Kerala High Court
Kurian.K.Kuriakose vs Usha Cherian on 30 January, 2008
Equivalent citations: AIR 2008 (NOC) 1065 (KER.)
Author: K.T.Sankaran
Bench: K.Balakrishnan Nair, K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev No. 16 of 2008()
1. KURIAN.K.KURIAKOSE, AGED 55 YEARS,
... Petitioner
Vs
1. USHA CHERIAN, W/O.LATE M.C.CHERIAN,
... Respondent
2. DIVYA SUSAN CHERIAN, D/O.USHA CHERIAN,
3. M.C.CHERIAN, S/O.USHA CHERIAN,
4. DHANYA MARY CHERIAN, D/O.USHA CHERIAN,
For Petitioner :SRI.P.GOPAL
For Respondent :SRI.P.VISWANATHAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :30/01/2008
O R D E R
K.BALAKRISHNAN NAIR &
K.T.SANKARAN, JJ.
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R.C.R. NO. 16 OF 2008
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Dated this the 30th January, 2008
O R D E R
K.T.SANKARAN, J.
The tenant challenges the concurrent findings of the Rent Control Court and the Appellate Authority under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act').
2. The principal contention raised by the tenant in this Revision is that the landlord has not pleaded in the Rent Control Petition that the tenant is not depending for his livelihood mainly on the income derived from the business carried on in the petition schedule building and that there is suitable building available in the locality for the tenant to carry on the business, in order to deny to the tenant the benefit of the second proviso to Section 11(3) of the Act. According to the tenant, lack of necessary pleading in this behalf in the Rent Control Petition would have the effect of taking away the burden of proof on the tenant to prove the ingredients of the 2nd proviso to Section 11 (3). The petitioner also contends that the courts below have not properly considered the pleadings and evidence in the case and the contention of the tenant that R.C.R.No.16 of 2008 :: 2 ::
the landlord has let out another room to a relative within a short period before the filing of the Rent Control Petition. The tenant also raised a contention that the landlords are residing in Bangalore and the need put forward is a ruse to evict the tenant.
3. The Rent Control Petition was filed under Section 11(3) of the Act. The Rent Control Court allowed the Rent Control Petition. Another Rent Control Petition filed by the same petitioners in respect of the adjoining room was also tried along with the present Rent Control Petition.
On appeal by the tenant, the Appellate Authority dismissed the appeal and confirmed the order of the Rent Control Court.
4. The petition schedule building was let out to the tenant in 1994 on a monthly rent of Rs.3,100/-. The bona fide need put forward is that the third petitioner in the R.C.P. requires the building for conducting business in flooring materials including granite and ceramic tiles. For that purpose, the petition schedule room and the adjoining room are required. The third petitioner has passed the Pre-degree course. At the time of filing the petition, he was studying for B.Com. He was attending to the office and show-room of Sri.Praveen Gattani at Bangalore, who conducts business in flooring materials. The third petitioner has thus gained sufficient experience. The petitioners in the R.C.P. contended that R.C.R.No.16 of 2008 :: 3 ::
they have no other building in their possession at Kottayam, that the respondent/tenant has other business and that other buildings are also available in the locality for accommodating the business of the tenant.
5. The tenant disputed the bona fide need and he contended that it is only a ruse to evict him. The petitioners in the R.C.P. are residing at Bangalore. They have no intention to settle at Kottayam. The third petitioner is a student. His case that he was attending the office and show-room of Sri.Praveen Gattani is not correct. The petition schedule building is used as a godown by the tenant. The only source of income of the tenant is from the business carried on in the petition schedule building. There is no suitable building available in the locality to accommodate the business. The intention of the petitioners is to sell the petition schedule building. The Rent Control Petition was filed since the respondent did not heed to the demand for payment of exorbitant rent.
6. Before the Rent Control Court, petitioners 1 and 3 were examined as PWs.1 and 2 respectively. Ext.A1 certificate issued by Sri.Praveen Gattani and Ext.A2 certificate issued by Sapphire Granites to show that the third petitioner had undergone training in the business concerned, were relied on by the courts below. The evidence of PWs.1 and 2 that the petitioners intend to come back to Kottayam was believed.
