Tholiyil Sivadasan v. P.P. Kamaladevi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 19TH DAY OF OCTOBER 2017/27TH ASWINA, 1939** **RCRev..No. 346 of 2016 (A) --------------------------** **RCA 82/2015 of RENT CONTROL APPELLATE AUTHORITY/III ADDL. DISTRICT COURT, KOZHIKODE RCP 13/2011 of RENT CONTROL COURT/PRL. MUNSIFF COURT-II, KOZHIKODE** **REVISION PETITIONER/APPELLANT/RESPONDENT: -------------------** **THOLIYIL SIVADASAN, AGED 53 YEARS, S/O.KUNHAPPU, MOOLAYIL VEEDU, SREE NILAYAM, FEROKE P.O., FEROKE AMSOM, NALLUR DESOM, KOZHIKODE DISTRICT.** **BY ADVS.SRI.P.V.KUNHIKRISHNAN SRI.P.V.ANOOP** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **------------** **1. P.P.KAMALADEVI, AGED 74 YEARS, W/O.SREEDHARAN CHETTIYAR, POKKINI POTTA HOUSE, RAMANATTUKARA, KOZHIKODE, PIN-673633.** **2. SHEELA V.K., AGED 51 YEARS, D/O.SREEDHARAN CHETTIYAR, POKKINI POTTA HOUSE, RAMANATTUKARA, KOZHIKODE, PIN-673633.** **3. AJEENDRAN V.K., AGED 49 YEARS, S/O.SREEDHARAN CHETTIYAR, POKKINI POTTA HOUSE, RAMANATTUKARA, KOZHIKODE, PIN-673633.** **R1-R3 BY ADV. SRI.JOHNSON GOMEZ R1-R3 BY ADV. SRI.K.P.SUFIYAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** ## K.HARILAL & A.M.BABU, JJ. --------------------------R.C.R. No.346 of 2016 --------------------------Dated this the 19[th] day of October, 2017 ## O R D E R ## **Harilal, J.** The revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently by the courts below under section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act). The parties are referred to as in the Rent Control Petition. 2. According to the petitioner, the respondent had failed to pay enhanced rent at the rate of Rs.150/- per mensem from June 2002 onwards. Initially monthly rent was @ Rs.1,000/- per mensem and subsequently it was enhanced to Rs.1,650/- per mensem from June 2002 onwards. But the respondent has kept the rent in arrears for an amount of Rs.21,450/-. The respondent resisted the RCR.346/16 **:2:** said claim contending that even though the rent was enhanced to Rs.1,650/- from 2002 onwards, he has done so many repair works in the building and he was allowed to adjust the enhanced rent of Rs.150/- per mensem towards the amount spent by him for the repair works and he had remitted the balance Rs.1,500/- per month from June 2002 onwards without any default. Therefore no amount is due from him as arrear. 3. Going by the impugned judgment under challenge, it has come out in evidence that, though the respondent has denied the execution of Exts.A1 and A2 rental agreements, Ext.B2 Note book produced by the respondent shows that the initial rent was Rs.1,000/- and subsequently it was enhanced to Rs.1650/-. So there was no bona fides in the denial of Exts.A1 and A2. Even though the respondent has contended that he was allowed to adjust Rs.150/- per month towards the amount spent by him for the construction of the additional structures, no evidence was forthcoming to prove the construction of RCR.346/16 **:3:** additional structures. That apart, the respondent himself admitted that he has not obtained the permission of the petitioners to make such constructions. So, no amount could be adjusted towards the alleged construction. So the respondent was liable to pay rent at the rate of Rs.1,650/per month from 27/5/1995. But the respondent himself admitted that he has deducted Rs.150/- per month from June 2002. No evidence has been produced to prove that he has paid rent at the rate of Rs.1,650/- per month from 2010. Thus, it stands proved that the enhanced rent at the rate of Rs.150/- has not been paid from 2002 and he has kept the entire rent in arrears from August 2010. Admittedly, the respondent has not paid the said arrears of rent within 15 days from the date of receipt of Ext.A3 notice. Hence the courts below are justified in passing the order of eviction under section 11(2)(b) of the Act. We do not find any reason to interfere with the said findings. 4. Coming to the claim under section 11(3), we remind ourselves of the scope and extent of jurisdiction RCR.346/16 **:4:** under section 20 of the Act, which is confined to legality, propriety and regularity of the findings of the courts below only. A revision is not an appeal in disguise. We are not inclined to re-appreciate the entire evidence on record in exercise of revisional jurisdiction. The respondent has no case that the courts below have omitted to consider any valuable evidence, or placed reliance on any irrelevant evidence or wrong proposition of law. Therefore, this Court is not expected to take a different view other than the concurrent findings of the courts below, particularly in the absence of any kind of perversity in the appreciation of evidence. 