Vengalath Ramachandran v. Manikkam Veettil Kunhamina

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** **RCRev.No. 165 of 2018** **AGAINST THE ORDER DATED 07-02-2018 IN RCA 174/2016 of RENT CONROL APPELLATE AUTHORITY/ ADDL.DISTRICT JUDGE, KOZHIKODE-III** **AGAINST THE ORDER DATED 23-05-2016 IN RCP 37/2014 of THE RENT CONTROLLER/ MUNSIFF COURT, KOYILANDY** ## **REVISION PETITIONER/ APPELLANT/ RESPONDENT :** **VENGALATH RAMACHANDRAN, AGED 56 YEARS, S/O. ANDI, KURUVANGAD AMSOM, PERUVATHOOR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 305.** **BY ADV. SRI.MOHANAN V.T.K.** ## **RESPONDENT/ RESPONDENT/ PETITIONER :** **MANIKKAM VEETTIL KUNHAMINA, AGED 76 YEARS, D/O. MARIYAM HAJJUMMA, VIYYUR AMSOM, KOLLAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 305.** **BY ADV. SRI.R.K.MURALEEDHARAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev.No. 165 of 2018** 2 ## **ORDER** ## **Annie John, J.** This revision petition is filed by the tenant against the order of eviction passed in RCA.No.174/2016 before the Rent Control Appellate Authority/ IIIrd Additional District Court, Kozhikode. The eviction was ordered under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control Act, 1965) [Hereinafter referred to as, 'the Act']. 2. The revision petitioner is the respondent in RCP.No.37/2014 before the Court of the Rent Controller/ Munsiff, Koyilandy. The case was that the petition schedule building was entrusted to one Andi, the father of the respondent/ tenant and the rate of rent prevailing was Rs.800/- per month and the tenant kept the rent in arrears from 2007 January onwards and the petitioner's daughter Fathima Zakariya wants the **RCRev.No. 165 of 2018** 3 shop room for starting a ready made business. 3. Per contra, the appellant/ tenant filed counter statement contending that he is conducting old silver business in the room and it is the source of his livelihood. Moreover, no shop rooms are available for starting the business. 4. The petitioner's daughter was examined as PW1 and the respondent was examined as RW1 and Exts.A1 to A7 and B1 to B15 were marked. On conclusion of trial, the Rent Control Appellate Authority passed orders directing to surrender the shop room to the landlord. The appellant/ tenant filed RCA.No.174/2016 before the Rent Control Appellate Authority/IIIrd Addl. District Judge, Kozhikode. The said appeal was also dismissed by confirming the order of eviction issued by the Rent Control Court. Highly aggrieved by the order of the Appellate Authority, this revision has been preferred on the ground that the finding entered by the Rent Control Court is not on the basis of **RCRev.No. 165 of 2018** 4 the evidence adduced by the appellant/ tenant. 5. In fact, the daughter of the respondent is a well placed housewife and her husband is earning huge income and maintaining her. Though she had a certificate in Fashion Technology, she had not done any work so far. So the _bona fide_ need is only a ruse to evict the tenant. Moreover, the Rent Control Court ought to have found that the tenant is fully depending on the income derived from the business being held in the shop room and the appellant is ready to pay the enhanced rate of rent also. There is no room available in the near vicinity of the petition schedule shop room. 6. The Rent Control Petition was filed by the respondent/ landlord seeking eviction of the revision petitioner on the ground that her daughter Fathima Zakariya _bona fide_ requires the petition schedule shop room, for the purpose of conducting a ready made shop. The daughter of the landlord was examined as PW1. She has testified **RCRev.No. 165 of 2018** 5 that she has no avocation of her own and she is qualified in Fashion Technology. So, she intends to start ready made shop in the petition schedule room as well as in room Nos.572 & 573, which is situated on the upstair of the building. Exts.P6 and P7 are the certificates obtained by the PW1 in order to establish that she is qualified in Fashion Technology. She has already moved RCP.No.38/2013 for eviction of the tenant from room Nos.572 and 573, which was already allowed by the Rent Control Court and the eviction of the tenants are ordered. According to the landlord, her daughter is fully depending upon her for the above said building. It is proved that the husband of PW1 is working abroad and used to send amount for the maintenance of PW1 and her children. 7. The main argument on the side of the counsel for the revision petitioner is that PW1 has sufficient financial set up. So, she does not need to start the shop on ready made business. But it is well settled that the sufficient **RCRev.No. 165 of 2018** 6 financial background is not a bar for a person, who seeks eviction from the petition schedule shop room. In fact, PW1 in this case is professionally qualified in Fashion Technology and there is no bar for her to commence a new venture, to which her qualification exists. There is no dispute on the part of RW1 revision petitioner that PW1 had insufficient funds to start a new business. It has also come out in evidence that the petition schedule shop room situates in the heart of Koyilandi town abutting to the National Highway. So, definitely it helps the prospects and scope of the business. It has also come out in evidence that the landlord had not obtained license and plan for the proposed business. But it is not a ground to deny the eviction as the landlord can anticipate the time lag which the landlord would get vacant possession of the shop rooms, in which they intend to start business. 8. Another contention of the revision petitioner is that the respondent has no previous **RCRev.No. 165 of 2018** 7 experience in conducting the business. It has held in _**George v. Stanley [2014 (4) KLT SN 23(C.No.21) ]**_ that "it is not a requirement for the landlord to conduct a business that he should have previous experience". ## 9. It has held in _**Panoli Surendran v.**_ _**P.M.Mammutty [2009 (2) KLJ 136]**_ that the burden of proof of establishing that the landlord has ownership and possession of another building in the same city is on the tenant, who claims the benefit of the first proviso to Sec.11(3) of the Act. 10. But, no evidence was forth coming to establish that the respondent/ landlord has got any other building in the same city. It was also contended by the revision petitioner that he is mainly depending upon the income derives from the business carried on in the petition schedule building and no other shop rooms are available in the near proximity to shift the business. During the evidence, RW1 could not able to produce any **RCRev.No. 165 of 2018** 8 document from any authority concerned to prove that there are no other vacant rooms available in the near vicinity to shift his business. Further, he has not adduced by evidence to establish that he is fully depending upon the income derives from the business being conducted in the petition schedule shop room. So he failed to establish the first and 2[nd] proviso to Section 11(3) of the Act. 11. There is an order of eviction under Section 11(2)(b) of the Act. The learned counsel for the revision petitioner/ tenant has submitted that he has paid the rent, but has not paid the interest and costs. The eviction ordered under Section 11(2)(b) of the Act has to be confirmed. 12. Section 11(2)(b) of the Act reads thus :- Sec.11(2)(b). If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the **RCRev.No. 165 of 2018** 9 building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. Provided that an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six percent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. 13. So, it is admitted that the revision petitioner has failed to pay the interest and cost of the arrears of rent. Therefore, the Rent Control Court has ordered eviction under Section 11(2)(b) of the Act and we do not find any ground to interfere with the order of the Rent Control Appellate Authority regarding the finding entered under Section 11(2)(b) of the Act. **RCRev.No. 165 of 2018** **==> picture [12 x 8] intentionally omitted <==** 14. On the basis of the arguments and after evaluating the entire evidence, we have a considered opinion that no interference is warranted in the finding entered by the Rent Control Appellate Authority as we do not find any illegality or impropriety in the order of eviction passed by the court below. Hence this revision is devoid of any merit and it is dismissed. The learned counsel for the revision petitioner seeks one year time to vacate the tenanted premises. Now the question to be considered is whether time is to be granted to the petitioner to vacate the premises? As agreed by both sides, we are inclined to grant eight months' time to vacate the petition schedule 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 Rent Control Court, as the case may be, expressing **RCRev.No. 165 of 2018** 11 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 respondent/ landlord will be at liberty to proceed with the execution of the eviction order. **==> picture [32 x 11] intentionally omitted <==** **K.HARILAL** Sd/- **JUDGE** ## **ANNIE JOHN** RKM