Research › Search › Judgment

Kerala High Court · body

2020 DIGILAW 137 (KER)

Shah Tex Corporation v. Kannokkarathi Sajitha

2020-02-04

C.S.DIAS, K.HARILAL

body2020
ORDER : C.S. Dias, J. 1. The revision petitioner was the appellant in RCA No. 179/2011 on the file of the Rent Control Appellate Authority (in short 'Appellate Authority'), Thalassery. The respondent in this revision petition was the respondent in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Kannur, in RCP No. 190/2010. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition (RCP) as 'petitioner' and 'respondent'. 3. The petitioner had filed the RCP against the respondent, inter alia, pleading as follows: The petition schedule building (for brevity, hereinafter referred to as 'building') is owned by the petitioner. She had leased out the building to the respondent on 28.2.1994 on a monthly rent of Rs. 400/-. It was after the building was leased out to the respondent that she purchased the absolute right over the building. The respondent attorned to the ownership. However, since August, 2009, the respondent has kept the rent in arrears, without any reason. The respondent has also ceased to occupy the building for more than a year. The respondent is not opening the building even for cleaning. The long and continuous closure of the building has caused damage to the building and has diminished its value and utility. Though the petitioner had earlier filed RCP 136/2001, the same was dismissed, which order was confirmed in RCA 61/2003. Now the petitioner's son has completed his studies, and he bona fide requires the building to conduct a business in photo framing and glass painting. The building is suitable for his business. The petitioner's son is dependent on her. The respondent is not interested in doing any business in the building. There are other vacant buildings in the locality suitable for the respondent to carry on his business. Hence, the petitioner prayed for an order of eviction under Secs. 11(2)(a)(b), 11(3), 11(4)(ii) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act). 4. The RCP was resisted by the respondent, who filed a counter statement, inter alia, pleading as follows: The landlord and tenant relationship is admitted. The respondent has paid an amount of Rs. 3,00,000/- as security. The landlord who had assured to return the amount, has till date not returned the amount. 4. The RCP was resisted by the respondent, who filed a counter statement, inter alia, pleading as follows: The landlord and tenant relationship is admitted. The respondent has paid an amount of Rs. 3,00,000/- as security. The landlord who had assured to return the amount, has till date not returned the amount. The respondent has paid rent up to September 2009 through Court. Thereafter, even though he tendered the rent, the petitioner has willfully refused to accept the same. The respondent has not ceased to occupy the building as alleged in the RCP. The building is being used by the respondent for the purpose of godown of his textile items. The respondent is purchasing second quality textile goods from manufacturers and agents from different parts of the Country. These goods are stored in the building. The building is situated in a locality which is known for textile business. The respondent has not damaged the building or diminished its value as alleged in the RCP. The bona fide need raised by the petitioner is only a ruse to evict the respondent from the building. The petitioner's son is still studying in Bangalore. He has no intention to start such a petty business. The petitioner and her husband are well known builders in Kannur, and that they have several other buildings in their possession. As the building is being used as a godown, the respondent does not normally open the building from dawn to desk. The petitioner is not doing periodical maintenance for the building, which is the sole reason that the building is not in a good condition. The respondent had issued a lawyer notice to the petitioner to restore the amenities. Subsequently, he also filed an application before the Accommodation Controller. Hence, the RCP may be dismissed. 5. The husband and son of the petitioner were examined as PWs 1 and 2. The Advocate Commissioner who prepared Ext C1 report was examined as PW3. Exts. A1 to A4 were marked through PW1. The respondent and one witness were examined as RWs 1 and 2, and Exts. B1 to B6 were marked through them. 6. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the building under Secs. 11(3) and 11(4)(v) of the Act. The petitioner's prayer for eviction under Secs. 11(2)(a)(b) and 11(4)(ii) was rejected. 7. B1 to B6 were marked through them. 6. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the building under Secs. 11(3) and 11(4)(v) of the Act. The petitioner's prayer for eviction under Secs. 11(2)(a)(b) and 11(4)(ii) was rejected. 7. Aggrieved by the impugned order passed by the Rent Control Court, the respondent preferred RCA No. 179/2011 before the Appellate Authority. The Appellate Authority by the impugned judgment dated 9.4.2019 dismissed the appeal by confirming the order of eviction passed by the Rent Control Court. 8. It is challenging the judgment passed by the Appellate Authority in RCA No. 179/2011 and the order passed by the Rent Control Court in RCP No. 190/2010, that this Rent Control Revision is filed. 9. Heard Sri Abdul Raoof P., the learned counsel for the revision petitioner. 10. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the building under Secs. 11(3) and 11(4)(v) of the Act. According to him, the petitioner has not proved her bona fide need. It was impossible for the courts below to arrive at the impugned findings, as the need projected by the petitioner was not proved to be bona fide. The courts below have also erroneously come to the conclusion that the respondent has ceased to occupy the building. The courts below have not given protection of the first and second proviso to Sec. 11 (3) of the Act to the revision petitioner. He prayed that the revision petition be allowed and the concurrent findings of the courts below be set aside. 