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2016 DIGILAW 412 (KER)

K. v. Kunhamina VS K. T. Aboobacker Haji

2016-04-08

K.RAMAKRISHNAN, P.N.RAVINDRAN

body2016
ORDER K. Ramakrishnan, J. 1. The tenant - the respondent in R.C.P.No.59 of 2011 on the file of the Rent Control Court (Principal Munsiff), Kannur is the revision petitioner herein. The respondent herein is the landlord of the petition schedule building. The respondent/landlord filed the above rent control petition alleging that the petition schedule building was let out to the husband of the revision petitioner/tenant on a monthly rent of Rs.300/- as per kaichit dated 1.6.1985. The present rent of the building is Rs.900/- per month. She had paid rent up to and inclusive of August 2010 and thereafter kept it in arrears. The husband of the revision petitioner who had taken the building for running a petty stationery business, died during August, 2010. Even prior to that, the building remained closed for more than a year and it used to be opened by the tenant only occasionally. After the death of the original tenant, his tenancy right in respect of the building devolved upon the revision petitioner and others. No business is being conducted in the petition schedule building and it is lying closed permanently. The landlord/respondent herein bonafide requires the petition schedule building and other rooms for starting display and sale of furniture and ancillary items. He had come back from Middle East two years back as he lost his job and he is sitting idle without any job. He has no intention to go back and his intention is to do furniture business in the petition schedule building as also the adjacent room, which is in the possession of Hamsa and he is taking steps to get that room also vacated. He is hale and healthy. His wife and children are depending on him. He has previous experience in the field of the proposed business and is having financial background as well. He has no suitable vacant buildings in his direct or indirect possession. The petition schedule building is situated in an ideal place near Cherukunnu, Thara junction near Payangadi road. He can also avail loan from the banks in order to start the proposed business. The tenant is not depending on the income derived from the business conducted in the petition schedule building and all her children are working abroad and are self sufficient. There are other rooms available in the locality for shifting the business as well. He can also avail loan from the banks in order to start the proposed business. The tenant is not depending on the income derived from the business conducted in the petition schedule building and all her children are working abroad and are self sufficient. There are other rooms available in the locality for shifting the business as well. Though a notice has been issued requesting her to surrender possession, it was returned with the endorsement 'not known'. So the respondent/landlord has no other remedy except to approach the court by filing an application for eviction under sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Act for short. 2. The revision petitioner, who is the respondent in the rent control petition entered appearance and filed a counter statement contending as follows: 3. The petition is not maintainable. The revision petitioner/tenant had filed O.S.No.18 of 2011 against the landlord/respondent herein for an injunction restraining him from dispossessing the tenant by force when he tried to trespass into the petition schedule building. The monthly rent is Rs.900/- but no amount is in arrears. It is false to contend that the petition schedule building was lying closed even during the life time of this revision petitioner's predecessor. There is absolutely no basis in contending that the building is lying closed. The husband of the revision petitioner was conducting a cool bar under the name and style "Good Luck" cool bar and after his death, she is continuing the business with the help of her son-in law. The allegation that the respondent herein requires the petition schedule building for staring a business and he has got previous experience and financial back ground etc is not correct. He is aged 70 years and is leading a retired life. He was abroad for many years and hence there is no need for him to start any business. Even if he wants to start a business, his own multi storied buildings in his possession that are lying vacant are available. The revision petitioner/tenant is aged 60 years and has no property or other source of income. Due to the untimely death of her husband, she has no other way except to continue the business and she is solely depending on the income from the business conducted in the petition schedule building. The revision petitioner/tenant is aged 60 years and has no property or other source of income. Due to the untimely death of her husband, she has no other way except to continue the business and she is solely depending on the income from the business conducted in the petition schedule building. No buildings are available in the locality for her to shift the business. She had not received any notice. So, the landlord is not entitled to get the relief. She prayed for dismissal of the application. 