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2004 DIGILAW 309 (KER)

Jayraj v. V. T. Thomas

2004-07-02

J.M.JAMES, K.S.RADHAKRISHNAN

body2004
Judgment :- Radhakrishnan, J. Whether the acquisition of a property by the wife of the landlord would be fatal to the plea raised by the tenant under the first proviso to section 11(3) and also to the plea of bona fides is the question that has come up for consideration in this case. Landlord is aggrieved by the order of the Appellate Authority rejecting his plea of bona fide need under Section 11(3) on the ground that a building owned by his wife was rented out after the filing of the rent control petition. 2. The petition schedule room is part of a two storied building situated approximately in three cents of land in Andamukkam Village. The tenanted premises, a room in the ground floor, was purchased by the landlord vide sale deed No.2373/96 dated 27-6-96. The shop room originally belonged to one Bhaskaran who rented out the same to the tenant wherein he is conducting business in the name and style Raju Agencies. Upstair portion of the building is owned by the father of the petitioner landlord bearing No.574, wherein petitioner along with his father-in-law and wife are conducting a business by name Sivasakthi Paints. Landlord’s wife purchased a room on 27-12-96 near to the tenanted premises. Landlord is conducting a manufacturing unit of tinker paste by name and style “Amma Enterprises” at Puthur about 25 kms. away from the petition schedule premises. Petitioner has no suitable building for the sale of his tinker paste. The petition schedule building belongs to the landlord is situated in a commercially important area. Consequently he bona fide required the said premises for storing and selling tinker paste. Petitioner after one year from the date of purchase of the tenanted premises requested the tenant to vacate the premises. Tenant did not vacate the premises. Landlord then filed the present rent control petition on 7-11-1997. 3. Tenant resisted the petition contending that there is no bona fides in the plea of the landlord. Tenant contended that since he did not agree for enhancement of rent, landlord is trying to evict him so as to let out the premises for higher rent. Further it is also stated that the landlord is also conducting business in the upstair portion of the tenanted premises which is sufficient for his requirement. Tenant contended that since he did not agree for enhancement of rent, landlord is trying to evict him so as to let out the premises for higher rent. Further it is also stated that the landlord is also conducting business in the upstair portion of the tenanted premises which is sufficient for his requirement. Further it is also stated after filing of the rent control petition the adjacent room bearing door No.573 was rented out to one Ahammedkoya on 27-11-1997. Though the said room stood in the name of the landlord’s wife actually it was purchased by the landlord in the name of his wife with the funds advanced by the landlord. He therefore contended that there is no bona fides in the plea of the landlord. Benefit of the first proviso to section 11(3) was also urged by the tenant. 4. Landlord was examined as PW1. A commission was taken out who was examined as PW-2. An employee of the petitioner was examined as PW3. A taxi driver at Chinnakada who is dealing with the petitioner’s unit “Amma Enterprises” was examined as PW-4. A1 to all documents were produced on the side of the landlord. Tenant was examined as CPW1. CPW2 was also examined on the side of the tenant. C1 is the commission report. C2 is mahazar. Rent Control Court after considering the oral and documentary evidence found that the need urged by the landlord is bona fide. Rent Control Court also found that the landlord requires the tenanted premises for selling his product of tinker paste. Rent Control Court also found that the tenant has failed to establish both the limbs of second proviso as well and ordered eviction. 5. The tenant took up the matter in appeal. Appellate Authority found that Exts.C1, C2 and the evidence of PW2 would show that there is no sufficient space for the landlord to stock the product of tinker paste in his shop room, but rejected the plea of bona fide need on the ground that after filing of the rent control petition his wife has let out the adjacent room to a third party. Appellate Authority therefore concluded that the tenant is entitled to get the benefit of first proviso to section 11(3). Appellate Authority therefore concluded that the tenant is entitled to get the benefit of first proviso to section 11(3). Appellate Authority therefore allowed the appeal and set aside the order of the Rent Control Court and held that the landlord is not entitled to get eviction under section 11(3) of the act. Aggrieved by the same this revision has been preferred. 6. Counsel appearing for the respondent tenant Sri. R.D. Shenoi fairly submitted that the findings of the Appellate Authority that he is entitled to the benefit of first proviso to section 11(3) cannot be sustained. Counsel however, maintained the stand that he rests his claim not on the basis of first proviso to section 11(3), but on the bona fides of the plea of the landlord. Counsel submitted the landlord has subsequently acquired the nearby shop room in the name of his wife and rented out the same and hence there is no bona fides in the plea. 7. We may point out in view of the decision of this Court in Asher v. Hassankutty Hajee, 2004 (2) KLT 446, the order of the court below that the tenant is entitled to get benefit of first proviso to section 11(3), cannot be sustained since the nearby shop does not stand in his name and he is not the owner. Even if the landlord is a co-owner of a building, this court held, it cannot be said that he has got a building of his own so as to attract the first proviso to section 11(3). The question therefore to be considered is whether such plea can be advanced if the landlord acquires a building in his wife’s name. Counsel for the tenant submitted that if landlord acquires a building in his wife’s name, that is enough to hold that there is no bona fides so as to maintain a petition under section 11(3). 