5. In order to prove the bona fides of the need, the dependent, for whom the petition schedule shop room was required, was examined as PW1 and he testified as to the bona fides of the need. After appreciating the evidence of PW1 the courts below concurrently found that nothing tangible has been brought out in evidence to discredit the evidence of PW1 and the courts below have placed reliance RCR.346/16 **:5:** on his evidence. Therefore we do not find any reason to interfere with the findings on bona fides of the need by the courts below. 6. Coming to the first proviso, though the respondent has contended that the petitioner has other vacant rooms of his own in his possession, no evidence has been adduced by the respondent to prove the vacant possession of those rooms. On the other hand, Ext.C1 commission report shows that all the rooms pointed out by the respondent in his evidence are occupied by different tenants. It is needless to say, the initial burden of proof under the first proviso is on the tenant. That apart, in cross-examination the respondent admitted that he has no claim that the petitioner has other vacant shop rooms in his possession. As rightly observed by the Appellate Authority, the aforesaid admission manifests that the respondent does not stick on the contentions raised in evidence under the first proviso to section 11(3). Thus, the courts below are justified in finding that the respondent has miserably failed RCR.346/16 **:6:** to discharge the initial burden of proof contemplated under the first proviso to section 11(3) of the Act. 7. As regards the protection under the second proviso, absolutely there is no evidence other than the oral assertions of the respondent as RW1 while he was in the witness box. It is trite law that the burden of proof under the second proviso cannot be discharged by mere oral assertions only. Though the respondent has contended that he has been conducting a parallel college and 25 teachers are employed under him, nothing was brought out in evidence to substantiate the said contention. In **Shahul Hameed A. v. P.E.Abdu Razak [2016 (5) KHC 820],** this Court held that no tenant can claim protection after hiding his income, and evidence must be produced to prove his approximate income from the trade or business and his approximate expenses for livelihood. Thus, disclosure of income or profit and the expenses for livelihood are indispensable to prove the first limb of the second proviso. As regards the income from the petition schedule building RCR.346/16 **:7:** or living expenses of his family, no evidence has been adduced by the respondent. 8. As regards the second limb of the second proviso, the respondent has not adduced any positive evidence to prove that no other alternative vacant buildings are available in the locality. Certainly, he could have taken out a commission to ascertain the non-availability of alternative buildings in the locality. Similarly, he could have produced the copy of the Building Tax Assessment Register, which is being maintained by the local authority to prove the occupation status of the buildings in the locality. In the absence of any positive evidence to prove the nonavailability of the vacant buildings in the locality, the courts below are justified in finding that the respondent failed to discharge the burden of proof under the second proviso also. Thus, we do not find any kind of illegality, impropriety or perversity in the concurrent findings of the courts below. Hence this Rent Control Revision will stand dismissed. RCR.346/16 **:8:** 9. At last, the learned counsel for the revision petitioner/tenant sought for some time to surrender the petition schedule shop room. The learned counsel for the respondents opposed the said request. But, this Court is of the view that a reasonable time can be given to the tenant to surrender the petition schedule shop room, on terms. The tenant shall surrender the petition schedule shop room within six months from today provided that he could comply the conditions given below within the specified time. - i) The revision petitioner/tenant 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 two weeks from the date of receipt of a copy of this order. - ii) The revision petitioner/tenant shall pay entire arrears of rent to the legal heirs of the landlord or deposit the same before the Execution Court within two weeks from the date of receipt of the copy of this order and he shall continue to pay rent without default. RCR.346/16 **:9:** iii) In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the respondents/legal heirs of the deceased landlord will be at liberty to proceed with the execution. All pending interlocutory applications will stand closed. K.HARILAL, Judge. A.M.BABU, Judge. okb.