Kerala High Court
K.Kanaran vs Alakkadan Sobha on 8 July, 2015
Author: K.Ramakrishnan
Bench: P.N.Ravindran, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937
RCRev..No. 72 of 2016 ()
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AGAINST THE JUDGMENT IN RCA 90/2009 of ADDL.DC - II,
THALASSERY, DATED 08.07.2015.
&
AGAINST THE ORDER IN RCP 48/2003 of MUNSIFF COURT,
THALASSERY, DATED 23.03.2009
REVISION PETITIONER(S)/RESPONDENTS:
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1. K.KANARAN,
KUNNUMMAL HOUSE, KANNOTHUMALA, P.O. KAMPETTY,
THALAPPUZHA NORTH, WAYANAD.
2. KUNNUMMAL RAJAN,
B4/138, PRASANTHI BEEDVI, P.O. PALAYAD,
THALASSERY, KANNUR DISTRICT.
BY ADVS.SRI.C.P.PEETHAMBARAN
SMT.MINI.V.A.
RESPONDENT(S)/RESPONDENT:
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ALAKKADAN SOBHA,
D/O. LATE KRISHNAN, KRISHNA NILAYAM, P.O. PALAYAD,
THALASSERY, KANNUR DISTRICT 670 701..
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
22-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ss
P.N.RAVINDRAN &
K.RAMAKRISHNAN, JJ.
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R.C.R.No.72 of 2016
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Dated this the 22nd day of February, 2016
ORDER
K.RAMAKRISHNAN, J.
Tenants/respondents in R.C.P.No.48/2003 on the file of the Rent Control Court, Thalassery are the revision petitioners herein. Respondent herein filed R.C.P.No.48/2003 for eviction on the ground of arrears of rent and bonafide need and sub lease under Section 11(2)
(b), 11(3) and 11(4)(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act'. It is alleged in the petition that the petition schedule building was let out to first respondent on a monthly rent of 80/-, as he was doing beedi work and 2nd respondent His younger brother is working along with the first respondent and recently he got information that, he had abandoned the business and sublet the building to the 2nd respondent. The R.C.R.No.72 of 2016 2 rent was kept in arrears from August 2002 and the petitioner requires the petition schedule building for the purpose of conducting a garment business. Though a notice was issued to pay the arrears of rent and vacate the sublease, that was not done. The other tenants have expressed their willingness to surrender the building. So he filed the petition to evict the respondents from the petition schedule building on the ground of arrears of rent, bonafide need and sublease.
2. Respondents entered appearance and filed counter denying the allegation of bonafide need and the arrears of rent and sub lease. According to them, the buillding was taken on rent from the father of the petitioner by the 2nd respondent 24 years ago, agreeing to pay a rent of 80/- per month. The first respondent was residing at Thalapuzha with his family in his own property since 13 years back and he is not doing any business in the petition schedule building. The petitioner is now in possession of R.C.R.No.72 of 2016 3 another room in the ground floor and other tenants never expressed their readiness to vacate the premises as contented by the petitioner. The allegation that the petition schedule building was sublet to the second respondent is not correct. One of the rooms in the possession of the Poozhiyil Balan, was surrendered to the petitioner. Now another person was conducting Ayuredic business in that room. He is none other than the direct nephew of Poozhyil Krishnan and it was let out to a third party. So the need alleged is not bonafide. So they prayed for dismissal of the application.
3. After considering the evidence on record, earlier the court below rejected the application for eviction on the ground of arrears of rent and sub lease, but found the bonafidie need as genuine, rejected the prayer for eviction on the ground of bar under first proviso to Section 11(3) of the Act. Aggrieved by the same, the landlord filed R.C.A.No.134/2004 wrongly stated as R.C.A.No.134/2009 in the appellate court judgment and also filed R.C.R.No.72 of 2016 4 I.A.No.1352/2007 for amendment incorporating a new paragraph stating that now the upstair portion is in the possession of the tenant/respondent and she wants the down stair building for her purpose of starting business in readmade garments and used the upstair portion for tailoring work and stocking the materials. One of the tenant in the down stairs surrendered and others have expressed their willingness to surrender. She can start the business only after getting vacant possession of all rooms. Except the respondent/tanant others have expressed their willingness to surrender the building when ever required by the landlord. The rent control appellate authority allowed the application for amendment on cost and remanded the case for fresh disposal as per the judgment dated 12.03.2008, confirming the rejection of claim for eviction under Section 11(2) and 11(4)(i) of the Act, but remanded only for the purpose of considering the question of eviction under Section 11(3) of the Act alone. Thereafter the tenant filed R.C.R.No.72 of 2016 5 additional counter denying the allegation that the landlord requires the entire building for her purpose. After remand PW1 was again examined and PW2 another witness was also examined. No further evidence was adduced on the side of the respondents. After considering the evidence on record, the rent control court found that the need alleged is bonafide and the tenant is not entitled to get the second proviso of protection. The landlord was not in possession of any suitable building for the purpose and allowed the application under Section 11(3) of the Act. Aggrieved by the same the revision petitioners filed R.C.A.No.90/2009 before the rent control appellate authority, Thalassery, which was made over to Second Additional District Court, Thalassery for disposal. In this appeal also the tenant filed I.A.No.571/2013 to recourse the document obtained from the Special Grade Secretary, Dharmadam Grama Panchayat to show that the landlord had let out the building which she obtained during the pendency of the proceedings to others. R.C.R.No.72 of 2016 6 The appellate court found that, accepting the submissions made by the counsel for the landlady that the building was for the time being given to the relative on temporarily arrangement and he had agreed to surrender the building after getting this building also, and only after getting this building she can do the intended business in the premises and court below dismissed the appeal confirming the order of eviction passed by the rent control court under Section 11 (3) of the Act. Aggrieved by the same, the present revision has been filed by the revision petitioner/respondents in the court below.