8. We may examine the question whether the plea under section 11(3) can be defeated on the ground that a building owned by landlord’s wife has been let out after the filing of the rent control petition. Admittedly, building No.573 adjacent to the tenanted premises was purchased by the landlord’s wife on 27-12-1996 was rented out on 27-11-97 for an amount of Rs.2250/- after the rent control petition was filed on 7-11-1997. Admittedly, building No.573 adjacent to the tenanted premises was purchased by the landlord’s wife on 27-12-1996 was rented out on 27-11-97 for an amount of Rs.2250/- after the rent control petition was filed on 7-11-1997. The building which is rented out admittedly stands in the name of the wife of the landlord. Appellate Authority took the view that though the building stands in the name of the wife the first proviso to section 11(3) would be attracted. The Appellate Authority also concluded that the wife might have purchased the premises by the funds advanced by the landlord. Appellate Authority also concluded that the landlord has failed to establish that the building was purchased by the wife with her own funds. 9. We find it difficult to accept the reasoning of the Appellate Authority, especially, after coming into force of the Benami Transaction (Prohibition) Act, 1988. Further since the property stands in the name of the wife presumption is that the property belongs to the person in whose name the sale deed stands and the burden to prove that it was benami is on the person who alleges it. If it is the case of the tenant that the building was purchased by the landlord in the name of the wife so as to get over the rigour of the first proviso to section 11(3) the burden is entirely on the tenant and not on the landlord. Appellate Authority wrongly cast the burden on the landlord held it is for the landlord to establish that the building was purchased in the name of his wife with her own funds and not by the funds advanced by the landlord. Landlord is not expected to discharge that burden. If the tenant wants to make out a case that it is a sham transaction and also to get the benefit of the first proviso to section 11(3) or to refute the claim of bona fides, the burden is on the tenant. No evidence was adduced by the tenant to dislodge that burden. We therefore hold that the first proviso to section 11(3) would not apply in a case where a landlord’s wife acquires a premises and such acquisition would not fall within the expression “of his own” in the first proviso to section 11(3). No evidence was adduced by the tenant to dislodge that burden. We therefore hold that the first proviso to section 11(3) would not apply in a case where a landlord’s wife acquires a premises and such acquisition would not fall within the expression “of his own” in the first proviso to section 11(3). Even otherwise there is no legal bar in wife acquiring properties in her own name and deal with the same as she wishes. She has purchased room No.573 adjacent to the tenanted premises on 27-12-1996 and rented out to one Ahammedkoya on 27-11-1997 on a monthly rent of Rs.2250/-, which would augment the income of the wife. Facts would also indicate that she is a partner of Sivasakthi Enterprises functioning in the upstair portion of the premises. She might have got her own funds for purchase of the nearby shop room. Therefore the reasoning of the Appellate Authority that the landlord’s wife has acquired a premises near the tenanted premises and rented it out after the filing of the rent control petition would show that there is no bona fides in the plea of the landlord cannot be sustained. 10. We are also of the view even if it is established that room No.573 in fact belongs to the landlord even then there are special reasons to show that building No.573 is not suitable for is requirement. Facts would indicate that the area of the tenanted premises is much more than the area covered by room No.573. A portion of room No.573 occupies stair case leading to the upstair of the building. The commission report also would indicate that the tenanted premises is bigger than room No.573. Therefore the landlord has got special reasons to show that the tenanted premises is more suitable for his business than room No.573. Further room No.573 has already rented out to third party who is conducting business of his own in that room. Rent Control court and Appellate Authority have concurrently found that the tenant is not entitled to get the benefit of second proviso to section 11(3). Tenant could not discharge the burden showing that his main source of income in from the business conducted in the tenanted premises and that there is no building available in the locality. Rent Control court and Appellate Authority have concurrently found that the tenant is not entitled to get the benefit of second proviso to section 11(3). Tenant could not discharge the burden showing that his main source of income in from the business conducted in the tenanted premises and that there is no building available in the locality. Taking into consideration all aspect of the matter, we are of the view the Appellate Authority is not justified in reversing the order of the Rent Control Court. 11. Consequently revision is allowed and the order of the Appellate Authority is set aside and the order of the Rent Control Court would stand restored. Considering the facts and circumstances of the case we are inclined to grant time to the tenant upto 30-10-2004 for vacating the premises on condition that he files an undertaking in the form of an affidavit within one month before the Rent Control Court stating that he would vacate the premises within the aforesaid time and that he would pay arrears of rent, if any, and also future rent.