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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE K.HARILAL**
**&**
**THE HONOURABLE MR.JUSTICE C.S.DIAS**
**MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941**
## **RCRev..No.28 OF 2020**
**AGAINST THE ORDER/JUDGMENT IN RCA 114/2017 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT & SESSIONS COURT - III), THALASSERY AGAINST THE ORDER/JUDGMENT IN RCP 31/2016 OF PRINCIPAL MUNSIFF COURT ,KANNUR**
## **REVISION PETITIONER/S:**
**VALIYATHANAL SHAMEER, AGED 41 YEARS**
**S/O. A.K. MUSTHAFA, COSMOS PLASTICS AND CROCKERY, NEAR ANGANVADI, KAZANAKOTTA, P.O. CIVIL STATION, KANNUR-670001.**
## **BY ADV. SRI.K.RAJESH SUKUMARAN**
## **RESPONDENT/S:**
**FAYIZA HAMZA,**
**W/O. K.P. HAMZA, AGED 52 YEARS, RESIDING AT SARAS, NEAR ANGANVADI, KAZANAKOTTA, P.O. CIVIL STATION, KANNUR-670001.**
## **R1 BY ADV. K.R.AVINASH(KUNNATH) (CAVEATOR)**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **ORDER**
## **C.S.DIAS, J.**
The revision petitioner was the appellant in RCA No.114/2017 on the file of the Rent Control Appellate Authority (in short 'Appellate Authority'), Thalassery. The respondent in this revision petition was the respondent in the above appeal.
2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Kannur, in RCP No.31/2016. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition ( RCP) as 'petitioner' and 'respondent'.
3. The petitioner had filed the RCP against the respondent, inter alia, pleading as follows: The petition schedule building (for brevity, hereinafter referred to as 'building') was leased by the petitioner
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to the respondent, on 18.9.2006, for a monthly rent of Rs 2,500/-. The husband of the petitioner has returned from Gulf for good. He is presently unemployed. He desires to start a distribution agency in consumer articles. The petitioner and her husband do not own other vacant in their any building possession. The husband of the petitioner is depending on her. The petitioner bona fide requires vacant possession of the building, for her husband to start the business. The respondent is not doing any serious business in the building. He has other sources of income. Hence, an order of eviction may be passed against the respondent under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act').
4. The RCP was resisted by the respondent, who filed a counter statement, inter alia, pleading as follows: The tenancy is admitted. The allegation that the husband of the petitioner does not have a job and
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that the petitioner requires the building for her husband to start a business is false. The allegation that the husband is depending on the petitioner is also false. The petitioner as well as her husband have other vacant buildings in their possession. The respondent is doing business in plastic goods and crockery at Kannur, and that the building is used as godown for his business. The income generated from the business is his only source of livelihood. There are no other vacant buildings in the locality. The RCP is only a ruse for eviction. Therefore, the RCP may be dismissed.
5. The husband of the petitioner was examined as PW1 and Exts A1 to A6 were marked through him. The respondent was examined as RW1.
6. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the building under Sec.11(3) of the Act.
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7. Aggrieved by the impugned order passed by the Rent Control Court, the respondent preferred RCA No.114/2017 before the Appellate Authority. The Appellate Authority by the impugned judgment dated 20.8.2019 dismissed the appeal by confirming the order of eviction passed by the Rent Control Court.
8. It is challenging the judgment passed by the Appellate Authority in RCA No.114/2017 and the order passed by the Rent Control Court in RCP No.31/2016, that this Rent Control Revision is filed.
9. Heard Sri.Rajesh Sukumaran.K, the learned counsel for the revision petitioner.
10. It is seen in the impugned judgment of the Appellate Authority that the petitioner/landlord had died during the pendency of the appeal. The legal representatives of the petitioner were impleaded as supplemental respondents 2 to 6. However, the said supplemental respondents are not impleaded in this memorandum of revision petition, but only the
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deceased petitioner is shown as the respondent in this revision petition. Be that as it may, as we have decided to dispose of the revision petition, on its merits, at the admission stage, we are not passing any order to bring the supplementary respondents also on record.
11. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the building under Sec.11 (3) of the Act. According to him, the petitioner has not proved her bona fide need. It was impossible for the courts below to arrive at the impugned findings, as the need projected by the petitioner was not bona fide. The courts below have also ignored the fact that there were vacant buildings in the locality, which were sufficient for the petitioner to commence her proposed business. He prayed that the revision petition may be allowed by setting aside the concurrent findings of
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the courts below.
