Kerala High Court
Karambath Sathyavalsalan vs Karuvalli Natarajan on 22 March, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
THURSDAY, THE 22ND DAY OF MARCH 2012/2ND CHAITHRA 1934
RCRev..No. 116 of 2012
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RCA.127/2009 of II ADDL. D.C./II ADDL. RENT CONTROL APPELLATE AUTHORITY,
KOZHIKODE
RCP.39/2008 of ADDL.M.C./ADDL. RENT CONTROL COURT-II,KOZHIKODE
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REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
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KARAMBATH SATHYAVALSALAN
AGED 59 S/O.KELAPPAN NADUVATTAM AMSOM AND DESOM P.O
GOVERNMENT ARTS COLLEGE, KOZHIKODE
BY ADV. SRI.C.P.MOHAMMED NIAS
RESPONDENT(S)/RESPONDENT/PETITIONER:
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KARUVALLI NATARAJAN
AGED 59 S/O.KARUVALLI CHOYI, NADUVATTAM AMSOM AND DESOM P.O
GOVERNMENT ARTS COLLEGE KOZHIKODE.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
22-03-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ.
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R. C. R No.116 of 2012
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Dated this the 22nd day of March, 2012
ORDER
Ramakrishna Pillai, J The tenant is in revision.
2. The Rent Control Proceedings were initiated by the respondent against the revision petitioner under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act hereinafter referred to as the "Act" alleging that the daughter of the respondent who is married to an ITI Instructor has obtained the ITI trade certificate in electrical and electronics and as she has no avocation or source of income of her own she intends to start a business in sales and services of electrical appliances and spare parts in the petition schedule premises.
3. The revision petitioner resisted the claim contending that the respondent's daughter is well settled, she is having R. C. R No.116 of 2012 -2- income of her own and the respondent is in possession of several rooms other than the petition schedule premises. It was further contended that the revision petitioner is completely depending on the income derived from the business set up in the petition schedule premises. It was his further case that no other suitable rooms are available in the locality to shift the business. According to the revision petitioner, the need alleged was only a ruse for eviction.
4. The learned Rent Controller after raising proper points for trial permitted both sides to adduce evidence which consisted of the oral testimonies of PW1, PW2 and RW1 as well as Exts.A1 to A4 and B1 and B2 series. After evaluating the evidence the learned Rent Controller ordered eviction under Section 11(3).
5. The matter was taken up in appeal by the revision petitioner before the Rent Control Appellate Authority which on a re-appraisal of the evidence confirmed the order of eviction under Section 11(3). The said order is under challenge in this revision.
R. C. R No.116 of 2012 -3-
6. We have heard the learned counsel for the revision petitioner.
7. The respondent gave evidence as PW1 and his testimony is supported by the evidence given by his daughter who was examined as PW2. It has come out in evidence through the oral testimonies of these two witnesses that PW2 has obtained a trade certificate in electrical and electronics from ITI in July, 2007. It is also in evidence that the husband of PW2 is an ITI School Master. PW2 is not having any job. The salary of the husband of PW2 is insufficient to meet the ends of her family, so stated PW2 in the witness box. The certificate obtained by PW2 was admitted in evidence as Ext.A2. We are not prepared to hold that the need put forward by the respondent landlord is not bona fide.
8. The argument advanced by the learned counsel for the revision petitioner is that PW2 who was married is staying with her husband and the petition schedule building is kilometres away from their residence. But it has come out R. C. R No.116 of 2012 -4- in evidence that the petition schedule premises is close to the house of PW1 and we see no reason why she cannot conduct the business staying with PW2 who is her father.
9. It was submitted by the learned counsel for the revision petitioner that yet another room bearing door No.15/129 belonging to the 1st respondent is lying vacant. The said room which was let out to one Bhasuramithran who is now no more is not occupied by anybody, so submitted the learned counsel for the revision petitioner. It was also pointed out that though an application to depute a Commissioner to note the present condition of the said room was filed by the revision petitioner before the Rent Control Appellate Authority, it was dismissed. However, it is in evidence that the aforesaid Bhasuramithran was alive at the time of trial. However, the revision petitioner did not care to summon and examine him. Nor did he produce the relevant extracts of the register maintained by the local authority to prove the occupation. Without resorting to those methods, the revision petitioner has filed the application to depute a R. C. R No.116 of 2012 -5- Commissioner at the appellate stage. As it was an exercise in futility the application was dismissed by the appellate authority. We see no impropriety in that.
10. Though the revision petitioner contended that the respondent is having other rooms in his possession he could not establish the same by cogent evidence. It is trite that the burden is on the tenant to establish that he is entitled to the protection under both the limbs of the second proviso to sub Section 3 of Section 11. In this case, the revision petitioner has not produced any document to show the income derived from the business set up in the petition schedule premises. It is in evidence that he is conducting a business of selling electrical goods in the petition schedule premises. No evidence is forthcoming regarding the income derived by the revision petitioner from the business set up in the petition schedule room and that he is mainly depending upon the income from the said business. The respondent has pointed out certain buildings which are lying vacant opposite to the petition schedule building. There is nothing on R. C. R No.116 of 2012 -6- evidence to show that the revision petitioner had made proper enquiries with regard to the availability of the other buildings though it was his duty to prove that no suitable buildings are available in the locality to shift his business.
11. On consideration of the entire evidence before us we are of the definite view that the learned Rent Controller has appreciated the evidence in the correct perspective. The learned Rent Control Appellate Authority who re-appraised the entire evidence also has arrived at a correct conclusion. We do not see any illegality, irregularity or impropriety calling for an interference by invoking the revisional jurisdiction of this Court under Section 20 of the Act.
12. The result is that the revision fails and the same shall stand dismissed.
13. When our decision was made known to the learned counsel for the revision petitioner he requested one year time to surrender vacant possession of the petition schedule premises. We are of the view that we will not be justified in granting time to the revision petitioner without hearing the R. C. R No.116 of 2012 -7- respondent/landlord. Hence, issue notice to the respondent/ landlord by speed post.
Interim stay for two months.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE kns/-
//TRUE COPY// P.A. TO JUDGE