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2019 DIGILAW 31 (KER)

Ammeer Hamsa v. Ramabhadran

2019-01-11

ANNIE JOHN, K HARILAL

body2019
ORDER : K. HARILAL, J. 1. Since these revisions arise out of one and the same judgment, both revisions are heard together and disposed of accordingly. These revision petitions have been filed, challenging the judgment allowing R.C.A.No.18/2017 in part and dismissing R.C.A.No.29/2017, passed by the Rent Control Appellate Authority, Kollam. (The parties are referred to as in the Rent control petition). The petitioners-landlord filed R.C.P.No.24/2012 before the Principal Rent Control Court, Kollam seeking an order of eviction under Section 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 [for short, the Act]. According to the petitioners, the petition schedule shop room, which was leased out to the respondent, belonged to the first petitioner. Since the first petitioner is working abroad, the second petitioner is in possession and enjoyment of the petition schedule shop room. The rent was in arrear and the petitioners bona fide require the petition schedule building for starting a hotel business for the first petitioner. The first petitioner has been working abroad since the last more than 30 years, and he decided to return from the Gulf country and thereafter conduct a hotel business. So, he wants the petition schedule shop room for starting a hotel business. He has no other building of his own in his possession to start the proposed business; but, several other buildings are available in the locality to shift the business of the respondent-tenant from the tenanted premises. So also the respondent-tenant is not mainly depending on the income derived from the business carried on in the tenanted premises. Therefore, they are entitled to get an order of eviction under Section 11(3) of the Act. Further, the petitioners-landlord contended that the respondent-tenant used the tenanted premises in such a manner so as to reduce its value and utility materially and permanently by making unauthorised constructions and the Municipal authorities initiated proceedings against the petitioners under Section 406(1) and 406 (2) of the Kerala Municipality Act, alleging unauthorised construction in violation of the Kerala Municipality Building Rules. Therefore, they are entitled to get an order of eviction under Section 11(4)(ii) of the Act also. 2. The respondent-tenant resisted the claim for eviction contending that the need projected is not bona fide and it is a pretext for eviction only. Therefore, they are entitled to get an order of eviction under Section 11(4)(ii) of the Act also. 2. The respondent-tenant resisted the claim for eviction contending that the need projected is not bona fide and it is a pretext for eviction only. He is entitled to get protection under the second proviso to Section 11(3) of the Act, as he is mainly depending on the income derived from the business in the tenanted premises and no other vacant buildings are available in the locality to shift his business. The respondent-tenant denied the allegation that he used the building in such a manner so as to reduce the value and utility of the building, materially and permanently. According to him, he has not made any construction in a manner reducing the value and utility of the building. On the other hand, he has made some minor repairs and decoration works, which would add the value and utility of the building. So, he is not liable to be evicted under Section 11(4)(ii) of the Act. As regards the claim for eviction under Section 11(2)(b) of the Act, the respondent-tenant contended that no amount was due from him, as arrears, to the petitioners. 3. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court rejected the claim for eviction under Section 11(4) (ii) and 11(2)(b) and allowed the claim for eviction under Section 11(3) of the Act. 4. Feeling aggrieved, the petitioners filed R.C.A.No.18/2017, challenging the rejection of the claim for eviction under Section 11(4)(ii) and 11(2) (b) of the Act. The respondent filed R.C.A.No.29/2017 challenging the order of eviction passed under Section 11(3) of the Act. 5. After considering both the appeals, the Rent Control Appellate Authority, Kollam dismissed R.C.A.No.29/2017 and allowed R.C.A.No.18/17 in part, by reversing the rejection of the claim for eviction under Section 11(4)(ii) of the Act. Thus, the order of eviction passed concurrently under Section 11(3) of the Act and differently under Section 11(4)(ii) have come up in these revisions. 6. Heard the learned counsel for the petitioners/landlord and the learned counsel for the respondent/tenant. 7. Thus, the order of eviction passed concurrently under Section 11(3) of the Act and differently under Section 11(4)(ii) have come up in these revisions. 6. Heard the learned counsel for the petitioners/landlord and the learned counsel for the respondent/tenant. 7. As regards the order of eviction passed in divergence under Section 11(4)(ii) of the Act, the learned counsel for the respondent-tenant contended that there is no pleadings or evidence to prove that he has used the tenanted premises in such a manner so as to destroy or reduce the value or utility of the building, materially and permanently. According to the learned counsel, the courts below went wrong by relying on the proceedings initiated against the respondent, alleging unauthorised construction under Section 406(1) and 406(2) of the Kerala Municipalities Act alone, to arrive at a finding that the respondent has used the building in a manner so as to reduce the value and utility of the building, materially and permanently. In short, no positive evidence has been adduced in the rent control petition to prove the alleged reduction of the value and utility of the building. 