Kerala High Court
N.Valsalan vs Malayadath Kandath Sharada on 15 October, 2015
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 5TH DAY OF DECEMBER 2017/14TH AGRAHAYANA, 1939
R.C.Rev. No. 358 of 2016 ()
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IN R.C.A 29/2010 BEFORE THE COURT OF THE RENT CONTROL APPELLATE AUTHORITY,
DISTRICT JUDGE, THALASSERY DATED 15.10.2015
IN R.C.P 16/2008 BEFORE THE RENT CONTROLLER ( MUNSIFF) , THALASSERY DATED 26-10-2009
REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
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N.VALSALAN
S/O. GOPALAN NAMBIAR, AGED 60 YEARS,
KUNIYIL HOUSE, KADIRUR AMSOM,
PONNIAM DESOM, HIMA ELECTRONICS,
KUTHUPARAMBA ROAD, POST PANOOR.
BY ADVS.SRI.B.KRISHNA MANI
SRI.RAHUL VENUGOPAL
RESPONDENT(S)/RESPONDENT/PETITIONER:
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MALAYADATH KANDATH SHARADA,
W/O. LATE ANANDAN, AGED 62 YEARS,
NO OCCUPATION, RESIDING AT THYPARAMBATH HOUSE,
OLAVILAM AMSOM, DESOM, POST OLAVILAM,
THALASSERY TALUK, KANNUR DISTRICT - 673 313.
R1 BY ADVS. SRI.K.V.PAVITHRAN
SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL
SRI.P.SAJU
SRI.NIAS MOOPAN
SRI.E.M.UNNIKRISHNAN (MANJERI)
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05-12-2017, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
hmh
K.HARILAL,J
&
K.P. JYOTHINDRANATH, J.
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R.C.R.NO. 358 OF 2016
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Dated this the 5th day of December, 2017
JUDGMENT
K.HARILAL,J The legality and proprietary of the concurrent findings of the courts below granting an order of eviction to the respondent herein under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (herein after referred to as the 'Act') have come up in this revision before us. The parties are referred to as in the Rent Control Petition.
2. According to the petitioner in R.C.P. No.16/2008, he bonafide needs the petition schedule shop room for starting a bakery-cum-cool bar for his son. His son was an auto rickshaw driver, but at present he has no job as he has stopped driving of auto rickshaw due to his bad health condition and his auto rickshaw became very old and useless. Now he wants to seek an avocation for his livelihood. He has no other vacant rooms of his own in his possession. But, several other other vacant rooms are available in the locality to shift the business of the respondent from the tenanted R.C.R.NO. 358 OF 2016 : 2 : premises.
3. The respondent resisted the claim for eviction contending that, the need projected in the petition is not bonafide and it is a ruse for eviction only. According to the respondent, the petitioner has other vacant rooms in his possession to start the proposed bakery and cool bar. Further it is contended that he is entitled to get a protection under the second proviso to Section 11(3) as he is mainly depending on the income from the tenanted premises and no other alternative vacant buildings are available in the locality.
4. On the aforesaid rival buildings both parties adduced evidence and on appreciation of the evidence the courts below concurrently found that the need projected in the petition is bonafide and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. So also it was found that the claim for eviction under Section 11(3) is not hit by the first proviso to Section 11(3), as the petitioner was not in possession of suitable vacant rooms.
5. Heard the learned counsel for the petitioner and the learned counsel for the respondent. R.C.R.NO. 358 OF 2016 : 3 :
6. The sum and substance of the argument advanced by the learned counsel for the respondent is that, the courts below have failed to consider the evidence on record under the first proviso to Section 11(3) of the Act in its correct and proper prospective.
7. According to the respondent, it has come out in evidence that, the petitioner was in vacant possession of a stair case room and another hall behind the petition schedule shop room. So the courts below ought to have found that, the claim under Section 11(3) of the Act was hit by the first proviso to Section 11(3). Going by the Rent Control Petition, it is seen that the petitioner himself has disclosed, by way of amendment in his pleadings that he has a stair case room and a hall behind the petition schedule room in his possession. But the same is not suitable for starting the bakery and cool bar business. The petitioner was examined as PW1 and in his evidence he has reiterated his case that, the stair case room and hall behind the petition schedule room are not suitable for conducting the bakery.
8. According to the petitioner, the stair case room R.C.R.NO. 358 OF 2016 : 4 : is a small room and the hall behind the petition schedule shop room has no road frontage. So, the said rooms are not suitable for conducting bakery cum cool bar.