4. PWs 1 and 2 were examined and Exts.A1 to A3 were marked on the side of the landlord. RWs 1 and 2 were examined and Exts.B1 to B8 were marked on the side of the tenant. Ext.C1 was also marked. Exts.B4 and B5 series were marked through an advocate commissioner who examined the witnesses subject to objection. Later they were admitted in evidence. After considering the evidence on record, the rent control court found that the need alleged by the landlord is bonafide and that the tenant is not entitled to get the protection of the second proviso to section 11(3) of the Act and allowed the application under section 11(3) of the Act. The court below also found that though the landlord is in possession of a hall in the second floor of the building, he has given special reasons and as such the bar under first proviso to section 11(3) of the Act is not attracted. Aggrieved by the same, the revision petitioner/ tenant filed R.C.A.No.184 of 2012 before the Rent Control Appellate Authority, Thalassery which was made over to the First Additional District Court, Thalassery for disposal. The learned First Additional District Judge dismissed the appeal confirming the order of eviction passed by the court below under section 11 (3) of the Act. Aggrieved by the same, the present revision has been preferred by the revision petitioner/respondent before the court below. 5. Heard Sri.C.K.Sreejith, learned counsel appearing for the revision petitioner and Sri. Sreekumar Chelur, learned counsel appearing for the respondent. 6. Learned counsel for the revision petitioner submitted that the fact that the landlord was in possession of three rooms in the upstairs was not disclosed in the petition. This fact was suppressed and this will go to the root of the bonafide need alleged by the landlord. Sreekumar Chelur, learned counsel appearing for the respondent. 6. Learned counsel for the revision petitioner submitted that the fact that the landlord was in possession of three rooms in the upstairs was not disclosed in the petition. This fact was suppressed and this will go to the root of the bonafide need alleged by the landlord. If the landlord is in possession of any other room, he will have to plead that fact and also give special reasons for not occupying the same in the petition itself which he has not done and as such courts below were not justified in coming to the conclusion that the bar under first proviso to section 11(3) of the Act is not attracted. He relied on the decision reported in Bhargavi Amma P. v. K.P. Ajayakumar, 2016 (1) KHC 347 (DB)] in support of his case. He further submitted that the landlord is aged 70 years and he is a gulf returnee and there is no necessity for him to conduct any business. According to him, the findings of the court below are perverse and unsustainable in law and the same are liable to be set aside. He also submitted that the tenant had given evidence regarding the protection available under the second proviso to section 11(3) of the Act and the same has not been properly appreciated by the courts below. 7. On the other hand, learned counsel for the respondent submitted that the upstairs portion of the building is a hall and it is in the second floor and he had mentioned in the petition itself that he has no suitable building in his possession. If he had a suitable building in his possession and he is not intending to occupy the same, he will have to disclose this fact in the petition. Further, if it is brought out in evidence that he is in possession of another building, then he need only give special reasons for not occupying the same and it is for the court to consider this aspect and satisfy itself about the special reasons and then pass appropriate orders. As the courts below have correctly appreciated the evidence and come to the correct conclusion the concurrent findings of the courts below on this aspect does not call for any interference. 8. As the courts below have correctly appreciated the evidence and come to the correct conclusion the concurrent findings of the courts below on this aspect does not call for any interference. 8. It is an admitted fact that the petition schedule building belongs to the respondent herein and it was let out to the husband of the revision petitioner in the year 1985 and he was conducting some business in the petition schedule building and after his death, during August 2010, the tenancy right devolved on the revision petitioner and others and revision petitioner is in occupation of the same. According to the landlord, the tenant is not conducting any business in the petition schedule building and even prior to the death of her husband, it was lying closed and he wants the petition schedule building and another building for the purpose of conducting a furniture business and he has no suitable building in his possession for that purpose. The bonafide need alleged was denied by the tenant and she had also contended that the landlord is the owner of a multi storied building and there are suitable rooms available in that complex. She had also claimed the benefit of the second proviso to section 11(3) of the Act. 9. The bonafide need alleged was denied by the tenant and she had also contended that the landlord is the owner of a multi storied building and there are suitable rooms available in that complex. She had also claimed the benefit of the second proviso to section 11(3) of the Act. 9. Section 11(3) and the first and second provisos to section 11(3), which are relevant portions required for consideration of this revision read as follows: Section 11(3).A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: In the first proviso it is stated that if the landlord is in possession of any other suitable building in the same city, town or village, except where the rent control court is satisfied that for special reasons in any particular case it is just and proper to do so, it shall not give any direction to surrender vacant possession of the building by the tenant to the landlord. A reading of the first proviso will go to show that, that proviso only warrants that if the landlord is in possession of any other vacant room in the same city or village, then unless the court is satisfied with the special reasons given by the landlord as to why he is not occupying the same, the court need not pass order of eviction if the court is not satisfied with the special reasons given by the landlord in respect of the same. 10. 10. In the decision reported in Jerry Joseph v. Selvaraj, 2002 (2) KLT 129 it has been held that: "It is now settled that even if the landlord failed to mention in the petition for eviction about the other premises belonging to him, if materials about those alternate accommodation have been placed before the Court and the mater has been adequately considered by the court without causing any prejudice to the tenant, the non disclosure of the availability of buildings in the petition is immaterial." Such a finding was arrived at by the Division Bench of this Court after relying on the decision reported in M.L.Prabhakar v. Rajiv Singal, 2001 (2) SCC 355 , wherein it has been urged that there was suppression on the part of the landlord inasmuch as he did not disclose the premises which were available at No.16/57, Gali No.1, Joshi road as well as the premises which are available at Basant Road, Pahar Ganj. On the other hand, on behalf of the respondent, Dr.Singhvi has submitted that the only requirement is to disclose such accommodation as is suitable for residence of the landlord. Dr. Singhvi submitted that if there is no other residential accommodation which is suitable then there is no duty to disclose. Dr. Singhvi relied upon the authority in the case of Ram Naarain Arora v. Asha Rani, 1991 (1) SCC 141, wherein it has been held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bonafide requirement. It is held that whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. It is held that whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non disclosure by the landlord. It was held that the landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. In this case even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused. The parties have squarely dealt with this question". 11. In this case even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused. The parties have squarely dealt with this question". 11. So it is clear from the above dictum that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before court and he had given special reasons for not occupying the same and both parties have adduced evidence on this aspect understanding the case of each other, then no prejudice will be caused to the tenant on account of the non disclosure of this fact in the rent control petition and it is for the court to consider the suitability or otherwise of the building so as to deny eviction on the ground of bonafide need. 12. In the decision reported in Raghvan v. Govindan Nambiar, 1995(1) KLT 596 , it has been held that: "Section 11(3) recognizes the principle that in spite of the restrictions imposed against eviction of the tenant the genuine need of the landlord must supersede even the tenant's need. But through the three provisos to the sub-section, the legislature provided certain inbuilt safeguards for tenants against unbridled use of the ground by their landlords. The second proviso is embodied to keep even the genuine need of the landlord (to have vacant possession of the building) at bay vis- a-vis the tenant's need, if the source of livelihood of the tenant would be at peril as a consequence of eviction. The second proviso warrants consideration only after the landlord succeeds in establishing that his need is bonafide. Otherwise, court is not required to proceed to the second proviso to all. But the first proviso is different. It embodies a wholesome principle having a perceptible bearing on the core of the ground itself as it also helps the court to decide whether the need expressed by the landlord is bonafide. The idea is simple. When a landlord has one building in his possession, how can he seek the help of the court to evict his tenant of another building on the ground of his own need? The idea is simple. When a landlord has one building in his possession, how can he seek the help of the court to evict his tenant of another building on the ground of his own need? The answer is that unless there are special reasons, the landlord cannot be helped by the court to evict the tenant. In the absence of special reasons, the fact of landlord having possession of another building of his own in the same town or village may in some cases tell upon the genuineness of his need. The legislature, therefore, insists on special reasons. The special reasons should be such as would satisfy the court that, in spite of landlord having possession of another building of his own, it would be just and proper to evict the tenant. The first proviso, is, in fact, so embedded in the main body of the sub-section that it is really an integral part of it S.11 (3) of the Act would have been incomplete without the first proviso. Even if such a proviso was not specifically set for in the sub-section, the principle involved therein could have been read into the subsection. The utility in relegating the principle in the form of a proviso was perhaps to cast the onus of proof at different stages of consideration. The primary burden, to show that landlord has a building of his own in possession, is of course on the tenant unless it is an admitted fact. When once it is shown that the landlord is in possession of another building of his own in the same town or village, the burden swings over to the landlord to establish special reasons. This burden can be discharged either by his own evidence or through the answers elicited from the witnesses of the tenant or through other modes". 13. This also says that the primary burden is on the tenant to prove that the landlord is in possession of another building, and if it is proved, then burden shifts the landlord to give special reasons as to why he has not chosen that building, to the satisfaction of the court. Unless the court is satisfied about the special reasons, then court need not grant eviction under section 11(3). Unless the court is satisfied about the special reasons, then court need not grant eviction under section 11(3). The same principle has been reiterated in Chacko P.Mathew v. Kuttappan, 2002 KHC 583, where it has been held that the primary burden to show that the landlord has a building of his own in his possession is on the tenant unless it is an admitted fact. Once it is shown, the burden swings over to the landlord to establish special reasons; landlord need explain the circumstances and special reasons before the Rent Control Court only if it is established by the tenant that landlord has got other building of his own. 14. In the decision reported in Kunju T.P v. Fathima and others, 2014 (3) KHC 127 , it has been held that only when it is established that the landlord has another building of his own in his possession, which would meet his requirements, he need satisfy the court as to the special reasons for not occupying the said premises. Hence the pleading by the landlord in the petition that schedule room was the most suitable premises under their ownership for starting the proposed business was held to be sufficient as the tenant had no case that the vacant room in the building of the Tourist Home is suitable or more suitable than the petition schedule building. 15. In the decision reported in Bhargavi Amma P. v. K.P. Ajayakumar, 2016 (1) KHC 347 (DB) , it has been held that the landlord not disclosing in the rent control petition that he is in possession of other vacant shop rooms is non-disclosure of a crucial fact that affects the bona fides of the need projected by the landlord. It was obligatory on the part of the landlord to have established the special reasons for non occupation of the said rooms. In the absence of special reasons, it cannot be said that the need put forward is bonafide and the tenant is not liable to be evicted. 16. That was a case where the landlord was having possession of two rooms of similar dimension as the room in the possession of the tenant and he had not given any special reasons for not occupying the same. 16. That was a case where the landlord was having possession of two rooms of similar dimension as the room in the possession of the tenant and he had not given any special reasons for not occupying the same. The rent control court had on that basis come to the conclusion that since there is no special reason provided by the landlord, the bar under the first proviso to section 11(3) will be attracted. But that finding was reversed by the appellate authority and in such circumstances this court reversed the finding of the appellate authority and restored the order of dismissal of the petition under section 11 (3) of the Act by the Rent Control Court. With the above principles in mind, the case on hand has to be considered. 17. It is true that the petitioner has not, in the rent control petition mentioned about the availability of three rooms in the second floor of the same building. But it may be mentioned here that in the petition he had categorically stated that he is not in possession of any other suitable building for this purpose and the petition schedule building is more suitable for the purpose as it is in the ground floor and he wants to start a furniture business with display facility and he had already taken steps to evict the tenant occupying the neighbouring room and he wants to start the business in both the rooms. So it cannot be said that he had not mentioned in the petition the special reasons for choosing the petition schedule building for his purpose. Further the initial burden is on the tenant to prove that the building in the possession of the landlord is suitable for the business proposed to be conducted by the landlord in the petition schedule building and the neighbouring room. 18. It was admitted by PW1 that he is in possession of rooms with Nos.506,505 A and 505B as seen in Ext.B1. He had further stated that it is a hall, which is situated in the second floor of the building and since it was not converted into rooms, he had not mentioned the same in the petition. 18. It was admitted by PW1 that he is in possession of rooms with Nos.506,505 A and 505B as seen in Ext.B1. He had further stated that it is a hall, which is situated in the second floor of the building and since it was not converted into rooms, he had not mentioned the same in the petition. Further, it was admitted by Rws 1 and 2 that it is a hall and it is in the second floor of the building and there is only a narrow staircase to go to that hall. It is also in a way admitted that it was not occupied for a long time and it is not in a repairable condition as well. Ext.C1 is the Commissioner's report in RCP.No.61 of 2011, which the same landlord filed for eviction in respect of the adjacent room and it was prepared by PW2, the Commissioner and she was examined and it was mentioned in Ext.C1 commissioner's report that the building now said to be in the possession of the landlord is in the second floor of the building and it is a hall and the floor and the ceilings are in a damaged condition. It is an admitted fact that the alternate building said to be in the possession of the landlord is a hall situated in the upstairs portion of the building and it is not like the rooms in the ground floor portion and it was not occupied for a long time and the ceilings and floor are in a damaged condition. So under the circumstances, it cannot be said that the landlord is in possession of a suitable building for the purpose of starting the intended business which he ought to have disclosed in the petition itself and given special reasons for not occupying the same for not inviting the bar under the first proviso to section 11(3) of the Act. So the dictum laid down in the decisions reported in Bharvai Amma's case (supra) is not applicable to the facts of this case in order to attract the bar under the first proviso to section 11(3) of the Act. 19. So the dictum laid down in the decisions reported in Bharvai Amma's case (supra) is not applicable to the facts of this case in order to attract the bar under the first proviso to section 11(3) of the Act. 19. Under such circumstances, both the courts below have on the basis of the materials available come to the conclusion that the special reasons given by the landlord at the time of evidence for not occupying the rooms in his possession are sufficient to come to the conclusion that the alternate building in the possession of the landlord is not suitable for his purpose and that the special reason can be accepted to order eviction under section 11(3) of the Act. 20. It is an admitted fact that the respondent is a gulf returnee and he is without any employment. Merely because he is a wealthy person, aged 70 years, it is not a ground to come to the conclusion that he need not start any business to augment his income. There is no case for the tenant that the landlord is not healthy to conduct business or he is not capable of conducting the business and the court below had, on the basis of the evidence and appreciating the evidence of PW1, rightly come to the conclusion that the need alleged by the landlord is bonafide and bar under first proviso to section 11(3) of the Act is not attracted. 21. In view of the second proviso to section 11(3) of the Act, even if the landlord proves the bonafide need, if the tenant is able to establish that she is eking out her livelihood from the income from the business conducted in the petition schedule building and there is no suitable room available in the locality, the court will not order eviction under section 11(3) of the Act. But it is settled law that both these limbs will have to be proved by the tenant and if any of the limbs is not proved, then the tenant is not entitled to get that protection. In this case the evidence of PW1 will go to show that there are other buildings available in the locality and the evidence of Rws1 and 2 shows that they have not made any earnest enquiry about the availability of other buildings in the locality for shifting their business. In this case the evidence of PW1 will go to show that there are other buildings available in the locality and the evidence of Rws1 and 2 shows that they have not made any earnest enquiry about the availability of other buildings in the locality for shifting their business. Further, it is seen from the evidence that the tenant is not conducting any business but it is being conducted with the help of her son-in-law and it has been brought out in evidence that her sons are well off. So the courts below were perfectly justified in coming to the conclusion that the tenant has failed to prove that she is entitled to get the protection of the second proviso to section 11(3) of the Act and rightly ordered eviction under section 11(3) and the concurrent findings of the court below on this aspect do not call for any interference invoking the power under section 11(3) of the Act. Considering the circumstances, this Court feels that six months time can be granted to the revision petitioner to vacate the premises. So, six months time from today is granted to the revision petitioner to vacate the premises on condition that she shall file an undertaking before the rent control court or before execution court in the form of an affidavit that she will surrender vacant possession of the building on the expiry of the period of six months granted by this Court i.e, on or before 8.10.2016 without any objection and shall remit the arrears of rent, if any, on the agreed rate on or before 18.5.2016 and continue to pay the same till surrender possession of the building as directed above and that she will not sublet or induct third parties in possession and commit any act of waste in the petition schedule building and she shall file an undertaking to that effect on or before 18.5.2016. If the undertaking is not filed within the time specified above, then the benefit given by this court namely six months time to surrender possession, will not be available to her. With the above observations and directions, the revision petition is dismissed.