8. Per contra, the learned counsel for the petitioners-landlord advanced argument to justify the findings, whereby the appellate authority reversed the findings of the rent control court and granted an order of eviction under Section 11(4)(ii) of the Act also. According to the learned counsel for the petitioners/landlord, Exts.P4 to P7 and Exts.X1 and X2 would prove the fact that the respondent-tenant had made some additional constructions in a manner, reducing the value and utility of the building, in violation of the Kerala Municipality Building Rules. The aforesaid documentary evidence is supported by the deposition of PW2 also. In short, according to the learned counsel for the petitioners Exts.P4 to P7 and Exts.X1 and X2, coupled with the oral testimony of PW2, are conclusive proof of the facts constituting statutory requirements under Section 11(4)(ii) of the Act. 9. In view of the rival submissions, the question to be considered is, whether the proceedings initiated by the Corporation-Municipality against the tenant, alleging unauthorised construction under Section 406(1) and 406(2) of the Kerala Municipality Act, can be taken as a conclusive proof of the usage of the building in a manner so as to destroy or reduce the value or utility of the tenanted premises, materially and permanently. As rightly pointed out by the learned counsel for the respondent/tenant, we have gone through the pleadings in the rent control petition, in respect of the averments under Section 11(4)(ii) of the Act, and find that the only allegation raised in the rent control petition is that the respondent/tenant has used the building in a manner so as to reduce the value and utility of the building, materially and permanently, by making unauthorised constructions in violation of the Kerala Municipality Building Rules. In other words, no positive averments have been made to disclose the actual facts, which would constitute the ingredients under Section 11(4)(ii) of the Act. According to Section 3 of the Indian Evidence Act, fact means and include: (1) anything, state of things, or relation of things, capable of being perceived by the senses. (2) any mental condition of which any person is conscious. So, what is required to be pleaded in a rent control petition, seeking an order of eviction, is the facts constituting the ingredients of the provision and not the verbatim reproduction of the legal terms in the provision. In the above view, we find that the absence of facts constituting the statutory requirements is fatal to the claim for eviction under Section 11(4)(ii) of the Act. 10. Coming to the evidence, as rightly observed by the rent control court, when the first petitioner/landlord was examined as PW1, in the proof affidavit also, he has not explained the manner in which, the value and utility of the tenanted premises has been reduced, materially and permanently. In cross-examination he admitted that he has not inspected or convinced of the alleged reduction of the value and utility of the building, before filing the rent control petition and the averments in the rent control petition are made on the basis of the proceedings initiated by the Municipality against the respondent/tenant, under Section 406(1) and 406(2) of the Kerala Municipality Building Rules. No other positive evidence has been adduced to prove the act done by the respondent in a manner so as to reduce the value or utility of the building and pleadings and evidence stand based on the action taken by the Municipality against the respondent/tenant, under 406(1) and 406(2) of the Kerala Municipalities Building Rules only. 11. No other positive evidence has been adduced to prove the act done by the respondent in a manner so as to reduce the value or utility of the building and pleadings and evidence stand based on the action taken by the Municipality against the respondent/tenant, under 406(1) and 406(2) of the Kerala Municipalities Building Rules only. 11. According to Section 4 of the Evidence Act, conclusive proof means when one fact is declared by the Evidence Act to be conclusive proof of another, the court shall, on proof of one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. The statutory requirements to be proved under Section 11(4)(ii) of the Act is that the tenant has used the building in such a manner so as to destroy or reduce its value or utility, materially and permanently. Unless the destruction or reduction of the value or utility of the buildings, materially and permanently, are proved, there cannot be any order of eviction as provided under Section 11(4)(ii) of the Act. 12. Going by Section 406(1) and 406(2) of the Kerala Municipality Act, we find that the factual enquiry to be conducted by the Municipality under Section 406(1) and 406(2) of the Kerala Municipality Act is that whether owner/occupant of the building has made any construction in violation of the Building Rules. The usage of the building in a manner so as to destroy or reduce the value or utility of the building is not a fact in issue to be enquired into under Section 406(1) and 406(2) of the Kerala Municipality Act. So, no enquiry need be conducted in the view point of Section 11(4)(ii) of the Act, in a proceedings under Section 406(1) and 406(2) of the Kerala Municipality Act. In the above analysis, we find that the proceedings under Section 406(1) and (2) of the Kerala Municipality Act can never be a conclusive proof of the usage of the building in a manner destroying or reducing the value or utility of the building, materially and permanently, as provided under Section 11(4)(ii) of the Act. In the above analysis, we find that the proceedings under Section 406(1) and (2) of the Kerala Municipality Act can never be a conclusive proof of the usage of the building in a manner destroying or reducing the value or utility of the building, materially and permanently, as provided under Section 11(4)(ii) of the Act. In short, no order of eviction can be passed against a tenant, on the basis of the proceedings initiated by the Corporation/Municipality against him under Section 406(1) and 406(2) of the Kerala Municipality Act only, alleging unauthorised construction or violation of the Kerala Municipality Building Rules. No doubt, it can be used as a corroborative evidence to support other evidence adduced by the landlord. 