Kerala High Court
K.Guruswamy vs Lilly John on 13 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
TUESDAY, THE 13TH DAY OF MARCH 2012/23RD PHALGUNA 1933
R.C.R..No.104 of 2012 ()
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AGAINST JUDGMENT IN RCA.NO.148/2008 of ADDL.D.C. KOZHIKODE-III
ORDER IN RCP.NO.170/2007 of PRL.M.C.KOZHIKODE-I
REVISION PETITIONER/RESPONDENT/RESPONDENT:
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K.GURUSWAMY
AGED 57 YEARS, S/O.SUBRAMANIAN, RESIDING AT 5/2035
ST.VINCENT'S COLONY ROAD
KALATHINKUNNU AMSOM DESOM
KOZHIKODE TALUK AND DISTRICT.
BY ADVS.SRI.R.SUDHISH
SMT.M.MANJU
SRI.K.R.RANJITH
RESPONDENT/APPELLANT/PETITIONER:
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1 LILLY JOHN,
W/O.JOHN JUSTUS, RESIDING AT JOVILLA, 33/2574 A,
CHEVAYUR AMSOM AND DESOM,
KOZHIKODE TALUK AND DISTRICT.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13-03-
2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ
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RCR No.104 of 2012
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Dated this the 13th day of March, 2012
ORDER
Ramakrishna Pillai, J The tenant is in revision.
2. It is for the second time that this matter is coming up before this Court. The respondent landlady sought eviction of the revision petitioner from the petition schedule room under Sections 11(3) and 11 (2)(b) of the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter, referred to as 'the Act'). The learned Rent Control Court found that the respondent landlady failed to prove that there was arrears of rent and bonafide need. Thus, the R.C.P was dismissed.
2. The matter was taken by the respondent in appeal before the Rent Control Appellate Authority, which concurred with the finding of the Rent Control Court. The matter came up in revision before this Court as R.C.R No.277/2011.
RCR No.104 of 2012 -:2:-
3. While disposing of the above revision petition, this Court noted that neither the Rent Control Court nor the Rent Control Appellate Authority has chosen to enter into a clear finding on the question as to whether, the need projected by the landlady is bonafide or not. It was observed that both the authorities appear to have been concerned with the tenant's eligibility for the protection of the second proviso to sub section (3) of Section 11. As this Court was unable to sustain the judgment of the Appellate Authority, the judgment of the Appellate Authority was set aside and the matter was remanded back to the Rent Control Appellate Authority to make a reappraisal of the entire evidence on record and to enter specific findings on the following aspects:
(a) Whether the need projected by the landlady is bonafide?
(b) Whether the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11 ?
4. It was further directed that while entering the findings as directed above, the Appellate Authority should have due regard to the RCR No.104 of 2012 -:3:- legal position pertaining to the burden of proof as emerging from various judicial precedents which was binding on him.
5. After remand, the Rent Control Appellate Authority, after hearing both sides ordered eviction under Section 11(3) of the Act by the impugned judgment.
6. We have heard the learned counsel for the revision petitioner. We have perused the impugned judgment.
7. The case of the respondent landlady is that she wants the petition schedule shop room for starting a stationary business for her husband, who is a retired Government employee. To substantiate their case, the respondent landlady and her husband could gave evidence as PW1 and PW2.
8. The main contention taken by the revision petitioner was that there was no specific pleading and evidence to prove that the respondent landlady's husband is her dependent. It was further contended that in the year 2005 the respondent landlady had sent notice for eviction alleging bonafide need of her son and further RCR No.104 of 2012 -:4:- proceedings were abandoned as the rate of rent was enhanced subsequently on the basis of a new lease deed. According to the learned counsel for the revision petitioner, the present need projected is only a ruse for eviction and there is absolutely no bonafides in the need alleged.
9. The fact that the husband of the respondent landlady is a retired Government employee is not in dispute. The evidence tendered by the landlady and her husband would go to show that the husband of the landlady intends to start a stationary business in the petition schedule shop room. The contention raised by the revision petitioner that the husband of the landlady is not depending upon her, does not inspire confidence, as what is relevant in a petition for eviction under the Act. It is not the financial dependency.
10. We notice that there was a specific pleading to the effect that PW2 is depending upon PW1. The trump card of the revision petitioner is Ext.B1 notice said to have issued by the respondent landlady in the year 2005 seeking eviction of the petition schedule shop RCR No.104 of 2012 -:5:- room for conducting a video cassette shop for her son. It was argued that subsequently no action was taken as per Ext.B1 and rent was enhanced subsequently. But, according to us, the fact that the need projected in Ext.B1 notice was abandoned subsequently by the landlady, will not dis-entitle her from seeking eviction from the petition schedule shop room for starting a stationary business for her husband, who is a retired Government employee. We are not prepared to accept the argument advanced by the learned counsel for the revision petitioner that the need alleged is not bonafide, though the submission was very persuasive and attractive.
11. Coming to the first proviso, there is nothing in evidence to show that the respondent landlady is having another room in the locality to shift her business. Regarding the second proviso, though the revision petitioner who is the tenant is duty bound to prove both the limits he could not succeed in establishing the second proviso.
12. It was further argued by the learned counsel for the revision petitioner that though, no finding was entered into by the Rent Control RCR No.104 of 2012 -:6:- Court regarding the bonafides of the need alleged, the Rent Control Appellate Authority on a misconception of facts has observed that the learned Rent Controller has found that the need alleged is bonafide and ordered eviction under Section 11(3). However, we notice that the Rent Control Appellate Authority has reappraised the entire evidence on record and has arrived at the correct conclusion regarding the need alleged as the last court on facts. The reappraisal of evidence by the Rent Control Appellate Authority was sufficient to decide the lis involved.
13. On an anxious consideration of the entire materials placed before us, we are of the definite view that the impugned judgment does not suffer from any illegality, irregularity and impropriety warranting an interference by this Court under Section 20 of the Act.
In the result, the revision petition fails and accordingly the same is dismissed.
When our decision was made known to the learned counsel for the revision petitioner, he requested that the revision petitioner be RCR No.104 of 2012 -:7:- granted one and a half year's time to give vacant possession of the petition schedule shop room. We are of the view that we will not be justified in granting so much time to the revision petitioner without hearing the opposite side. Hence, issue notice to the respondent to determine the extent of time to be given to the revision petitioner.
The execution proceedings, if any, pending shall be kept in abeyance for a period of two months.
sd/-
PIUS C. KURIAKOSE JUDGE sd/-
A. V. RAMAKRISHNA PILLAI JUDGE //TRUE COPY// P.A TO JUDGE krj