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2001 DIGILAW 521 (KER)

Kochukutty v. Raman

2001-09-26

S.MARIMUTHU, S.SANKARASUBBAN

body2001
ORDER S. Sankarasubban, J. 1. This C.R.P. is filed under S.20 of the Kerala Buildings (Lease & Rent Control) Act'. Landlords are the revision petitioners. According to the landlords, their father started construction of a shop room adjoining to a residential room belong to them where they were staying. Father died before the construction of the shop room. Due to financial difficulties it was not possible for further construction. One Mr.Balu offered to complete the construction. This Balu is the brother of respondent's father and respondent agreed to take the room on monthly rent of Rs.200/-. The agreement Ext. A1 was executed between the petitioners and respondent and the aforesaid Balu. As per the agreement, the respondent was handed over the vacant possession of the room after taking out the building on rent. Without raising any objection the construction was completed. Balu and the respondent started business as a tenant. As per the agreement, the rent payable by the respondent was to be adjusted towards the amount payable by the petitioners to the said Balu. The -rental arrangement was for a period of 10 years and this period expired on 31-5-1988. 'According to petitioners, they have no means of livelihood. The first petitioner had passed the SSLC examination and had learned stitching. She wants to start a business in manufacture and sale of ready made garments along with her sister, the 4th petitioner who has passed the Pre degree examination. The 5th petitioner is the brother of the petitioners 1 to 4. He had agreed to find the necessary finance to start the business. The petitioners sent a notice to the respondent to surrender the building and also to pay the . arrears of rent due to them on 15-6-1988. The respondent sent a reply notice on 11-7-88 staling that he has paid the rent to Balu and denied the bona fide needs of the petitioners staled in the notice. According to petitioners, the respondent has his own building for his business. Since the respondent refused to surrender the building, a petition was filed under S.11(3) and 11(8) of the Kerala Buildings (Lease & Rent Control) Act. 2. A counter affidavit was filed by the respondent wherein he has not disputed the ownership but questioned the bona fide needs contending that the petitioners have no intention to do any business. Since the respondent refused to surrender the building, a petition was filed under S.11(3) and 11(8) of the Kerala Buildings (Lease & Rent Control) Act. 2. A counter affidavit was filed by the respondent wherein he has not disputed the ownership but questioned the bona fide needs contending that the petitioners have no intention to do any business. Further it is stated that they have no knowledge and experience in the field of manufacture and sale of ready made garments. It was further case of the respondent that the 5th petitioner is not capable of rendering any financial assistance. 3. Before the Rent Control Court, the first petitioner was examined as PW 1 and Exts. A1 to A3 were marked. The respondent was examined as RW 1 and Exts.Bl to B6 were marked. The report and plan of the commissioner was marked as Ext. C1 and Clause (a). The Rent Control Court rejected the claim of benefits under S.11(3). It also was of the view that S.11(8) was not applicable. Regarding the benefit of second proviso to the tenant, the Rent Control Court expressed the view that the proviso is not applicable. Against that the petitioners approached the Rent Control Appellate Authority. The Rent Control Appellate Authority dismissed the appeal and found that there was no bona fides. Before the lower appellate court the additional documents were produced by the petitioner. 4. We heard the counsel for the petitioners and the counsel for the respondent. 5. This is a case where even for a construction of the building, the petitioners had to depend upon the respondent's uncle. The rent that was being payable by the respondent was being paid to the person who financed a construction of the building. This we are saying to show the circumstances in which the petitioners, were put. The first petitioner and the 4th petitioner wanted to start a business in the ready made garments. This building is situated in Wadakkancherry Village. The first petitioner in her evidence stated that she knows stitching. She also stated that the 4th petitioner also knows stitching. The Rent Control Court refused to believe the evidence of P.W.I on the ground that they have not produced any evidence to prove their knowledge in the field of tailoring. It was of the view that a little knowledge may not be sufficient for entering into the commercial field. She also stated that the 4th petitioner also knows stitching. The Rent Control Court refused to believe the evidence of P.W.I on the ground that they have not produced any evidence to prove their knowledge in the field of tailoring. It was of the view that a little knowledge may not be sufficient for entering into the commercial field. Further it was of the view that the 5th petitioner won't be able to support them. Before the appellate court the petitioners filed I.A.249/90 seeking to produce the documents. One is a bill to evidence the purchase of a sewing machine and the other document showing that the 4th petitioner had undergone a training in tailoring in Mahila Samajam. She has got the necessary knowledge in tailoring. But the appellate court took the view that these documents were produced belatedly. Taking into account all the facts and circumstances of the case, we are of the view that the approach made by the appellate court is not correct. The courts below have misdirected themselves. A business in ready made garments does not mean that the business is going to be in a very modern manner. The idea behind the petitioners is that petitioners 1 and 4 have to make out a livelihood. They want to exercise their skill in tailoring and thereby make their livelihood. Questions were asked in the cross examination as to whether PW 1 knows modern types of tailoring and she was also asked the question whether she knows about the fashion design about embroidery, interlock etc. PW 1 did not answer questions. The court below disbelieved the evidence of PW 1. We are of the view that the courts below were not correct in disbelieving the evidence of PW 1. As has been stated by the Supreme Court in many cases when a person intends to start a business, he may not have sufficient experience in that field of business. He may not be knowing various facets of that business. The petitioners are ladies. They are spinsters. According to them, on their mere evidence the court below should have accepted the need alleged. When they found that the trial court did not accept the evidence of PW 1 because no documents were produced, it was produced before the appellate court. We are of the view that the appellate court was not correct in dismissing that application. According to them, on their mere evidence the court below should have accepted the need alleged. When they found that the trial court did not accept the evidence of PW 1 because no documents were produced, it was produced before the appellate court. We are of the view that the appellate court was not correct in dismissing that application. When these documents were produced before the appellate court, the appellate court rejected the same stating that it was produced belatedly. According to us, the appellate court has not properly exercised its function under O.41 R.27 of the C.P.C. We allow the above IA. and accept the additional documents. On the appreciation of the entire evidence, we are of the view that the need alleged is bonafide. 6. Learned counsel for the respondent submitted that the 4th petitioner died during the pendency of the petition. We do not think that because the death of the 4th petitioner, the first petitioner will not be able to do the business. 7. The next question is with regard to the benefit of the second proviso to the tenant. The Rent Control Court has discussed this matter in extenso. In Para.15 of the order, it is found that the respondent is in possession of a room in the downstairs as well as a room in the upstair portion in the building purchased by him. Commissioner in Ext. C1 report has reported that the room in the downstair is suitable for the conduct of the business now carried on in the petition schedule room. Because of this, it cannot be said that the tenant is entitled to the second proviso. Eventhough this question was considered by the appellate court, we went through the records and we are satisfied that the tenant is not entitled to the second proviso. In the above view of the matter, we set aside the orders of the court below and allow the Civil Revision Petition. The eviction is ordered under S.11(3) of the Kerala Buildings (Lease & Rent Control) Act.