13. When applying the aforesaid legal proposition to the facts of the instant case, we find that the allegation against the respondent alleging the grounds under Section 11(4)(ii) of the Act rests on the proceedings under Section 406(1) and 406(2) of the said Act only. But , the court below went wrong by granting an order of eviction under Section 11(4)(ii) of the Act, relying on Exts. P4 to P7 and X1 and X2 only. Consequently, we set aside the order of eviction passed under Section 11(4)(ii) of the Act by the appellate authority and the findings, whereby the rent control court rejected the claim for eviction under Section 11(4) (ii) of the Act, would stand re-stored. 14. Coming to the order of eviction under Section 11(3) of the Act, the learned counsel for the respondent-tenant contended that the courts below have failed to appreciate the evidence on record available under the second proviso to Section 11(3) of the Act in its correct perspective. According to the learned counsel for the revision petitioner/respondent, though the petitioners-landlord have specifically pleaded that the revision petitioner/respondent, has several other business and he has entrusted the business in the tenanted premises to some other persons, no evidence has been adduced to substantiate the said contention. Thus, the petitioners/landlord themselves have failed to prove that the respondent-tenant, has other sources of income and he is not mainly depending upon the income from the tenanted premises. So, in the absence of any positive evidence to that effect from the part of the petitioners-landlord, the burden of proof under the first limb of the second proviso will not be shifted to the revision petitioner/respondent. So, in the absence of any positive evidence to that effect from the part of the petitioners-landlord, the burden of proof under the first limb of the second proviso will not be shifted to the revision petitioner/respondent. Therefore, it can be said that the petitioners-landlord have failed to discharge the burden of proof under the first limb of the second proviso to Section 11(3) of the Act. 15. Going by the evidence on record, it could be seen that no positive evidence has been adduced by the revision petitioner/respondent to prove that he is mainly depending upon the income from the business in the tenanted premises. It is trite law that both limbs under the 2 nd proviso to Section 11(3) of the Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Narayanan Nair v. Pachumma 1980 KLT 430 , Prasannan v. Haris, ILR 2005(2) Ker. 373 : 2005 (2) KLJ 168 , Vineethan v. Fathima and others 2016 (1) KHC 631 : 2016 (1) KLJ 733 . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the 1st limb of the 2nd proviso to section 11(3) of the Act. 16. Learned counsel further contends that the burden of proof under the 2nd proviso is on the petitioners in view of the averments in the rent control petition. We are unable to accept the said contention and we are of the opinion that where statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. We are unable to accept the said contention and we are of the opinion that where statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. It is to be borne in mind that 2nd proviso is an exception to the principal provision, granting protection to the tenant. When the 2nd proviso to section 11(3) of the Act itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the 2nd proviso, is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the 2nd proviso to Section 11(3) of the Act is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the 2nd proviso is always on the tenant and unless the burden of proof under the 2nd proviso is discharged satisfactorily, the tenant is not entitled to get protection under the 2nd proviso to section 11(3) of the Act. 17. In the instant case, no evidence has been adduced to prove the income, which is being derived from the business carried on in the tenanted premises. In Shahul Hameed A. v. P.E.Abdu Razak [ 2016 (5) KHC 820 ] this court held that the tenant who is hiding his income from the court is not entitled to get protection under the 2nd proviso to section 11(3) of the Act. No evidence has been adduced to prove the availability of other vacant buildings in the same locality. 18. In the above analysis, we find that there is no illegality or impropriety in any of the findings, whereby the courts below have concurrently granted an order of eviction, under section 11(3) of the Act. Hence, these revision petitions are dismissed. No evidence has been adduced to prove the availability of other vacant buildings in the same locality. 18. In the above analysis, we find that there is no illegality or impropriety in any of the findings, whereby the courts below have concurrently granted an order of eviction, under section 11(3) of the Act. Hence, these revision petitions are dismissed. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given six months' time to vacate the petition schedule building, on the following conditions: (1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that they will vacate the petition schedule shop room within six months from today. (2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. All pending Interlocutory Applications will stand closed.