Thomas Joseph v. V.A. Raveendranathan Achari

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940 ## RCRev..No. 416 of 2017 AGAINST JUDGMENT IN RCA 2/2014 of RENT CONTROL APPELLANTE AUTHORITY, KOTTAYAM DATED 02.08.2017 AGAINST THE ORDER IN RCP 32/2012 of RENT CONTROL COURT, CHANGANACHERRY DATED 30-11-2013 ## REVISION PETITIONER/APPELLANT/RESPONDENT: THOMAS JOSEPH, AGED 60 YEARS, S/O. JOSEPH,LUCKY LOTTERY CENTRE, NEAR MUNICIPAL OFFICE, CHANGANACHERRY, KOTTAYAM BY ADV. SRI.MATHEW JOHN (K) ## RESPONDENT/RESPONDENT/PETITIONER : V.A.RAVEENDRANATHAN ACHARI, AGED 77 YEARS, S/O. C.A AYYAPPANKUTTY ACHARI, VALIAPARAMPIL LAKSHMI NIVAS, PERUNNA, CHANGANACHERRY, KOTTAYAM 686 101. BY ADV. SRI.ABU MATHEW THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR 416/2017 2 ## **O R D E R** ## Annie John, J. The respondent herein filed a petition under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 ('the Act' for short) to evict the petitioner herein from the tenanted premises. On facts, the rent control court allowed the said petition. Being aggrieved by the same, an appeal was preferred before the appellate authority; but the appellate authority also dismissed the appeal. Hence, this revision petition is filed. 2. According to the revision petitioner, 3 rooms, including the petition schedule room on the ground floor of the building, had been obtained by him as per sale deed No. 1466/1994 of SRO, Changanassery. The petition schedule shop room is let out to the revision petitioner/tenant for conducting a shop room under the name and style of 'Lucky Lottery Centre'. The monthly rent of the petition schedule room is Rs.750/-. According to him, he _bona fide_ required the entire building, including the petition schedule shop room. The tenant has been continuing occupation of the petition schedule shop room from the year 2002 as per the RCR 416/2017 3 lease agreement executed on 01.11.2002. Eventhough the period of tenancy expired, the tenant did not vacate the premises. The petitioner is in _bona fide_ need of the petition schedule shop room for the use of his own occupation and for the occupation of the members of his family to conduct a textile shop in the petition schedule shop room for the income of the family. Accordingly, the respondent/landlord is not in possession of any other vacant buildings in the same city or town for the purpose of conducting the proposed textile business. There are vacant buildings available for lease in the same city which can be used by the tenant for carrying own his business. Further, the respondent/landlord has stated that the tenant is not depending mainly on the income from the business conducted in the petition schedule room and therefore, no inconvenience or hardship will be caused to the tenant, if he is evicted from the petition schedule shop room. The other tenants, who occupy the other rooms, also have to be evicted for the respondent's own use. The respondent issued a lawyer notice to the revision petitioner/tenant requiring him to terminate the tenancy and surrender vacant possession of the shop room. 3. _Per contra_ , the revision petitioner has taken a contention that the _bona fide_ need of the RCR 416/2017 4 respondent/landlord is a ruse for eviction only. The respondent has not taken any steps to evict the other tenants near the petition schedule shop room. The petition schedule shop room is an old one and is not suitable for textile business. The lottery business in the petition schedule shop room is the sole livelihood of the revision petitioner. 4. According to the respondent/landlord, he _bona fide_ required the petition schedule shop room for his own _bona fide_ need for conducting a textile business. The respondent, while examined as PW1, has deposed before court in accordance with the pleadings in the petition. He has produced Ext.A1 sale deed and Ext.A2 rent deed executed by the tenant in favour of the respondent. On going through Ext.A3, it is revealed that he requested the tenant to vacate the premises. The respondent's son-in-law was conducting a business at Cherthala and he was evicted as per Ext.A6 eviction order and therefore, he wanted to earn income from other sources and accordingly, he decided to evict the revision petitioner/tenant for using the petition schedule shop room for conducting a textile business by his son-inlaw. 5. The learned counsel for the revision petitioner has RCR 416/2017 5 argued that there is absolutely no evidence before court that the son-in-law of the respondent/landlord had a business at Cherthala and the petition schedule shop room is required for own occupation of the son-in-law for starting the textile business. The learned counsel for the revision petitioner argued that the respondent or his family members are not familiar with the textile business. It is also brought to our notice that the respondent has filed RCP No. 31 of 2012 against one of the tenants of the aforesaid building and the same was withdrawn based on the compromise entered into between the respondent and the tenant. He has also filed RCP No. 25 of 2013 against another tenant, Muhammad Ali. From Ext.A9, it is clear that the version of the respondent that he intends to start the textile business by vacating the tenants from the petition schedule property, is true. The revision petitioner/tenant has produced