4. Herad Sri.C.P.Peethambaran, counsel appearing for the revision petitioner.
5. The counsel for the revision petitioner submitted that the need alleged is not bonafide and earlier the petition was filed for eviction of the petition schedule building alone. Thereafter, in the appeal they filed an application for amendment stating that she wants the entire R.C.R.No.72 of 2016 7 room including the petition schedule building for her intended purpose. Thereafter also they came into possession of other rooms, but that was not occupied by them, not started business, so that shows lack of bonafides on the part of the landlady and he prayed for allowing the revision.
6. We have gone through the impugned orders of rent control court as well as the appellate authority. It is true that earlier the landlady filed an application for eviction of the petition schedule building alone, but the rent control court found that the need alleged is bonafide. It was dismissed on the ground that she was in possession of another room and no special reasons have been given for not occupying the same and the application for eviction under the bonafide need was dismissed on that ground. Aggrieved by the same, she filed an appeal before the rent control appellate authority as R.C.A.No.134/2004 and filed an application as I.A.No.1352/2007 for amendment expanding her need to the entire building and that was R.C.R.No.72 of 2016 8 allowed and the matter was remanded for fresh consideration on the question of bonafide need alone. It is thereafter that on the basis of evidence, court below came to the conclusion that the need alleged is bonafide and the tenant had failed to prove the ingredients of proviso to protection and allowed the application under Section 11(3) of the Act.
7. In the appellate court, the petitioner filed I.A.No.571/2013 and produced certain documents as additional documents to prove that after getting possession of the vacant rooms in the same building, she had let out the same to others, but it is seen from the judgment of the appellate court that the counsel for the landlady had submitted that they are their own relatives and agreed to vacate the premises as and when the petitioner needs the building. Further the same contentions was taken earlier in respect of another tenant on the basis of which the rent control petition was dismissed on the ground of bonafide R.C.R.No.72 of 2016 9 need by the then rent controller on the basis of the bar first proviso to Section 11(3) of the Act. The said tenant was examined as PW2 and he had expressed his willingness to surrender the building as and when the landlady requires the same and she had also stated that the need alleged is bonafide and it is only a temporary arrangement. The same contention now was taken by the tenant by producing certain documents at the appellate stage and the appellate court after considering the submissions made by the counsel appearing on both sides came to the conclusion that the landlady requires the entire building for her purpose getting piece meal eviction is not sufficient and she is not expected to keep the building vacant also for long period. So making temporary arrangement during pendency of this petition will not affect her bonafides and came to the conclusion that, thatthis will not be hit by first proviso to Section 11(3) of the Act. So we do not find any reason to interfere with the concurrent findings of the court below on this aspect. R.C.R.No.72 of 2016 10
8. Further no evidence was adduced on the side of the tenant to prove that they were solely eking their livelihood from the income derived from the business conducted in the plaint schedule building and no other buildings are available in the locality.
9. On the other hand, the evidence will go to show that there are buildings available, but their case was that they are not able to pay the rent demanded by the landlord, for which no acceptable evidence was adduced. So under the circumstances, courts below were perfectly justified in coming to the conclusion that the need alleged by the landlord is bonafide and the tenant is not entitled to get the benefit of first proviso or second proviso to Section 11(3) of the Act and rightly ordered eviction under Section 11(3) of the Act. We do not find any reason to interfere with the concurrent findings of the court below on facts invoking the power under Section 20 of the Act.
10. Before disposing the revision the counsel for R.C.R.No.72 of 2016 11 the revision petitioner sought one year time to vacate the premises. Considering the nature of business conducted, we feel that the time sought for is on the higher side. Further the rent control petition started in the year 2003, the landlady is not in a position to get vacant possession of the building for the last 12 years.
Considering theses aspects, we feel that six months time can be granted to the revision petitioner to vacate the premises, on condition that they will file an undertaking before the rent control court or before the execution court, if any execution petition is pending undertaking that they will surrender the building without any objection on the expiry of the time fixed by this court and they will deposit the arrears of rent in the agreed rate if any and continue to pay the amount till surrender vacant possession of the building to the landlady and they will not induct any strangers or alienate or do any act in the premises detrimental to the value of the building and they R.C.R.No.72 of 2016 12 shall file an undertaking within a period of three weeks from today. If the revision petitioners did not file the undertaking as stated above within the time mentioned by this court, then they are not entitled to get the benefit of time to vacate the premises as fixed by this court. So the revision petition is dismissed with the above observation and direction.
Sd/-
P.N.RAVINDRAN (JUDGE) Sd/-
K.RAMAKRISHNAN (JUDGE) // True Copy// P.A. to Judge ss