11. The question that arises for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below, ordering eviction of the respondent under Secs. 11(3), 11(4)(v) of the Act. 12. It is trite law that, this Court while exercising its revisional jurisdiction under Sec. 20 of the Act is not bound to re-appreciate the entire pleadings and evidence on record. This Court is only permitted to examine the legality and correctness of the impugned judgment/order. 11(3), 11(4)(v) of the Act. 12. It is trite law that, this Court while exercising its revisional jurisdiction under Sec. 20 of the Act is not bound to re-appreciate the entire pleadings and evidence on record. This Court is only permitted to examine the legality and correctness of the impugned judgment/order. Keeping in mind the above legal parameters, we have gone through the pleadings as well as the oral testimonies of PWs 1 to 3, RWs 1 and 2 and the Exhibits that are on record. 13. It is undisputed that the revision petitioner/respondent is the tenant of the petitioner/landlord. The respondent has also admitted that the petitioner's son (PW2) is dependent on her. His defence was that there is no need for the petitioner's son to start a business because the petitioner and her husband are the well known builders in Kannur, and that there is no necessity for the petitioner's son to start a photo framing and glass painting business. It is also his case that the petitioner's son is studying in Bangalore and the need projected by the petitioner is only a ruse for evicting the respondent from the building. 14. The petitioner's husband was examined as PW1 and her son was examined as PW2. Both the witnesses have adduced evidence in tune with the pleadings in the RCP. Even though they were cross-examined, nothing was brought out to discredit their oral testimonies. It is also on record that PW2 has completed his graduation. PW2 has also given evidence to the effect that he has no intention to do business along with his parents. Hence, the bona fide need projected by the petitioner, that her son requires the building for doing his own business cannot be disbelieved. 15. It is settled law in Deep Chandra Juneja vs. Lajwanti Kathuria [ AIR 2008 SC 3095 ] that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the need put forward by the landlord is genuine or not, and is not a ruse for eviction. 16. The Supreme Court in Sarla Ahuja vs. United India Insurance Company Ltd. [ (1998) 8 SCC 119 ], held that when a landlord asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. 16. The Supreme Court in Sarla Ahuja vs. United India Insurance Company Ltd. [ (1998) 8 SCC 119 ], held that when a landlord asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide. 17. In the case on hand, the evidence of PWs 1 and 2 read with the pleadings and documents on record clearly prove that the need projected by the petitioner is to be accepted on its face value. There is nothing that the respondent has not brought out in evidence to discredit the oral testimonies of PWs 1 and 2, and also the pleadings in the RCP. In the aforesaid circumstances, we are convinced that the courts below have rightly come to the conclusion that the need projected by the petitioner is bona fide, and it is for PW2 to start a business of his own in photo framing and glass painting. 18. Coming to whether the respondent is entitled to the protection under the first proviso to Sec. 11 (3) of the Act, we find that the petitioner has clearly pleaded in the RCP that even though they have buildings in their possession, the same have been leased out. The respondent produced Exts. B3 series to B6 series to establish that the petitioner and her husband are in possession of other buildings of their own in different parts of Kannur and Chirakkal Grama Panchayats. In the cross-examination of PW1, he deposed that the rooms covered by Exts. B3 to B6, namely, room Nos. TV.33/49 A, B and C are owned by him and his wife and the same have been leased out to different tenants. Similarly, he deposed that room Nos. TV.33/67C to H in the name of the petitioner have also been leased out. In view of the special reason that has been stated by the petitioner and PW1, the onus of proof to prove that the rooms are vacant shifted to the respondent to substantiate the aspect. Other than for producing Exts. Similarly, he deposed that room Nos. TV.33/67C to H in the name of the petitioner have also been leased out. In view of the special reason that has been stated by the petitioner and PW1, the onus of proof to prove that the rooms are vacant shifted to the respondent to substantiate the aspect. Other than for producing Exts. B3 to B5 series, to prove the ownership of the petitioner and PW1 over the rooms, which is an admitted fact, the respondent has not produced any cogent material to substantiate the said rooms are lying vacant. In the aforesaid circumstances, we are of the view that the respondent has not proved that he is entitled to the protection under the first proviso to Sec. 11 (3) of the Act. 19. Coming to the second proviso of Sec. 11 (3) of the Act, it is on record that the respondent is using the building only as a godown. The Advocate Commissioner (PW3) in her oral testimony as well as as per Ext C1 report has categorically found that the building is lying vacant. There is no electricity connection to the building for the last ten years. There are spider webs found all over the building and verandah. The doors of the building are locked and latches and locks are totally rusted. