V.G. Joseph @ Moni v. Abraham Varghese and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939** **RCRev..No. 333 of 2017 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 15/2009 ON THE FILE OF ADDITIONAL RENT CONTROL APPELLATE AUTHORITY -I ,ALAPPUZHA. DATED 31-08-2015** **AGAINST THE ORDER/JUDGMENT IN RCP 24/2008 OF THE RENT CONTROL COURT ( PRINCIPAL MUNSIFF),ALAPPUZHA DATED 29-07-2009** ## **REVISION PETITIONER(S)/APPELLANT/COUNTER PETITIONER:** **---------------------------------------------------** **V.G.JOSEPH @ MONI AGED 75 YEARS, MONI'S TIME HOUSE, EDATHUA GRAMA PANCHAYAT RESIDING AT VALAYIL CHELLAKKUNNEL, ANAPRAMBAL NORTH P.O, THALAVADY** **BY ADV. SRI.R.SANTHOSH BABU** **RESPONDENT(S)/RESPONDENTS/PETITIONERS:** **--------------------------------------** ## **1. ABRAHAM VARGHESE** **S/O.LATE ABRAHAM VARKEY, AGED 73,KARUKAYIL KALATHIL, EDATHUA P.O, NOW RESIDING IN E-8,CHETAN APARTMENTS, AUDHA ROAD, KIRKEE PUNE-20 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ALEX VARGHESE,S/O. ABRAHAM VARKEY, KARUKAYIL KALATHIL KARUKAYIL HOUSE, SOBHA ROAD, EDAPPALLY TOLL JUNCTION, KOCHI 24** ## **2. ALEX VARGHESE** - **AGED 72,KARUKAYIL HOUSE, SOBHA ROAD, EDAPPALLY TOLL JUNCTION, KOCHI 24** **3. THOMAS VARGHESE** **AGED 70,KARUKAYIL KALATHIL EDATHUA P.O NOW RESIDING IN 12/GEOBLER STREET, POVONS PARK, PIETORS BURGE 0699,REPUBLIC OF SOUTH AFRICA, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ALEX VARGHESE, AGED 72,KARUKAYIL HOUSE, SOBHA ROAD, EDAPPALLY TOLL JUNCTION, KOCHI 24** **4. KURIEN VARGHESE** **AGED 67, KARUKAYIL KALETHIL, EDATHUA P.O, EDATHUA** **5. ELIZABETH CHANDAPILLAI** - **AGED 60,KARUKAYIL KALATHIL EDATHUA P.O, NOW RESIDING IN B 805,SREERAM SHRISTY APARTMENTS, SUMANGALI ANAND NAGAR, SEVASHRAMAM ROAD, HEBAL, BANGALORE 32, REPRESENTED BY HER POWER ATTORNEY HOLDER ALEX VARGHESE, AGED 72, KARUKAYIL HOUSE, SOPBHA ROAD, EDAPPALLY TOLL JUNCTION, KOCHI 24** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & A.M.BABU, JJ.** **.......................................... RCR No. 333 of 2017 ........................................... Dated 13[th] October, 2017** ## **ORDER** ## **K.HARILAL, J.** Revision petitioner is the tenant who is confronting with an order of eviction passed against him under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). The petitioners/landlords filed four Rent Control Petitions against different tenants who are occupying four shop rooms of the petitioners. Altogether there are five shop rooms in the building. The revision petitioners herein are the respondents/tenants in RCP 24/2008. The parties are referred to as in the Rent Control Petition. According to the petitioners, the fourth petitioner who is working as Manager of Catholic Syrian Bank, Puthiyakam branch will retire on superannuation on 31.8.2009 and after his retirement he wants to start a supermarket in the entire building. According to them, they have no other vacant shop rooms in their possession to conduct the supermarket. Thus, they filed four Rent Control Petitions against four tenants who are occupying building bearing door Nos 181 to 184. 2. The respondents/tenants resisted the claim for 2 RCR No. 333 of 2017 eviction under Sec.11 (3) of the Act raising a common contention that the need projected in the petition is a ruse for eviction only. It is also contended that they are entitled to get protection under the second proviso to Sec.11 (3) of the Act as they are mainly depending upon the income which is being derived from the business in the petition schedule shop rooms and no other vacant buildings are available in the locality to shift their business. 3. After considering the evidence on record, the Rent Control Court allowed all the Rent Control Petitions on a finding that the need projected in the petition is bona fide and the tenants are not entitled to get protection under the second proviso to Sec.11 (3) of the Act. Among the four tenants, two tenants preferred appeal before the appellate authority and the respondent is one among them. After re-appreciating the evidence on record, the appellate authority also confirmed the findings of the Rent Control Court except the findings under the second limb of the second proviso. However, the appellate authority also confirmed the order of eviction under Sec.11 (3) of the Act. 4. Heard the learned counsel for the respondent. 5. Though this revision has been filed on various grounds challenging the concurrent findings of the court below, 3 RCR No. 333 of 2017 the learned counsel for the respondent mainly focused his argument on the findings under the bona fides and the second limb of second proviso to Sec.11 (3) of the Act. The learned counsel submits that the petition schedule building was not suitable for conducting the business and there is no other material or evidence which would prove that the fourth petitioner will start the said business after his retirement. 