENT IN RCA 20/2017 OF THE RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM REVISION PETITIONER(S)/APPELLANTS/COUNTER PETITIONERS 1 THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD HEAD OFFICE, FORT, THIRUVANANTHAPURAM - 695 023, REPRESENTED BY ITS GENERAL MANAGER, THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD, FORT, THIRUVANANTHAPURAM. 2 THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD KUNNUKUZHY BRANCH, REPRESENTED BY ITS BRANCH MANAGER, THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD, KUNNUKUZHY BRANCH, TC 26/2641, UNIVERSITY P.O, THIRUVANANTHAPURAM - 695 034. BY ADV.SRI.S.KRISHNA KUMAR (MANGALAM) ## RESPONDENT(S)/RESPONDENTS/PETITIONERS: 1. MRS. VALSAMMA JOHN W/O.LATE P.T JOHN, AGED 66 PATHISSERIL JOHN VILLA, T.C NO.26/2642 THARA NO.318,UNIVERSITY P.O, THIRUVANANTHAPURAM - 695 034. 2. WILSON JOHN, AGED 47 YEARS, S/O.LATE P.T JOHN, PATHISSERIL JOHN VILLA, T.C NO.26/2642 THARA NO.318,UNIVERSITY P.O, THIRUVANANTHAPURAM - 695 034 PRESENTLY RESIDING AT POST BOX NO. 120987, DUBAI UNITED ARAB EMIRATES. 3. MR. JENSON JOHN, AGED 42 YEARS, S/O. LATE P.T JOHN, PATHISSERIL JOHN VILLA, T.C NO.26/2642 THARA NO.318,UNIVERSITY P.O, THIRUVANANTHAPURAM - 695 034 PRESENTLY RESIDING AT POST BOX NO. 120987, DUBAI UNITED ARAB EMIRATES. ## 4. NELSON JOHN, AGED 37 YEARS, S/O. LATE P.T JOHN, PATHISSERIL JOHN VILLA, T.C NO.26/2642 THARA NO.318,UNIVERSITY P.O, THIRUVANANTHAPURAM - 695 034 PRESENTLY RESIDING AT POST BOX NO. 120987, DUBAI UNITED ARAB EMIRATES. RESPONDENTS 2 TO 4 ARE REPRESENTING THROUGH THEIR MOTHER AND POWER OF ATTORNEY HOLDER, THE 1ST RESPONDENT. R1 BY ADV. SRI.PRAVEEN VYASAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.Harilal & Shircy V.J.** ==================================== R.C.R.No.182/2018 ==================================== Dated this the 27[th] day of June, 2018. ## **ORDER** ## **K.Harilal, J.** 1.The revision petitioners are the respondents in RCP 26/2015 of the Rent Control Court, Thiruvananthapuram. They are the tenants. The respondents herein filed the aforesaid rent control petition, under section 11(3), 11(2)(b) and 11(4)(ii) and (iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act), seeking an order of eviction. The revision petitioners herein objected the said application contending that the need projected in the petition is not _bona fide_ . After considering the evidence on record, the Rent Control Court allowed the rent control R.C.R.No.182/2018 ## -:2:- petition, by granting an order of eviction under section 11(3) of the Act and they rejected the claim under section 11(2)(b), 11(4)(ii) & (iii). Aggrieved by the order granting eviction under section 11(3), the revision petitioners herein filed RCA 20/2017 before the Additional Rent Control Appellate Authority-II, Thiruvananthapuram. After reappreciating the evidence on record, the Rent Control Appellate Authority also concurred with the findings of the Rent Control Court and affirmed the order of eviction under section 11(3) of the Act. The concurrent findings of the courts below, whereby the order of eviction has been passed against the revision petitioners, are challenged in this revision petition. 2.According to the respondents/landlords, they R.C.R.No.182/2018 -:3:- _bona fide_ need the petition schedule building, for starting a computer software and allied business jointly. The first respondent has no avocation at all and she is depending upon respondents 2 and 3. Respondents 2 and 3 were employed abroad. Now they resigned from the overseas employment and proposed to return to native place. The fourth respondent is also an unemployed person. Thus, they are in need of the tenanted premises for eking out income for their livelihood, after the return of respondents 2 and 3 from gulf country. They have no other vacant buildings of their own to start the aforesaid business. The revision petitioners are not depending upon the income from the tenanted premises and several other buildings are available in the locality to shift their business from the petition schedule R.C.R.No.182/2018 -:4:- ## building. - 3.The revision petitioners herein resisted the said application, contending that respondents 2 and 3 are working abroad. So, the need projected in the petition is not a current need and it is only a future need and thereby it lacks _bona fides._ It is also contended that they are engaged in the business of banking, which is declared as essential service and no alternate buildings are available in the locality to shift the business from the petition schedule building. The fourth respondent is engaged in a profitable business, Therefore, he has no need to start a new business. The proposal to start a new business is intended to kick the petitioners out from the petition schedule building. The revision petitioners are earnestly taking steps to R.C.R.No.182/2018 ## -:5:- change the banking business to another suitable building and they used to pay the rent regularly. They are ready to make reasonable hike in the rent. But, the respondents were not amenable for it. With the aforesaid averments, they prayed for dismissal of the rent control petition. - 4.Both parties adduced evidence on the rival pleadings, which consists of the oral testimony of PW1 and CPW1, the documentary evidence of Exts.A1 to A10 and Ext.B1. After considering the aforesaid evidence, the courts below concurrently found that the need projected in the petition is _bona fide_ and the revision petitioners are not entitled to get protection under the proviso to section 11(3) of the Act. - 5.Heard the learned counsel for the revision petitioners. R.C.R.No.182/2018 ## -:6:- - 6.The scope and extent of consideration in a revision petition is very limited and confined to the legality and propriety of the findings of the courts below only. There is no scope for interference with the findings of the courts below on factual issues, unless those findings are perverse. Going by the concurrent findings of the courts below, it could be seen that the revision petitioners have raised a contention that the respondents 2 and 3 are working abroad and they have not returned from gulf country. So, the need projected in the petition is not a current need and it is a future need only and thereby lacks _bona fides._ The said contention was considered by the courts below in the light of the decision in _**Raveendran M.N. And another v. V.V.Sivaprasad**_ **(2017 (4) KLJ 794).