Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 289 (KER)

Jolly Sajeev v. Komachadath Yuseph

2019-03-25

P.D.RAJAN, T.V.ANILKUMAR

body2019
JUDGMENT : T.V. Anilkumar, J. The sole revision petitioner challenging the impugned judgment of Rent Control Appellate Authority dated 4.1.2018 in R.C.A.No.249/2016, is the tenant of the Shop Room bearing Door No.KP.II/436 of Koorachundu Panchayat. She is the 1st respondent in R.C.P.No.14/2015 before the Rent Control Court, Perambra. The 2nd respondent was impleaded in R.C.P.No.14/2015 as her sub lessee. By order dated 31.8.2016, the Rent Control Court, Perambra, issued an order of eviction of both respondents accepting the plea of the landlord, who is the 1st respondent herein that he required the petition scheduled building for the occupation of his wife, Raseena. The order of the Rent Control Court was challenged by the respondents in R.C.P.No.14/2015 and the same was confirmed by the judgment of Appellate Authority which is impugned in this revision filed invoking Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). 2. The landlord-tenant relationship between parties is not a disputed fact. The scheduled shop room belonged to the 1st respondent, the landlord as well as his brother who is presently employed abroad. R.C.P.No.14/2015 was filed by the 1st respondent herein on behalf of his brother also and therefore the maintainability of the Rent Control Petition was not disputed before any of these forums including this court. 3. The 1st respondent landlord was employed abroad till 2012. His case is that when he came back, he had no business or avocation to earn his livelihood and therefore he desired his wife, Raseena to conduct a business in DTP, Photostat and Stationery in the petition schedule shop room. According to him, she is capable of doing business and he is willing to make investment for his family. Since she is his dependent, he, invoking Section 11(3) of the Act, sought eviction of the revision petitioner as well as the 2nd respondent herein alleging bonafide need for occupation of his wife. He also alleged that the revision petitioner during the subsistence of tenancy parted with the tenanted premises and sub let the shop room to the 2nd respondent in this revision for monthly rent and therefore the revision petitioner ceased to depend on the alleged business carried on in the petition scheduled shop room. 4. He also alleged that the revision petitioner during the subsistence of tenancy parted with the tenanted premises and sub let the shop room to the 2nd respondent in this revision for monthly rent and therefore the revision petitioner ceased to depend on the alleged business carried on in the petition scheduled shop room. 4. In fact, the revision petitioner did not set up the ground of sub letting invoking section 11(4) (i) of the Act and she did not pursue the ground of sub letting in any of the forums. Even otherwise also ground of sub letting will not sustain since notice required by statute was not sent before institution of the eviction proceeding. In addition to Section 11(3) of the Act, the 1st respondent set up ground of eviction under Section 11(4)(iii) of the Act also alleging that after commencement of the tenancy, the revision petitioner acquired a shop room bearing Door No.KP.II/489 in Koorachundu Angady close to the petition scheduled shop room and started a financial institution under the name and style 'Muthoot Securities' and has been drawing monthly income of Rs.15,000/-. On the ground that the revision petitioner acquired subsequent possession of a new shop room in the same locality, she was sought to be evicted under Section 11(4)(iii) of the Act also. 5. Both respondents in R.C.P.No.14/2015 contested the case alleging that there was no sub letting and 2nd respondent was only an employee working under the 1st respondent. The alleged subsequent acquisition of new shop Room No. KP.II/489 was denied. The revision petitioner claimed that she occupied the scheduled shop room and depended on the business therein for her livelihood and no vacant room was available in the locality for shifting her business. She went on to say that the 1st respondent in the revision has got in his possession several vacant shop rooms for conducting business and therefore there was no bonafides in his plea for eviction on the ground of alleged need of his wife. It was also contended that Raseena herself has a shop room in her ownership and therefore her purported need has no bonafides. 6. The Rent Control Court refused to order eviction sought under Section 11(4)(iii) of the Act. The order of refusal was not challenged by the landlord in R.C.A.No.249/2016 and that part of the order has become final and conclusive. 6. The Rent Control Court refused to order eviction sought under Section 11(4)(iii) of the Act. The order of refusal was not challenged by the landlord in R.C.A.No.249/2016 and that part of the order has become final and conclusive. Accepting the plea of the landlord under Section 11(3) of the Act, the Rent Control Court ordered eviction and it concurred with the view of the Appellate Authority in R.C.A.No.249/2016. The sole question in this revision that arises for consideration is whether the concurrent finding entered by the courts below on the plea of bonafides set up by the landlord is liable to be interfered with. We heard the learned counsel appearing for the revision petitioner as well as the 1st respondent. The 2nd respondent did not appear and participate in this proceeding. 