R.C.R.No.16 of 2008:: 4 ::
The courts below took note of the fact that the third petitioner is the only male member in the family and that the predecessors of the petitioners were businessmen.
7. A contention was raised by the tenant that the petitioners owned another building and it was rented out to their relative Reji Kurian. It was contended that if the bona fide need put forward was genuine, the third petitioner could have occupied that building. The Rent Control Court held that there is no evidence to show that the building in the possession of Reji Kurian is suitable for conducting the business proposed to be held by the third petitioner. PWs.1 and 2 stated in evidence that Reji Kurian had agreed to vacate the building at any point of time. This evidence was relied on by the tenant to support his contention. The court below held that the tenant cannot dictate to the landlord regarding the choice of the building to start the business.
8. In Sarla Ahuja v. United India Insurance Company Ltd.
((1998) 8 SCC 119), while considering the scope and ambit of Section 14 (1) (e) of the Delhi Rent Control Act, the Supreme Court held as follows:
"When the landlord asserts that he requires his 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 and when the landlord shows a prima facie case, it is open R.C.R.No.16 of 2008 :: 5 ::
to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
9. It is stated by PW2 in evidence that the petitioners intend to invest only Rs.2 lakhs in the business and that finance is also arranged.
The evidence would also indicate that the third petitioner has gained sufficient experience. The third petitioner belongs to a business family at Kottayam. His relatives are conducting business at Kottayam. It is well settled that previous experience to conduct business is not necessary as a pre-condition for seeking eviction on the ground of bona fide need to conduct business.
10. In Dettatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde ((1999) 4 SCC 1), the Supreme Court held as follows:
"If a person wants to start a new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. Many a business has flourished in this country by leaps and bounds which was started by a novice in the field, and may other business ventures have gone haywire despite vast experience to the credit of the propounders. The opinion of the learned Single Judge that acquisition of sufficient know- how is a precondition for even proposing to start any R.C.R.No.16 of 2008 :: 6 ::
business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that "no experience no venture"."
11. The courts below held that the bona fide need put forward by the petitioners is genuine. The contention of the tenant that the Rent Control Petition was filed on the refusal of the tenant to pay exorbitant rent was not accepted by the courts below for dearth of evidence.
Demand for increased rent by itself is not a ground to reject a claim for eviction on the ground of bona fide need. A landlord may legitimately expect a reasonable return of his investment. Demand for periodical increase in rent, taking into account the prevailing economic conditions, cannot be said to be so unreasonable and unjust so as to deny an otherwise just and genuine claim for vacant possession on the ground of bona fide need. The courts cannot shut its eyes to the practical realities in life. The prevailing market conditions, escalation in prices, prevailing rates of rent and other socio economic factors are relevant in considering such a case.
12. The findings of the courts below are based on facts and on appreciation of the evidence on record. We do not think that the revisional court would be justified in upsetting the findings of fact rendered R.C.R.No.16 of 2008 :: 7 ::
by the courts below. We confirm the finding of the courts below that the bona fide requirement put forward by the petitioners is genuine.
13. It is contended by the tenant that there is no proper pleading by the petitioners in the Rent Control Petition touching upon the ingredients of the second proviso to Section 11(3) of the Act. The second proviso to Section 11(3) of the Act reads as follows:
"Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:"
It is well settled that the burden of proof is on the tenant to establish the ingredients of the second proviso in order to claim the benefit of the same.
(See Kochappan Pillai v. Chellapan (1976 KLT 1); Ean Haji v. Mustafa (2004 (2) KLT 668); Prasannan v. Haris (2005 (2) KLT 365) and Francis v. Sreedevi Variassar (2003 (2) KLT 230 (FB)). In Scaria Kuncheria v.
