Vayanayi Sreejith v. Kuttiambeth Abdul Khader and Kuttiambeth Abdul Latheef

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942** ## **RCRev..No.90 OF 2020** **AGAINST JUDGMENT DATED 30-11-2019 IN RCA 71/2012 OF THE RENT CONTROL APPELLATE AUTHORITY, ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THALASSERY AGAINST THE ORDER DATED 31-10-2011 IN RCP 180/2008 OF THE RENT CONTROL COURT, KANNUR** ## **REVISION PETITIONER/ APPELLANT/ RESPONDENT :** **VAYANAYI SREEJITH, AGED 55 YEARS, S/O C.P.BHARATHAN, ROOM NO 1719, PLAZA JUNCTION, FORT ROAD, KANNUR.** **BY ADVS. SRI.C.AJITH KUMAR SHRI.RAJEEVU L.G.** ## **RESPONDENTS/ RESPONDENTS/ PETITIONERS :** **1 KUTTIAMBETH ABDUL KHADER, AGED 56 YEARS, S/O SAINABA, RESIDING AT KUTTIAMBETH HOUSE, ORIKKARA, KADAMBUR AMSOM DESOM, KANNUR 2 KUTTIAMBETH ABDUL LATHEEF, AGED 47 YEARS, S/O SAINABA, RESIDING AT KUTTIAMBETH HOUSE, ORIKKARA, KADAMBUR AMSOM DESOM, KANNUR** **R2 BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.90 OF 2020** 2 ## **ORDER** Dated this the 6th day of October 2020 ## **Bechu Kurian Thomas, J.** In the heart of Kannur town, one Sri.Eramu had a property on which situates a building consisting of six rooms spread over two floors. Eramu died. His legal heirs applied for reconstructing the building. The local authority approved the plan. After obtaining approval, the landlords filed six petitions for eviction under Sections 11(3), 11(4)(iv) and 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act,1965 [hereinafter referred to as, 'the Act']. 2. During the course of the proceedings before the Rent Controller, the claim for eviction under Section 11(4)(iv) of the Act was not pressed. However, the claim for eviction under Section 11(3) was allowed in respect of all the six cases and in respect of two cases, claim under Section 11(4)(v) was also allowed. While five of the tenants vacated the respective buildings pursuant to the order of eviction by the Rent Control Court, one tenant deemed it fit to prefer an appeal. **RCRev..No.90 OF 2020** 3 3. RCA No.71/2012 was filed by the present revision petitioner, which was dismissed by the Rent Control Appellate Authority by judgment dated 30.11.2019. The tenant in RCP No.180/2008 of the Rent Control Court, Kannur has preferred this revision petition under Section 20 of the Act. 4. Since we are concerned in the present revision petition only with the claim put forth in RCP No.180/2008, the facts relevant to the said cased alone is narrated. It was stated that the 2[nd] petitioner before the Rent Controller was at the time of filing of the petition working in Saudi Arabia and that he intended to return to Kannur and start a provisional-cum-stationery business after reconstructing the building. Landlords pleaded that the tenant was not depending upon the income derived from the scheduled building where he is conducting a STD Booth and a Photostat Copying centre that there are other buildings available in the locality for the tenant to shift his business. The tenant, on the other hand denied the claim of the landlords and alleged that the need projected is not bona fide and also that he is depending on the building for his business which is his only sources of income. 5. The Rent Control Court found that the need alleged is bona fide and that the tenant failed to produce any evidence to show **RCRev..No.90 OF 2020** 4 that he is depending solely on the income from the business conducted in the scheduled building. It was also found that the tenant failed to prove the non-availability of other buildings in the locality. 6. In the appeal preferred as RCA No.71/2012 before the Rent Control Appellate Authority, Thalassery, the tenant canvassed that the need projected is not bona fide especially since the claim of eviction on the ground of reconstruction was withdrawn by the landlord which indicate a state of mind that was not bona fide. It was further claimed that the 2[nd] proviso to Section 11(3) of the Act was not appreciated in the proper light. Rejecting the aforesaid contentions, the Appellate Authority confirmed the findings of the Rent Controller and dismissed the appeal. This revision is filed challenging the legality, regularity and propriety of the orders issued by the Appellate Authority as well as the Rent Controller. 7. Shri.C.Ajithkumar, the learned counsel for the revision petitioner vehemently contends that the Appellate Court as well as the Rent Controller failed to properly appreciate the facts and circumstances in the correct perspective. The main thrust of the learned counsel's submissions was that the 2[nd] proviso to Section 11(3) of the Act ought to have been found in favour of the tenant, since, according to him, the tenant had discharged the burden by **RCRev..No.90 OF 2020** 5 deposing that he had enquired with Mr.Basheer of Rabi Towers. It was also argued that there was nothing to show that the revision petitioner had any other business so as to warrant a finding that he was not depending on the income from the building for his livelihood. The learned counsel submitted that the finding of the Appellate Authority as well as the Rent Controller regarding the 2[nd] proviso to Section 11(3) of the Act was inherently improbable and therefore perverse, warranting interference in exercise of the powers under Section 20 of the Act. 8. Adv.Abdul Raoof Pallipath, the learned counsel for the respondents (landlords) on the other hand contended that the bona fide need of the landlords is evident from the fact that tenants in those buildings which were the subject matter in the five other