9. The above reasoning of the petitioner is supported by Ext.C1 commission report and Ext.C2 plan. In Ext.C1 commission report the commissioner has specifically stated that the stair case room is a small room and the same is not an enclosed room. The two sides of the said room are fitted with grills. It is needless to say a hall like room having no road frontage is not suitable for conducting a bakery cum cool bar, which requires easy and convenient access. After analyzing the evidence of PW1, Ext.C1 report and Ext.C2 plan the courts below have placed reliance on the said evidence and found that the petitioner has succeeded in giving special reason for not occupying the stair case room and hall behind the petition schedule shop, room for conducting the proposed bakery cum cool bar. The respondent has no case that, the courts below have omitted to consider any valuable evidence or placed reliance on any irrelevant evidence or wrong proposition of law. A revision is not an appeal in disguise and R.C.R.NO. 358 OF 2016 : 5 : the scope and extent of enquiry in a revision is that find to legality, proprietary and regularity of the findings of the courts below. Therefore, this court is not inclined to re-appreciate the evidence and to take a different view, unless the findings of the courts below are perverse. We do not find any kind of illegality or perversity in the concurrent findings of the courts below in this respect.
10. It is also contended by the learned counsel for the respondent that the non examination of the son of the petitioner for whose need the petition schedule shop room is required, is fatal. But, as rightly found by the Appellant Authority, this court has considered the above question in Devayani Vs. Pulickaparambil Hamsa Haji [1997 (1) KLJ 230], Mustafa Haji Vs. Umbichi [2004 (2) KLT 1110] and Cannanore Drug House Vs. Cheriya Melat Abdul Azeez [2013 KHC 2518] and held that the need is always that of the landlord and the non examination of the dependent is not fatal. Therefore, the courts below are justified in rejecting the said contention.
11. Coming to the second proviso to Section 11(3) R.C.R.NO. 358 OF 2016 : 6 : of the Act, the courts below had concurrently found that the respondent has failed to discharge the burden of proof under the second proviso to Section 11(3) of the Act. It is trite law that the burden of proof under the second proviso is on the tenant. Admittedly, the respondent is a person retired from military service and he is getting pension. There is nothing to show that, the income from the tenanted premises is more than the amount of pension which is being received by him per month. No evidence has been produced to prove the approximate income from the business in the petition schedule shop room and his approximate living expense. This court in Shahul Hameed A Vs. Abdul Razak [2016 (5) KHC 820] held that no tenant can claim protection after hiding his income. The evidence must be produced to prove his approximate income from the trade or business and his approximate living expense. In the absence of evidence, it can be held that the respondent failed to prove that he is depending on the income from the business in the tenanted premises.
12. Coming to the second limb of the second R.C.R.NO. 358 OF 2016 : 7 : proviso, the respondent has no case that, he has made enquiry with regard to the availability of suitable alternative buildings in the locality. Whereas the commissioner has filed a report stating that, the three rooms were found closed in another building very near to the petition schedule shop room. Eventhough the respondent has contended that, he has made an enquiry with the owner of that building, no independent evidence was adduced to prove that, those rooms were not available for letting out to the tenants. It is pertinent to note that, the respondent has not taken a commission to ascertain the non availability of the building in the locality.
13. In the above view, we find that the respondent has failed to prove that no other vacant rooms are available in the locality. To sum up, the courts below are justified in finding that the respondent has failed to discharge the burden of proof under the second proviso to Section 11(3).
14. In the above analysis we do not find any kind of illegality or impropriety to any of the findings, whereby the courts below granted an order of eviction under Section 11(3) of the Building Lease and Rent Control Act, 1965. R.C.R.NO. 358 OF 2016 : 8 :
15. The learned counsel for the Respondent prayed for granting one year time to vacate the tenanted premises. Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given eight month's time from today to vacate the petition schedule building, on the following conditions.
1). The revision petitioner/tenant shall file an 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 he will vacate the petition schedule shop room within eight months from today.
2). The revision petitioner/tenant shall deposit the entire arrears, if any, within two month from today, 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 the premises will stand automatically vacated R.C.R.NO. 358 OF 2016 : 9 : and the respondent/landlord will be at liberty to proceed with the execution of the eviction order.
Sd/-
K.HARILAL,JUDGE Sd/-
K.P. JYOTHINDRANATH, JUDGE hmh