Kerala High Court
Sukesini Amma vs Nagarajalu on 25 February, 2004
Equivalent citations: 2004(2)KLT427
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, Pius C. Kuriakose
ORDER K.S. Radhakrishnan, J.
1. Landlady is the revision petitioner. Eviction was sought for under Section 11(3) of Act 2 of 1965. Rent Control Court found that the need is bonafide and genuine and also found that tenant is not entitled to get the benefit of the second proviso to Section 11(3). Consequently eviction was ordered. On appeal by the tenant, Rent Control Appellate Authority found that there is no bonafide in the plea of the landlord and the claim was disallowed, consequently the plea under the second proviso was not considered. Aggrieved by the same this petition has been filed by the landlady.
2. Petition schedule shop room was taken out on rent by the tenant in the year 1964 and is conducting business in the name and style "Parthas Textiles". Rent was periodically enhanced. A small scale industrial unit by name "Bintech Enterprises" was started by the landlady at Ambalamukku, Trivandrum in the year 1981 in a tenanted premises. She wanted to start Branch Office of the SSI unit in the tenanted premises. She has no other building of her own for the said purpose. Schedule premises is having 7 1/2 cents with petition schedule building. Tenant resisted the petition contending that there is no bonafides in the plea. It is stated that the attempt of the petitioner is only a ruse to get enhanced rent and there is no bonafide in shifting the branch office to the schedule building. It was also contended that the petition itself was not maintainable. Further is was also stated that there was successive enhancement of rent and there is no bonafides in the plea. In order to establish the case of the petitioner she got herself examined as P.W.I and produced Exts. A1 to A14 documents. On the side of the tenant Managing Partner of the tenant-firm was examined as C.P.W.1. C.P.Ws. 2 and 3 were also examined. On the side of the tenant Exts. B2 to B2 documents were marked.
3. Rent Control Court after considering the oral and documentary evidence came to the conclusion that the need urged by the landlady is bonafide and ordered eviction. Benefit of the second proviso was also not granted to the tenant. On appeal, Appellate Authority reversed the finding of the Rent Control Court and held that there is no bonafides in the plea. Since plea of bonafide need was negatived the question of granting the benefit of the second proviso was not examined.
4. Rent Control petition described the counter petitioner as the Managing Partner of Parthas Textiles. In paragraph 2 of the petition it was stated that in the schedule premises counter petitioner is conducting a textile shop in the name and style Parthas Textiles. The firm was not made a party. No serious contention was raised before the Appellate Authority with regard to the maintainability of the petition in spite of the fact that Rent Control Court already found that petition is maintainable. We will proceed as if rent control petition is maintainable. Before the Appellate Authority the only point raised was whether the need urged is bonafide or not. Petitioner is conducting a small scale industrial unit, Bintech Enterprises at Ambalamukku. Ext.A3 and other documents produced would clearly show that landlady is conducting business at Ambalamukku. Facts would also indicate that she is running the said unit in a rented premises. The need urged is that she wants to start branch of the said small scale unit in the tenanted premises, which is in an important locality at Attingal. Small Scale industrial unit manufactures steel furniture and other related items. Consequently rented premises can be better utilized as her office and for allied purposes. Appellate Authority however negatived the plea mainly on the ground that there is contradictions in the pleadings and in the oral evidence adduced by the landlady. Appellate Authority noticed that the actual date of starting production in Bintech Enterprises is 27.10.1981 and not on 10.6.1983. Though the need alleged arose only on the said date, Appellate Authority felt that the actual need cannot be prolonged or procrastinated to an indefinite period by executing revised rent deed. Tenant also produced Ext. B1 letter dated 28.4.1987 by which landlady wanted enhancement of rent at the rate of Rs 5,000/- per month. Landlady disputed the signature in the said document. Demand for enhanced rent by Ext. B1 and the conduct of the landlady in renewing the lease, according to the tenant, would show that there is no bonafides in the plea.
5. We are of the view, the periodical requests for enhancement of rent as such is not a ground to hold that there is no bonafides in the plea of eviction. Plea of periodical revision of rent shall not defeat the plea of bonafide need. The delay in disposal of rent control petition is well known. Nobody can expect a landlord to wait endlessly for revision of rent. So far as this case is concerned, rent control petition was filed in 1989 and it is yet to reach its finality even in the year 2004. Therefore a prudent landlord may seek revision of rent even if he needs the building for own occupation. Further, issuance of Ext. B1 notice is denied by the landlady. Assuming for argument sake that she has signed Ext. Bl letter, we notice that tenant had failed to reply to the said letter. In the last para of Ext. B2 demands an immediate reply. Though Ext. B1 was received by the tenant no reply was sent. Ext. A8 is the letter sent by the counter petitioner tenant to the landlady wherein there is no reference to Ext. B1. Facts would show that the S.S.I. Unit, Bintech Enterprises, is at Ambalamukku, Trivandrum. She wanted to have her own branch office at Attingal so as to augment her income from the business. If tenanted premises is utilized by her for the branch office she could attract more customers. Consequently gets more business contracts. The question as to where she should set up the branch office is for her to decide. No evidence has been adduced in this case to show that landlady has got any other building of her own at Trivandrum or Attingal which is suitable for her business. In such circumstance, we are in agreement with the Rent Control Court that the need urged by the landlady is bonafide and is not a ruse to evict the tenant.
6. Tenant sought the benefit of the second proviso to Section 11(3). Full Bench of this Court in Francis v. Devaki Varassiyar, 2003 (2) KLT 230 held that burden is entirely on the tenant to show that he is entitled to get the benefit of the second proviso. Counter petitioner in his oral evidence admitted that he has got another firm at Trivandrum and he is the Managing Partner of that firm. C.P.W.1 tenant has also deposed that he had invested Rs.2 crores in the business at Trivandrum and the annual turnover is more than Rs. 1 crore. This would indicate that the income derived from the business conducted in the schedule premises is not the main sources of livelihood. Availability of other buildings has also been pointed out by the landlady. No independent evidence has been adduced by the tenant to discharge the burden. No attempt has been made by the tenant to examine the Accommodation Controller. C.P.W.2 was examined to discharge the burden by the tenant. C.P.W.2 deposed that there are some shop rooms lying vacant in the locality. In any view tenant has not established a case under the second limb of the second proviso to Section 11(3). In such circumstances, we are inclined to set aside the order passed by the Rent Control Appellate Authority and allow this revision. It is so ordered. Considering the facts and circumstances of the case, we are inclined to grant time to the tenant upto 30.8.2004 for vacating the premises on condition that the tenant should file an undertaking before the Rent Control Court within one month from today stating that the tenant would vacate the building within the aforesaid period and would pay arrears of rent, if any, and future rent.