Ext.B1 agreement, which was executed between the respondent and Muhammed Ali for the sale of the petition schedule shop room. It is also borne out that the said Muhammad Ali has instituted a suit for getting the advance amount. From the above, it is clear that the agreement did not materialise and therefore, the argument on the side of the revision petitioner that the respondent has filed the eviction petition for the RCR 416/2017 6 purpose of selling of the petition schedule shop room, cannot be accepted. The learned counsel for the revision petitioner argued that the son-in-law of the respondent is not a member of his family or a dependent on the respondent/landlord. In the pleadings as well as the evidence adduced by the respondent, he has made it clear that he is in dire need of the petition schedule shop room for conducting a business by his son-in-law for generating income to his family. It is well settled that being a tenant, the revision petitioner is not expected to dictate the terms of requirement and advice him what kind of business he should do in the petition schedule building. It is also settled principle of law that the tenant cannot question the suitability of the premises for the landlord's business purposes. In _Madhavan v. Pathumabi_ [2005 KHC 993], it is held that the tenant cannot have a dictatorial role in the assessment of the needs of the landlord. ## 6. The respondent has also deposed that his daughter is familiar with the textile business as she was engaged in textile work at Cherthala. But this fact has not been challenged by the revision petitioner. PW2, the son-in-law of the respondent, has deposed that he was evicted by the Rent Control Court, Cherthala and the same was upheld by the RCR 416/2017 7 Rent Control Appellate Authority in RCA No. 12 of 2010 and this fact is proved on production of the order produced by the respondent. Therefore, the revision petitioner cannot contend that the respondent has no _bona fide_ need of the petition schedule shop room. It is proved by the respondent that he requires the petition schedule building for conducting a textile business by his son-in-law. 7. The revision petitioner has also contended that there is no alternative building in the locality to shift his business and he is depending upon the income from the shop room for his livelihood. From the evidence, it is borne out that his wife is a teacher and she is receiving pension. His son is a trainee in MRF Limited and he is having salary also. As per the second proviso to Section 11(3) of the Act, the tenant is to be proved that he is depending upon the income which derives from the business being conducted in the petition schedule shop room for his livelihood. In fact, the revision petitioner has not produced any account to show that he is fully depending upon the income which derives from the petition schedule shop room. The revision petitioner has failed to prove the burden of proof as per second proviso to Section 11(3) of the Act. 8. The next point to be considered is whether the RCR 416/2017 8 revision petitioner is entitled to the benefit of the second limb of the second proviso to Section 11(3) of the Act. The second proviso would state that if there is no sufficient alternative accommodation in the locality, the landlord is not entitled to get the eviction on the ground of _bona fide_ need under Section 11(3) of the Act. A Commissioner was taken out at the instance of the respondent and he reported that there are vacant rooms available in the locality for rent and the same is suitable for the business of the revision petitioner. The revision petitioner has not adduced any evidence to prove that alternative accommodation is not sufficient for his business. In the decision in _Shahul Hameed A. v. P.E Abdul Razaq_ [2016(5) KHC 820], it is held that the burden to prove the ingredients of both the limbs of the second proviso to Section 11(3) of Act is on the tenant. There is absolutely, no evidence before us to prove that the revision petitioner is fully depending upon the income which derives from the business being conducted in the petition schedule building for his livelihood. Moreover, there are other suitable rooms available in the locality to shift his business. The revision petitioner has failed to prove the first and second limb of Section 11(3) of the Act. Accordingly, we are of the view that the Rent Control Court as well as the RCR 416/2017 9 Appellate Authority has rightly come to the conclusion with the regard to the _bona fide_ requirements of the respondent/landlord to evict the revision petitioner/tenant. Therefore, the revision petition is devoid of any merit and no interference is warranted in this case. In the result, the revision petition is dismissed. However, the revision petitioner is given time upto 31.12.2019 to vacate the petition schedule shop room on the following conditions: - _(i) The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated before 31.12.2019._ - _(ii)The respondent/tenant shall deposit the entire arrears of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default._ RCR 416/2017 10 - _(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioners/ landlords will be at liberty to proceed with the execution of the eviction order._ sd/- **K.Harilal, Judge.** sd/- **Annie John, Judge.** Kav/rv