Riyas (1999 (2) KLT SN Case No.2), it was held that the landlord is not under duty to mention in the Rent Control Petition that buildings are available in the locality for the tenant to shift, by anticipating the case of the tenant. The second proviso is in the nature of an exception. Even after proving the bona fide need, the landlord would not be entitled to get R.C.R.No.16 of 2008 :: 8 ::
an order of eviction, if the tenant establishes the ingredients of the second proviso. A benefit which is available to the tenant and which, if proved, would entail in the dismissal of the Rent Control Petition, should be established by him by pleading and proving the same. The landlord is not bound to plead in the Rent Control Petition that the tenant is not entitled to the benefit of the second proviso. The landlord need not anticipate the defence that would be taken by the tenant and make averments in advance in the Rent Control Petition to meet such a case as well. Even after the tenant puts forward a plea under the second proviso to Section 11(3), it is not necessary for the landlord to amend the Rent Control Petition. The landlord need not incorporate any reply to such contention of the tenant either in the Rent Control Petition or by way of any replication. It is sufficient if the contentions are suitably met by the landlord in evidence. Therefore, we are not inclined to accept the contention of the revision petitioner that due to the failure to plead in the Rent Control Petition the necessary facts showing non-availability of the second proviso to Section 11(3) in favour of the tenant, the Rent Control Petition is liable to be dismissed.
14. Learned counsel for the petitioners also contended that Exts.A1 to A5 documents were not properly proved by examining the persons who issued the letters and certificates. The courts below held R.C.R.No.16 of 2008 :: 9 ::
that the evidence of PWs.1 and 2 is sufficient to hold that the facts stated in Exts.A1 to A5 are true. Even if Exts.A1 to A5 are not taken into account, we are of the view that the evidence of PWs.1 and 2 would show that the third petitioner has undergone necessary training and that he is capable of conducting a business in sanitary items. The tenant also raised a contention that if the bona fide need put forward is genuine, the third petitioner could have thought of starting the business on completion of the age of 18 years. It is contended that the landlords have rented out a building in 1996 and the petition schedule building was rented out in 1994. The third petitioner could have occupied these buildings even at that time and the failure to do so would indicate that the present need put forward is not genuine. It is not for the tenant to dictate at what point of time the third petitioner should commence business, whether immediately after completion of the age of 18 years or after gaining some experience as well. The question is whether the need urged is bona fide. In deciding this question, a hyper technical approach to the fact situation while analysing the evidence is not desirable.
15. The tenant also raised a contention that the landlords have got vacant possession of the building involved in R.C.O.P.No.15 of 1998 and, therefore, the need urged has lost its relevance. R.C.O.P.Nos.15 of 1998 and 33 of 1998 were filed by the petitioners therein putting forward the R.C.R.No.16 of 2008 :: 10 ::
bona fide need. The need put forward is for commencing business by the third petitioner in the two buildings involved in the two R.C.O.Ps. The need was found to be genuine by the Rent Control Court. The fact that the tenant in R.C.O.P.NO.15 of 1998 vacated the premises and that the landlords got possession of the same is not a ground to hold that the bona fide need has become sterile. The need being for the occupation of the two buildings in both the Rent Control Petitions, obtaining vacant possession of the building involved in one case is not relevant at all in deciding the question of bona fides of the landlords. The need would be satisfied only if vacant possession of the buildings involved in both the cases is obtained. The question which the Appellate Authority as well as the revisional court should consider is the bona fide need in respect of both the buildings. The present case is not a case where during the pendency of the Rent Control Proceeding or Appeal or Revision, the particular need put forward has become irrelevant since the landlord obtained vacant possession of another suitable accommodation. In the present case, what the landlords have obtained is a portion of the accommodation which the third petitioner wanted for the commencement of his business. That will not destroy or nullify the bona fide need urged in the Rent Control Petition. The Appellate Authority was fully justified in rejecting the contention put forward by the tenant in this regard. R.C.R.No.16 of 2008
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16. No other point is raised by the learned counsel for the tenant.
For the aforesaid reasons, we are of the view that the order of the Rent Control Court and the judgment of the Appellate Authority are correct and no grounds are made out for interference under Section 20 of the Act.
Accordingly, the Rent Control Revision is dismissed. However, in the facts and circumstances of the case, the tenant is granted six months' time to vacate the building on condition that he shall file an unconditional undertaking in the form of an affidavit within three weeks from today before the Rent Control Court, undertaking to vacate the building within six months from today and shall deposit the arrears of rent, if any, within one month from today and shall also pay the monthly rent without default till he vacates the building.
(K.BALAKRISHNAN NAIR) Judge (K.T.SANKARAN) Judge ahz/