7. One of the arguments advanced by the learned counsel for the revision petitioner is that both courts below failed to take into consideration the fact that the landlord owned and possessed four shop rooms bearing Nos.KP.II/433, KP.II/434, KP.II/435 and KP.II/436 in the same locality and further failed to substantiate the special reason as required by first proviso to Section 11(3) of the Act. The 1st respondent, landlord does not dispute that he owns these four shop rooms and even otherwise also, the joint ownership of the shop rooms held by himself and brother who is presently abroad is proved by Ext.B2 Information under the IT Act secured by the revision petitioner from Assistant State Public Information Officer, Kooranchundu Grama Panchayat. Under first proviso to Section 11(3) of the Act, the landlord need establish sufficient reason only when he is shown to be in the actual occupation of the building or shop rooms owned by him. 8. PW1, the landlord has a definite case and he has testified it also in his evidence that he is not in occupation of any vacant shop rooms in his ownership as being suited for conducting the proposed business through his wife, dependent. When there is proper explanation in the testimony of PW1 himself, in our opinion with respect to the special reason as warranted by first proviso to Section 11(3) of the Act, landlord's burden stands discharged. The revision petitioner, RW1 was not able to assert in her evidence that any of these four shop rooms is in the actual occupation of the 1st respondent or his wife. The revision petitioner, RW1 was not able to assert in her evidence that any of these four shop rooms is in the actual occupation of the 1st respondent or his wife. We find that these aspects were considered by the courts below in detail in the impugned orders and in our opinion, the concurrent finding entered with respect to the special reason to be substantiated under first proviso to Section 11(3) of the Act does not require any interference. 9. As regards the bonafide need of Raseena also, there is serious contest that her alleged bona fide need is set up as ruse for eviction and in fact, 1st respondent, landlord is not interested in conducting any business in the petition schedule shop room. The evidence on record shows that the landlord was abroad till 2012 and when he came back, he tried to find out some job for eking out his livelihood. His main source of income was rent being collected from a few shop rooms which he had already rented out to some of the tenants. His wife Raseena was interested in conducting DTP, Photostat and Stationery business and she was shown to be skilled and competent also to conduct such business. The tenant has no case that she is conducting any other business or earning livelihood from any other source. Therefore itself non-examination of her is not fatal affecting the case of bonafides pleaded by the landlord. 10. The revision petitioner produced in the trial court Ext.B1 copy of Information obtained from the Secretary, Koorachundu Grama Panchayat showing that Raseena owned in the same locality a shop room No. KP 9/531 which, according to the revision petitioner, would cater to her need and she could conduct therein any business of her choice. But this plea of the revision petitioner was declined by the court below. The explanation of PW1 that shop room is occupied by a tenant on a monthly rent of Rs. 1,000/- was accepted. PW1 explained that the said shop room had been formerly acquired by the father of Raseena and therefore he had the freedom to rent out the shop room and he used to receive a monthly rent of Rs. 1,000/- from the tenant. There is no reason to disbelieve this part of his evidence at all. 1,000/- was accepted. PW1 explained that the said shop room had been formerly acquired by the father of Raseena and therefore he had the freedom to rent out the shop room and he used to receive a monthly rent of Rs. 1,000/- from the tenant. There is no reason to disbelieve this part of his evidence at all. Further, RW1, the revision petitioner was not able to assert that the shop room No. KP 9/531 is in actual occupation of Raseena. In view of the concurrent finding entered by the courts below on this aspect, we do find any reason to interfere with the view taken by the courts below in this respect. 11. On marshalling the entire evidence on record and after hearing both sides as to the bonafide need alleged by the 1st respondent landlord, we are fully satisfied that no illegality, impropriety or irregularity was committed by the Appellate Authority in coming to its conclusion that the need urged by the landlord was proved to be bonafide. Same is our view with respect to the finding of the courts below as regards the first proviso to Section 11(3) of the Act. 12. There is clear finding by the trial court as well as the Appellate Authority that the revision petitioner failed to prove that the business carried on in the petition scheduled shop room provides main source of income for her livelihood. Likewise the revision petitioner failed in proving that no vacant shop rooms were available in the locality for shifting her business. PW2, a local as well as owner of a building consisting of several shop rooms testified that a few vacant shop rooms were available for the revision petitioner for shifting her business. Even apart from the testimony of PW2 also, the courts below held that revision petitioner failed to discharge the burden cast upon her by second proviso to Section 11(3) of the Act. 13. We find from the materials before us that the finding entered by the courts below with respect to second proviso to section 11(3) of the Act is based on evidence and it is consistent with the principles of law. The concurrent finding in this respect does not require any interference at all. Resultantly, the impugned judgment of the Appellate Authority dated 4.1.2018 requires only to be confirmed. The concurrent finding in this respect does not require any interference at all. Resultantly, the impugned judgment of the Appellate Authority dated 4.1.2018 requires only to be confirmed. At the end of the hearing, the learned counsel for the revision petitioner submitted that in the event of revision petition being dismissed, the tenant may be given six months time to vacate the shop room. We do not find any reason to decline the request advanced by the revision petitioner. 14. In the result, confirming the order of eviction, we dismiss this revision petition subject to the following observations of ours: The revision petitioner shall file an affidavit before the Rent Control Court, Perambra, within two weeks from the date of receipt of a certified copy of this order undertaking to vacate the tenanted premises unconditionally on or before 16.9.2019. She shall clear off all arrears of rent if any and continue to pay monthly rent without default till the date of surrender. If any of these conditions is violated, the landlord will be at liberty to initiate execution proceedings before the appropriate forum.