eviction petitions vacated pursuant to the order of the Rent Controller and after obtaining vacant possession in 2012, the landlords have commenced business in 2012 itself. According to the counsel there is nothing on record to show that the claim put forth by the landlords is not bona fide. The learned counsel also referred to the evidence of the tenant regarding the 2[nd] proviso to Section 11(3) of the Act and submitted that the burden upon the tenant had not been discharged by him and the courts had correctly appreciated the facts and law. In **RCRev..No.90 OF 2020** 6 circumstances, it is submitted that an interference by this Court under Section 20 of the Act is not called for. 9. We have considered the rival contentions. The building contains 2000 Sq.ft. spread over to two floors with 1200 Sq.ft. on the down stairs and 800 Sq.ft on the upper floor. The revision petitioner is in possession of Building No.CWXIX/719. The landlords' specific case before the Rent Controller while seeking eviction was that he needs the entire building for his proposed business and that he intended at that point of time to reconstruct the building and set up his business in the re-constructed building. However, since the plan obtained expired during the course of the proceedings for eviction, he dropped the idea for reconstruction and pursued the claim for eviction under the ground of bona fide need. Ext.A5 was the building permit originally obtained which expired on 20.02.2011 and thereafter when it was sought to be renewed, the Kannur Municipality by Ext.A13 dated 28.07.2011 refused to renew the plan. Thus the facts that arises in the case clearly shows that the withdrawal of the claim under Section 11(4)(iv) by the landlords was on account of the situation that arose during the consideration of the petition for eviction and hence the same does not affect the need put forth by the landlords. In fact, admittedly, the landlords have already started their business in the rooms that they **RCRev..No.90 OF 2020** 7 obtained vacant possession, pursuant to the other petitions for eviction. This is a circumstance that this Court cannot ignore. It goes to prove that the landlords pursuing a bona fide claim to commence their business after obtaining eviction of the tenant. The findings by both the courts on the bona fide need of the landlords therefore cannot be interfered with. 10. The 2[nd] proviso provides a protection for the tenant from eviction, if he depends on the business conducted in the building for his livelihood and there are no other vacant buildings available in the locality for the tenant to shift his business. It is settled that both the limbs of the 2[nd] proviso to Section 11(3) ought to be proved by the tenant. 11. Coming to the evidence in the case, it is seen that the tenant has not proved by satisfactory evidence that he is depending upon the income from the business conducted in the scheduled building for his livelihood. Other than few electricity bills and professional tax receipts, no document has been produced by the tenant to show his income or his dependence. In the absence of any evidence to prove his dependence on the business conducted in the scheduled building for his livelihood, we find that the Rent Control Court as well as the Rent Control Appellate Authority were justified in **RCRev..No.90 OF 2020** 8 coming to the conclusion that the tenant failed to prove that the tenant is entitled to the protection of the 2[nd] proviso to Section 11(3). 12. It is also relevant to mention that even as regards the 2[nd] limb of the 2[nd] proviso to Section 11(3) of the Act, the tenant was not successful in proving that there were no other buildings in the locality. He has not examined any independent witness nor has he enquired with the various owners of buildings around the locality to prove the absence of any vacant shop rooms in the locality. The decisions in **George Pylee v. K.K.Sabu [2007(4) KHC 155], Francis v. Sreedevi Varasiar [2003 (2) KLT 230 (FB)]** and in **Thanuja Sunderdas v. Sisirkumar Raj [2008 (4) KLT 241]** have held that the burden is on the tenant to establish the requirements for the protection contained in the 2[nd] proviso to Section 11(3) of the Act 2/1965. The tenant having miserably failed to prove the 2[nd] limb of the 2[nd] proviso to Section 11(3) of the Act, both the courts were perfectly justified in denying the protection of the 2[nd] proviso to Section 11(3) of the Act to the tenant. We do not find the impugned judgment to be improper, irregular or illegal, warranting interference by this Court in its revisional jurisdiction. The revision is therefore dismissed. The learned counsel for the tenant on being informed of the **RCRev..No.90 OF 2020** 9 disinclination of this Court to interfere with the order of eviction sought for a breathing time of 12 months to vacate the scheduled building. Having considered the facts and the situation of the tenant as well as that of the landlords, we deem it fit to grant a period of nine months from today to the tenant to vacate the scheduled building on condition that the tenant files an undertaking before this Court within a period of four weeks from today stating that he shall vacate the scheduled building positively within nine months from today. In the event of failure to file the undertaking as aforesaid, the above mentioned breathing time will not be available to the tenant. With the aforesaid observations, the revision petition is dismissed. Sd/- ## **S.V.BHATTI, JUDGE** Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM