V.J. Tomy & George Viju v. O.U. Varghese & Joy Thomas Antony alias Thomson (RCRev. 394/2018 & RCRev. 397/2018), High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** **RCRev..No. 394 of 2018** **AGAINST JUDGMENT IN RCA 88/2016 DATED 16.07.2018 OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM A PROCEEDING FROM R.C.P.NO.50/2015 OF IIIRD ADDITIONAL MUNSIFF AND RENT CONTROL COURT, ERNAKULAM DATED DATED 17-10-2016** ## **REVISION PETITIONERS/RESPONDENTS/RESPONDENTS :** **1 V.J. TOMY, AGED 58 YEARS S/O. VALIYAPARAMBIL JOSEPH, VALIYAPARAMBIL HOUSE, PALARIVATTOM, POONITHURA VILLAGE, KANAYYANNUR THALUK.** - **2 GEORGE VIJU, AGED 46 YEARS S/O. VALIYAPARAMBIL FRANCIS, BUSINESS, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, KANAYYANNUR THALUK.** **BY ADVS.** **SRI.R.SANJITH** **SMT.C.S.SINDHU KRISHNAH** ## **RESPONDENTS/APPELLANT &3RD RESPONDENT/PETITIONER & 3RD RESPONDENT:** - **1 O.U. VARGHESE, AGED 50 YEARS S/O. PAILY UTHUP, OLANGATTU PINERMUNDA, ERNAKULAM DISTRICT - 682 316.** - **2 JOY THOMAS ANTONY ALIAS THOMSON, AGED 40 YEARS S/O. VALIYAPARAMBIL ANTONY, BUSINESS MAN,** **THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK - 682 018.** ## **OTHER PRESENT:** ## **ADV. PAUL K VARGHESE--FOR RESPONDENTS** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.01.2019, ALONG WITH R.C.Rev..397/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** **RCRev..No. 397 of 2018** **AGAINST JUDGMENT IN RCA 92/2016 DATED 16-07-2018 OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM A PROCEEDING FROM R.C.P.NO.50/2015 OF IIIRD ADDITIONAL MUNSIFF AND RENT CONTROL COURT, ERNAKULAM DATED 17-10-2016** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS 1&2:** - **1 V.J. TOMY,AGED 58 YEARS S/O VALIYAPARAMBIL JOSEPH, VALIYAPARAMBIL HOUSE,PALARIVATTOM, POONITHURA VILLAGE, KANAYYANNUR THALUK.** - **2 GEORGE VIJU,AGED 46 YEARS S/O VALIYAPARAMBIL FRANCIS, BUSINESS, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, KANAYYANNUR THALUK.** **BY ADVS.SRI.R.SANJITH** **SMT.C.S.SINDHU KRISHNAH** ## **RESPONDENTS/RESPONDENTS/PETITIONER & 3RD RESPONDENT:** - **1 O.U. VARGHESE, AGED 50 YEARS S/O PAILY UTHUP,OLANGATTUPINERMUNDA, ERNAKULAM DISTRICT 682 316.** - **2 JOY THOMAS ANTONY ALIAS THOMSON, AGED 40 YEARS S/O VALIYAPARAMBIL ANTONY, BUSINESSMAN, THRIKKANARVATTOM DESOM,ERNAKULAM VILLAGE, KANAYANUR TALUK.** ## **BY ADV. SRI.PAUL K VARGHESE (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.01.2019, ALONG WITH RCRev..394/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 **[ R.C.Rev.Nos.394/2018& 397/2018 ]** ## **ORDER** ## **Harilal, J** The revision petitioners are the tenants against whom an order of eviction has been passed by the Rent Control Court under Section 11(3) of the Kerala Building and Lease Control Act, 1965. The rent control petition was filed under Section 11(2)(b) and 11(3) of the Act. The rent control court rejected the claim under Section 11(2)(b) and allowed the claim for eviction under Section 11(3) only. Both the landlord and tenants preferred appeals before the appellate authority and after reappreciation of the evidence on record, the appellate authority concurred with a finding whereby an order of eviction has been passed under Section 11(3) of the Act, and reversed the findings under Section 11(2)(b) and 4 granted an order of eviction under Section 11(2)(b) also. Thus the legality and correctness of the concurrent findings whereby the courts below granted order of eviction under Section 11(3) and divergent findings under Section 11(2)(b) are assailed in this revision. Since both revision petitions arose out of the common judgment, these revision petitions are heard together and disposed of accordingly by this common judgment. The parties are referred to as in the rent control petition. 2. According to the petitioner, he is the absolute owner in possession of the petition schedule building. He obtained the petition schedule building as per a court auction sale in his favour in O.S.No.607/2009 of Sub Court, Ernakulam dated 08.03.2011. Ext.A1 is the 5 sale certificate issued by the court in his favour. The respondents are the tenants, who were occupying the petition schedule building from 12.03.1993 onwards. After the auction sale, the tenants were attorned with him and they have paid rent up to 08.03.2011 and thereafter the rent is in arrear. Though he had caused to issue lawyers notice demanding the payment of arrears, the respondents have not responded to the said demand. So he is entitled to get order of eviction under Section 11(2)(b) of the Act. That apart, the petitioner _bonafide_ needs the petition schedule building for starting a bakery business. According to him, he is unemployed presently and having no other job or avocation. He has no other buildings of his own in his possession to start the said business; whereas several 6 other vacant buildings are available in the locality to shift the business of the respondents from the tenanted premises. So also they are not mainly depending on the income from the business in the tenanted premises. With the aforesaid averments the petitioner pleaded eviction under Section 11(2)(b) and 11(3) of the Act. The resisted the claim for 3. respondents eviction on both grounds contending that rent fell in arrear only because of the fact that there was no demand for rent. As regards the claim under Section 11(3) of the Act, it is contended that the need projected in the petition is not _bona fide_ as the petitioner has no experience in conducting a bakery business. According to them, it is a ruse for eviction only. They are 7 depending mainly on the income derived from the business in the tenanted premises and no other building is vacant in that locality to shift their business from the tenanted premises. With the aforesaid contentions they seek for dismissal of the rent control petition. 4. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 5. Being a revision filed under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965, the scope and extent of interference of this Court under the revisional jurisdiction are very limited and confined to the legality, regularity and propriety of the findings of the court below only. Therefore, this Court is not inclined to re-appreciate the entire evidence on record so as to arrive at a different finding unless the findings 8 of the court below are perverse or vitiated by the nonconsideration of material evidence. 6. Considering the aforesaid legal position in our mind, we have considered the arguments advanced by the learned counsel for the respondents. The learned counsel for the respondents mainly contended that building scheduled in the rent control petition is not the room, which is in occupation of the respondents. As regards the dispute with respect to the identity of the shop room, going by paragraph Nos.8 and 9 of the judgment passed by the rent control Appellate Authority, it could be seen that the rent control Appellate Authority has considered meticulously the aforesaid dispute with respect to the identity of the shop room and the Appellate Authority found that the 9 petitioner has purchased the petition schedule building in a court auction in which the respondents were also participated and in that auction the petitioner has bid the sale and the sale was confirmed in his favour by the court. The judgment debtor was the prior owner of the petition schedule building and the said fact is admitted by the respondents also. Thus it could be seen that both the petitioner and the respondents have rightly understood the identity of the shop room and raised contentions challenging the prayer for eviction. We find that the rent control Appellate Authority has appreciated the evidence on record in its correct perspective, in view of the contentions raising the dispute with respect to the identity of the shop room. More importantly, the respondent-RW2 himself has 10 admitted that the petitioner is the landlord in of the schedule room possession petition shop occupied by him. In paragraph No.9 of the judgment passed by the appellate authority, the appellate authority has reiterated the deposition of RW2 wherein he himself had admitted that the petitioner is the landlord of the petition schedule building, which is in occupation of the respondents. Therefore, this Court is not inclined to re-appreciate the evidence on record with respect to the identity of the shop room and we rejected the said argument advanced by the learned counsel for the respondents. 7. Secondly, the learned counsel for the respondents contended that the court below have not appreciated the evidence on record under the second 11 proviso to Section 11(3) of the Act in its correct perspective. According to him, though the respondents have produced Ext.B9 audited balance sheet, the court below have failed to appreciate the same in its true and correct perspective. It is trite law that the burden of proof under the second proviso is on the tenant and both limbs are conjunctive. It appears that respondents have produced Ext.B9 audited balance sheet to discharge the burden of proof under the first limb of the second proviso and no other documents have been produced to substantiate the said contention. After analysing Ext.B9 balance sheet in view of the oral testimony of RW2 the court below observed that with respect to income and expenditure of all the three partners of the family, no reliance can be placed on 12 Ext.B9 balance sheet. According to the court below, the expenditure is more than the income from the business in the tenanted premises, thus the respondent RW2 himself has directly admitted that he has other sources of income also. In _Shahul Hameed A. v. P.E.Abdu Razak_ [2016 (5) KHC 820], this Court held that no tenant can claim protection after hiding his income, and evidence must be produced to prove his approximate income from the trade or business and his approximate expenses for livelihood. In the aforesaid decision it is further held that it is incumbent upon the tenant to prove the exact income, which is being derived from the business in the tenanted premises so as to get the protection under the second proviso to Section 11(3) of the Act. 13 8. From the above view, we also find that mere production of balance sheet alone is not sufficient to prove the exact income, which is being derived from the business in the tenanted premises. In the absence of any other evidence to prove the income from the tenanted premises, the court below rightly rejected Ext.B9 balance sheet and arrived at a finding that the respondents failed to discharge the burden of proof under the second proviso to Section 11(3) of the Act. We do not find any kind of illegality or impropriety in the finding whereby the court below granted an order of eviction under Section 11(3) and 11(2) (b) of the Act. Hence, this revision fails and it is dismissed accordingly. 9. Having regard to the nature of business, which is being conducted in the tenanted premises, the 14 revision petitioners are given six months' time to vacate the schedule on the petition building, following conditions: - _an_ - _(1) The revision petitioners/tenants shall file 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 an undertaking that they will vacate the petition schedule shop room within six months from today._ - _(2) The revision petitioners/tenants 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_ 15 _the premises will stand automatically vacated and_ _the respondents/landlord will be at liberty to proceed with the execution of the eviction order._ **Sd/-** **K.HARILAL, JUDGE** **sd/-** **ANNIE JOHN, JUDGE** AMV/04/01/2019 16