Unniyen Pattemmal Raveendran vs Thottantavida Kaniyankandy Mariyu on 31 August, 2016

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Kerala High Court

Unniyen Pattemmal Raveendran vs Thottantavida Kaniyankandy Mariyu on 31 August, 2016

1.These revision petitions are filed challenging a common judgment passed in R.C.R.Nos. 202/2011 and 45/2012 on the files of the Rent Control Appellate Authority, Thalassery and the parties are common. Hence, these revision petitions are heard together and disposed of accordingly.

2.The landlords filed R.C.P.Nos. 124/2010 and R.C.P.122/2010 against the respondents herein who are in occupation of the petition schedule shop rooms, seeking an order of eviction under Sec.11(3) of Kerala Buildings (Lease and Rent Control) Act (for short, "the Act"). According to the landlords, the petition schedule shop rooms are required for the son of the 1st petitioner for starting a business of Mobile RCR.Nos.47 & 50/2017 2 Phone Sales and service. According to the 1st petitioner, her son Suhaib is unemployed and he wants to start the aforesaid business, for his livelihood. The landlords have no other suitable vacant rooms, for the aforesaid purpose and the said Suhaib is depending on the landlords for the petition schedule shop room.

3.The tenants resisted the bona fides of the need contending that it is a ruse for eviction only. According to them, they are mainly depending upon the income from the business in the petition schedule shop rooms and no other suitable buildings are available in the locality to shift their business from the petition schedule shop rooms. Hence they are entitled to get a protection under the 2nd proviso to Sec.11 (3) of the Act. It is also contended that the landlords have other vacant rooms in the 1st floor of the building and they could have started the aforesaid business in the 1st floor of the said shop rooms.

RCR.Nos.47 & 50/2017 3

4.On the aforesaid rival pleadings both parties adduced evidence. After analyzing the evidence on record, the Rent Control Court found that the landlords have given special reason for not occupying the vacant rooms in the 1st floor of the building and the need projected in the petition is a bona fide one. So also it was found that the tenants are not entitled to get protection under the 2nd proviso to Sec.11(3) of the Act.

5.Though these Revision Petitions have been filed on various grounds, the learned counsel for the tenants advanced arguments contending that the courts below have failed to consider the available evidence on record under the 1st proviso to Sec.11(3) of the Act and the bona fides of the need claimed by the dependent in their correct perspective. In view of the submissions at the bar, the question to be considered is whether there is any illegality or RCR.Nos.47 & 50/2017 4 impropriety in the findings whereby the courts below concurrently found that the bona fides of the need is not hit by the 1st proviso to Sec.11 (3) of the Act and the need projected in the petition is a bona fide one. Going by the impugned findings of the courts below it is seen that in the rent control petition itself landlords have disclosed the availability of vacant rooms in the 1st floor of the same building and contended that the same are not suitable for conducting the proposed business of mobile phones. When the son of the 1st petitioner, who requires the petition schedule shop rooms, was examined as PW1, in cross- examination he stood by the reason stated in the rent control petition for not occupying the vacant rooms in the 1st floor and nothing has been brought out to discredit his evidence. Further he has deposed that a common narrow staircase is provided for all the rooms in the 1st floor and considering the difficulty to reach the 1st floor, the 1st floor is not suitable for RCR.Nos.47 & 50/2017 5 conducting the mobile shop. According to him, the 1st floor has no vicinity from the road and there is no facility for displaying the consumable items. After analyzing the special reasons given by PW1, the courts below concurrently arrived at a finding that he has succeeded in giving special reasons for not occupying the rooms in the 1st floor. We do not find any kind of perversity in the appreciation of evidence of PW1 with respect to the reason for not occupying the rooms in the 1st floor.

6.Coming to the bona fides of the need, in the rent control petition itself it is averred that the dependent (PW1) is an Engineer and he is desirous of starting a Mobile Phone Sales Shop and Service Centre. There is no evidence to prove that he has any avocation for his livelihood. It has come out in evidence that he had worked abroad for a short time and according to him his employment abroad is not a permanent employment and he will come back at the moment RCR.Nos.47 & 50/2017 6 when he gets vacant possession of the petition schedule building. We do not find any reason to interfere with the findings of the courts below that his employment abroad for the time being will not negative the claim for the petition schedule building. Thus, on an analysis of the findings concurrently arrived at by the courts below, we find that the courts below are justified in finding that the need projected is a bona fide one and the bona fides of the need is not hit by the 1st proviso to Sec.11(3) of the Act.

7.The tenants have no case that the courts below have omitted to consider any valuable evidence or placed reliance on any relevant or wrong proposition of law. Therefore this Court is not inclined to interfere with the factual findings rendered by the courts below concurrently.

8.As regards the 2nd proviso, it is true that the Rent Control Court has not considered the RCR.Nos.47 & 50/2017 7 evidence on record under the 2nd proviso to Sec.11(3) of the Act. But the Appellate Authority has meticulously considered the entire evidence on record under the 2nd proviso and found that the tenants have failed to discharge the burden of proof under the 2nd proviso. It is trite law that the burden of proof under the 2nd proviso is on the tenant. The Appellate Authority observed that there is no satisfactory evidence to prove that they are mainly depending for livelihood on the income derived from the business or trade conducted in the tenanted premises. Similarly it has come out in evidence that several other vacant shop rooms are available in the locality to shift the business from the petition schedule shop rooms but the tenants have not conducted any effective enquiry as regards the availability of other vacant rooms in the locality. It is pertinent to note that the tenant themselves admitted that other vacant rooms owned by the father-in-law of PW1 is available in the locality. Therefore, the RCR.Nos.47 & 50/2017 8 admission from the part of the tenants themselves as regards the availability of other rooms, is fatal to the tenants. Hence these revisions fail and are accordingly dismissed.

9.The learned counsel for the petitioners prayed for some time to surrender the tenanted premises. Having regard to the entire facts and circumstances of the case, the revision petitioners/tenants are given six months' time from today to vacate the petition schedule shop rooms, on the following conditions.

(1). The revision petitioners/tenants 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 they will vacate the petition schedule shop rooms within six months from today.

(2).The revision petitioners/tenants shall deposit the entire arrears, if any, within one month, before the Execution Court or the Rent Control Court, as the case may RCR.Nos.47 & 50/2017 9 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 and the landlords will be at liberty to proceed with the execution of the eviction order.

Sd/-

K.HARILAL Judge Sd/-

A.M.BABU Judge Mrcs/21.8 //True Copy// P.S.To Judge

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