12. The question that arises for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below, ordering eviction of the respondent under Sec.11 (3) of the Act.
13. It is trite law that, this Court while exercising its revisional jurisdiction under Sec.20 of the Act is not bound to re- appreciate the entire pleadings and evidence on record. This Court is only permitted to examine the legality and correctness of the impugned judgment/order. We have gone through the pleadings as well as the oral testimonies of PW1 and RW1 and Exts A1 to A6.
14. It is an undisputed, that the revision petitioner/respondent has admitted the
landlord/tenant relationship. The respondent also does not dispute the fact that the petitioner's husband
(PW1) has returned from Gulf for good. The
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petitioner has in the pleadings, in unequivocal terms, pleaded that her husband desires to start a business in consumer articles. In order to prove the bona fides, the husband of the petitioner was examined as PW1. He has empathetically deposed that he has no avocation and is leading an idle life. He desires to start a distribution agency in consumer goods in the building. His idea is to start distribution of goods items like jam, squash and pickles.
15. It is settled law in **Deep Chandra Juneja vs Lajwanti Kathuria [ AIR 2008 SC 3095]** that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the need put forward by the landlord is genuine or not, and is not a ruse for eviction.
16. The Supreme Court in **Sarla Ahuja vs United India Insurance Company Ltd [(1998) 8 SCC 119],** held that when a landlord asserts that he
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requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide.
17. In the case on hand, the evidence of PW1 read with the pleadings of the petitioner prove that the petitioner's husband has returned from Gulf for good and he intends to establish a business of his own. Even though PW1 was cross-examined at length, nothing was brought out to discredit his oral testimony. In addition to the oral testimony, Ext A6 was produced by PW1, a copy of his passport, to substantiate that he has returned back from Gulf. In the aforesaid circumstances, we are convinced that the courts below have rightly come to the conclusion that the need projected by the landlord is bona fide,
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that is for PW1 to start a business.
18. Coming to the first proviso to Sec.11 (3) of the Act, we find that, other than for the interested oral testimony of the respondent-RW1, no material has been produced on record to prove his assertion. His vague statement is not sufficient to seek protection under the first proviso to Sec.11(3) of the Act. The respondent ought to have established by cogent evidence that the petitioner has vacant buildings in her possession which is sufficient for her to start her proposed business. Unfortunately, the respondent has miserably failed to establish the said aspect.
19. With reference to second proviso to Sec.11 (3) of the Act, it is trite that the entire burden of proof is on the respondent to establish that he is entitled to the benefit under the two limbs under Sec.11 (3) of the Act.
20. It is the case of the petitioner that the respondent is not carrying on any serious business in
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the building. This fact is admitted by RW1 in his cross-examination, that he is using the building only for the purpose of a godown. He is in fact in possession and occupation of a building in Kannur town, where he is doing business of plastic and crockery articles. Therefore, it is discernible from his evidence that he is not depending on the income generated from the business conducted in the building. The respondent has also failed to produce document to substantiate the income any being generated from the building. In the aforesaid circumstances, we are of the view that the respondent has failed to prove that he is entitled to any protection under the second proviso to Sec.11(3) of the Act.
21. In the totality of the facts and circumstances of the case, pleadings and evidence on record, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered eviction of the respondent under Sec.11 (3) of the
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Act. We confirm the concurrent findings of the Rent Control Court in RCP 31/2016 and the Appellate Authority in RCA No.114/2017 .
22. At the said point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the building. Taking into consideration the fact that the RCP was filed in the year 2016 and the impugned order was passed by the Rent Control Court on 24.7.2017, and subsequently, the Rent Control Appeal was filed in the year 2017, we feel that the revision petitioner has got sufficient time to vacate the building.
22. Having regard to the facts and circumstances of the case, we deem it appropriate to grant the revision petitioner eight months' time to vacate the building on the following conditions:
(1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the
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Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within eight months from today.
(2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month 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, 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 landlord will be at liberty to proceed with the execution of the eviction order.
In the result, this revision petition is accordingly dismissed.
sd/-
**K.HARILAL JUDGE**
sd/-
**C.S.DIAS JUDGE** sks/5.2.2020
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