Kerala High Court
Aliyamma John vs Mohanan Pillai @ Dileep Kumar on 31 July, 2010
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935
RCRev..No. 34 of 2014 ()
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AGAINST THE JUDGMENT IN RCA 31/2010 of I ADDL.RENT CONTORL
APPELLATE AUTHORITY,KOLLAM
AGAINST THE ORDER IN RCOP 1/2009 of MUNSIFF COURT,
KARUNAGAPPALLY DATED 31-07-2010
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REVISION PETITIONER(APPELLANT/RESPONDENT):
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ALIYAMMA JOHN, D/O K.C JOHN,
PUTHEN PURAYIL, KOLLAKA MURI
VADAKKUMTHALA VILLAGE, KARUNGGAPPALLY, KOLLAM
BY ADVS.SRI.ALEX N.MATHEW (KOLLAM)
SRI.H.RAMANAN
SRI.JAMES JOSE
RESPONDENT(RESPONDENT/ PETITIONER) :
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MOHANAN PILLAI @ DILEEP KUMAR,
S/O MADHAVAN PILLAI, THOTTATHIL VADAKKE MADATHIL,
PADA SOUTH MURI, KARUNAGAPPALLY VILLAGE,
KARUNAGAPPALLY 690518, KOLLAM DISTRICT
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 07-02-2014, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
BP
K.T.SANKARAN & P.UBAID,JJ.
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R.C.R. No. 34 of 2014
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Dated this the 7th February, 2014
O R D E R
K.T.Sankaran,J.
Concurrent findings of the Rent Control Court and the Appellate Authority under Section 11 (2) (b) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short) are under challenge by the tenant in this revision.
2. The respondent-landlord filed RCP No.1 of 2009 on the file of the Rent Control Court, Karunagappally against the petitioner under Section 11 (2) (b) and 11 (3) of the Act. According to the landlord, the tenanted premises was leased out to the father of the tenant in the year 1976 at a monthly rent of 200/-. The landlord filed B.R.C.O.P No.12 of 1996 before the Rent Control Court for eviction. That Rent Control Petition ended in compromise evidenced by Ext.A5, by which the tenant agreed to execute a fresh rent deed and to pay rent at enhanced rate. According to the landlord, the tenant did not execute fresh rent deed. It is R.C.R. No. 34 of 2014 2 also an admitted case of the parties that the tenant approached the Accommodation Controller with a grievance that the landlord failed to do the repairs of the building. The Accommodation Controller passed Ext.A6 order directing the landlord to attend to the repairs and on his failure allowing the tenant to undertake the repair work. Meanwhile, O.S No.320 of 2002 was filed by the brother of the landlord against the landlord and the petitioner herein alleging that under the guise of repair, his neighbouring building was attempted to be damaged. The parties entered into a compromise in that suit by which rent was enhanced to 400/-. According to the tenant, the enhancement of rent was subject to the condition that the landlord should conduct the repairs of the building. According to the tenant, no such repairs were conducted by the landlord and that was the reason why the enhanced rent was not paid by the tenant.
3. According to the landlord, the tenant is liable to pay arrears of rent at the rate of 400/-. But according to the tenant, the rent was payable only at 200/-. This issue was resolved on the basis of the evidence on record. Both R.C.R. No. 34 of 2014 3 the Authorities found that the tenant agreed to pay rent at the rate of 400/- per month but, she failed to pay the enhanced rent. The Rent Control Court noticed the admission made by the tenant in evidence that there is no leakage in the building at present and that she is conducting business using electronic gadgets like photostat machines and others. It was also noticed by the Rent Control Court that had the repairs been not undertaken by the landlord, certainly the tenant could have done the repairs as authorised by the Accommodation Controller in Ext.A6 order. There is no case for the tenant that any repairs were undertaken by her. The Rent Control Court concluded that the landlord himself made the repairs and that was the reason why the tenant did not undertake the repairs.