6. Going by the concurrent findings of the courts below, it is seen that in order to prove the bona fides of the need the fourth petitioner for whose need the petition schedule shop rooms were required, was examined as PW1. PW1 has testified the bona fides of the need. In other words, he has testified his mental state expounding his intention to start the business and offered himself for cross-examination. The courts below concurrently observed that even though he was crossexamined at length, nothing has been brought out in evidence to doubt the bona fides of his need. No evidence was adduced to prove that the tenanted premises are not suitable for conducting supermarket. Being a revision this Court is not inclined to re-appreciate the evidence of PW1, particularly when the courts below concurrently placed reliance on his evidence. The respondent has no case that the courts below have omitted to consider any valuable evidence or placed 4 RCR No. 333 of 2017 reliance on any irrelevant evidence or wrong position of law. 7. That apart, it is seen that the respondents raised a contention that non-production of the material to prove the age of the fourth petitioner is fatal. But the appellate authority has meticulously considered the above point and found that in the Rent Control Petition itself it was stated that the fourth petitioner will retire on superannuation on 31.8.2009 and after that he wants to start supermarket. But, the respondent has not challenged the said contention in his pleadings. So, we also do not find any reasons to doubt their contention that the 4[th] petitioner wants to start a supermarket to eke of his livelihood after his retirement, particularly, when he will not get pension after his retirement. The respondent has not raised a contention that the petitioners have other buildings in their possession to start the supermarket. So, the claim for eviction under Sec.11 (3) of the Act is not hit by the first proviso. 8. Coming to the next point, the Rent Control Court had found that the respondent has not discharged the burden of proof under the second limb of second proviso to Sec.11 (3) of the Act and the appellate authority confirmed the said findings of the Rent Control Court. As regards the first limb of second proviso both courts concurrently found that the respondent has miserably failed to prove that they are depending on the 5 RCR No. 333 of 2017 income from the business in the petition schedule shop rooms to eke out their livelihood. The evidence available on record would prove that they are occupying the shop room and conducting business. As rightly held by the courts below the said evidence is not sufficient to discharge the burden of proof of the tenant under the first limb of the second proviso to Sec.11 (3). Unless the quantum of income or profit received by him and the quantum of amount required towards his living expenses have come up in evidence it cannot be said that the tenant is mainly depending upon the income from the business in the petition schedule shop room. The above view is supported by the decision of this Court in **Shahul Hameed vs Abdul Rasaq (2016 (5) KHC 820)** . Similarly, no evidence was forthcoming from the respondents to prove that no other alternative buildings are available in the locality to shift their business. Therefore the appellate authority is justified in denying the protection under the second proviso to Sec.11 (3) of the Act. No other point arises for consideration in this revision. In the absence of any kind of illegality or impropriety in any of the findings whereby the courts below concurrently granted an order of eviction under Sec.11 (3) of the Act, this revision fails and is dismissed accordingly. 9. The learned counsel for the respondent prayed for 6 RCR No. 333 of 2017 granting one year time to vacate the petition schedule shop room. We grant eight months' time till 13.6.2018 to vacate the premises subject to the following conditions. We direct the parties to bear their respective costs. He shall file an affidavit expressing an undertaking to vacate the premises on or before 30.6.2018. It shall also be undertaken in the same affidavit that no further time will be sought under any circumstance for vacating the tenanted premises. The affidavit shall be filed before the executing court, within a period of three weeks from the date of receipt of the copy of this order. The entire arrears of rent, if any, shall be paid within a period of two weeks from the date of receipt of the copy of this order. Rent shall be paid on or before the due date, till vacation of the tenanted premises. **K.HARILAL Judge** **A.M.BABU Judge** _sks/_ 7 RCR No. 333 of 2017