** In the said decision, this R.C.R.No.182/2018 -:7:- court held that an order of eviction under section 11(3) can be granted in anticipation of a _bona fide_ need, reasonably arising in future. The _bona fide_ need need not be a current or urgent one, but it can be a prospective one also. A _bona fide_ prospective need of a nonresident Indian under section 11(3) of the Act, cannot be rejected, on the ground that he is still working abroad and the need is not current or urgent one. The overseas employment is not a permanent employment and they may return to home town at any time. A nonresident Indian, who had spent considerable time in abroad during his life for the desire of living along with his family cannot be said to be whimsical or fancy. Thus, the _bona fide_ need contemplated under section 11(3) of the Act may be prospective or future. R.C.R.No.182/2018 ## -:8:- - 7.In the instant case, in the pleadings, it is specifically stated that respondents 2 and 3 had left their employment in Dubai and returned to their home town at Thiruvananthapuram. The fourth respondent, who is the younger son of the first respondent, is about to complete his MBA. Thus, the respondents jointly intended to start business of computer software and allied business in the petition schedule building for their livelihood. It is also specifically pleaded that the first respondent is unemployed and she is solely depending upon the income of her sons. In order to prove the _bona fides_ of the need, the first respondent was examined as PW1 and she has testified as to the _bona fides_ of the need projected in the averments. She stood by the averments in the petition, which would disclose the _bona fides_ of the need. The R.C.R.No.182/2018 -:9:- courts below concurrently observed that nothing has been brought out to discredit the evidence of PW1. In _**Sreekumaran Nair v. Ponnuswami Chettiar**_ **(2010 (3) KLT 444)** this court held that, where the landlord himself testifies as to the state of mind, evidencing the _bona fides_ of his need and offers himself for crossexamination, his oral testimony as such is liable to be accepted, unless the tenant brings out anything contrary in the cross-examination. In the absence of anything contrary to the oral testimony of PW1, the courts below are fully justified in relying on the oral evidence of PW1 and finding that the need projected is _bona fide_ . - 8.Coming to the first proviso, the revision petitioners have no case that the respondents have any other vacant building of their own to R.C.R.No.182/2018 ## -:10:- conduct the proposed business. In the absence of such a pleading, that question does not arise for consideration in the instant case. 9.Coming to the second proviso, admittedly, the first revision petitioner is a bank, having several branches in Thiruvananthapuram District. They have no case that they are depending on the income derived from this particular branch. Therefore, it can be safely concluded that the revision petitioners are not depending upon the income from the tenanted premises. As regards the second limb of the second proviso, the burden of proof is on the revision petitioners and the courts below concurrently found that no evidence had been adduced to prove that no other suitable building is available in the locality for conducting their banking business. Thus, it R.C.R.No.182/2018 ## -:11:- can be safely concluded that the revision petitioners have miserably failed to discharge the burden of proof, under the second proviso to section 11(3) of the Act. 10. In the above analysis, we find that there is no illegality or impropriety of the findings, whereby the courts below concurrently passed an order of eviction, under section 11(3) of the Act. We do not find any reason to interfere with the concurrent findings of the courts below. This revision is devoid of merits. It is accordingly dismissed. 11. Learned counsel for the revision petitioners sought for some time to vacate the petition schedule building. Learned counsel further submits that the first revision petitioner is a bank and they are in search of a suitable building and in spite of the earnest R.C.R.No.182/2018 ## -:12:- efforts, they could not find out a suitable building so far. If they vacate abruptly, the customers will be put to great hardship and difficulty. 12. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioners are given six months' time to vacate the petition schedule building, on the following conditions: _(1) The revision petitioners/tenants shall file an affidavit, 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 room within six months from today._ _(2) The revision petitioners/tenants shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of_ R.C.R.No.182/2018 ## -:13:- _this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondents/landlord will be at liberty to proceed with the execution of the eviction order._ 13. The Rent Control Revision is dismissed. All the pending interlocutory applications will stand closed. Sd/- ## **K.Harilal, Judge** Sd/- ## **Shircy V., Judge** sl. //True copy// ## P.S. To Judge