4. The findings on the question of arrears of rent and the rate of rent are concurrent. The findings are based on the pleadings and oral and documentary evidence in the case. There is no illegality, irregularity or impropriety in the said finding and therefore, no interference is called for. R.C.R. No. 34 of 2014 4
5. As regards the ground under Section 11 (3) of the Act, the landlord contended that he is doing pharmacy business in a room belonging to his sister,Mayadevi. Mayadevi is a widow. She requested the landlord to shift the business from that room so that she can occupy that room for her bona fide need. Therefore, the landlord had no other option but to request the tenant to vacate the petition schedule building and that was why he approached the court with a petition under Section 11 (3) of the Act. The licence issued in his favour to conduct business in pharmacy was produced before the Rent Control Court and the courts below were satisfied about the genuineness of the same and also about the genuineness of the case put forward by the landlord that he is conducting business in the room belonging to his sister Mayadevi and Mayadevi requested him to vacate the building. The bona fide need put forward by the landlord, on facts, is beyond challenge.
6. The tenant contended that she is entitled to the protection under the second proviso to Section 11 (3) of the Act. It is well settled that the burden to establish both the R.C.R. No. 34 of 2014 5 limbs of the second proviso is on the tenant. The tenant has to prove that she is depending for her livelihood mainly on the income derived from the business conducted in the petition schedule building. She has also to prove that there is no other building available in the locality to shift her business. The tenant stated in evidence that she is getting a sum 6,000/- per month from the business conducted in the petition schedule building. She has to spend 4000/- as expenses for conducting the business. The profit she is getting is 2000/-. According to the landlord, the tenant owns an extent of more than one acre of land and she has a house. It has come out in evidence that the husband of the tenant was working abroad in a Gulf country. Her two daughters were married away and their husbands are also working in Gulf countries. It is admitted by the tenant that while her husband was in Gulf, he used to send money to her. The courts below arrived at the finding that no document was produced by the tenant to show what income she derives from the business conducted in the petition schedule building. The courts below, on appreciation of the R.C.R. No. 34 of 2014 6 evidence in the case,arrived at the conclusion that the tenant is not mainly depending on the income derived from the business in the petition schedule building for her livelihood. As regards the availability of other suitable building, the Rent Control Court found that the tenant did not adduce any evidence. When it was suggested to her in evidence that certain buildings are available in the locality, she stated that she did not enquire about the same. The courts below concluded that the tenant failed to establish both the limbs of the second proviso to Section 11 (3) of the Act. The findings under Section11 (3) of the Act are concurrent. The findings are based on oral and documentary evidence in the case and they are findings of fact. There is no ground for interference under Section 20 of the Act.
7. There is nothing to show that the concurrent findings of the courts below suffer from any illegality, irregularity or impropriety warranting interference under Section 20 of the Act. Accordingly, the Rent Control Revision is dismissed.
R.C.R. No. 34 of 2014 7
8. Learned counsel for the petitioner/tenant submitted that at least one year's time may be granted to the tenant to vacate the petition schedule building. Taking into account the facts and circumstances of the case, we are inclined to grant time till 31.5.2014 to the tenant to vacate the petition schedule building on the following conditions:
(i) The tenant shall file an affidavit before the Rent Control Court within one month from today unconditionally undertaking to vacate the premises or or before 31.5.2014.
(ii) The tenant shall pay the arrears of rent at the rate of 400/- per month to the landlord by depositing the same before the Rent Control Court, within a period of one month from today.
(iii) If the tenant fails to comply with any of the conditions mentioned above, the order granting time till 31.5.2014 will stand vacated automatically without any further order.
(iv) If the tenant complies with the aforesaid conditions, proceedings in execution shall stand stayed till the expiry of 31.5.2014. R.C.R. No. 34 of 2014 8
(v) The petitioner shall produce a certified copy of this order before the Rent Control Court and she shall also send a copy of the order to the respondent-landlord by registered post and shall produce the postal receipt before the Rent Control Court.
Sd/-
(K.T.SANKARAN, JUDGE) Sd/-
(P.UBAID, JUDGE) ma /True copy/ R.C.R. No. 34 of 2014 9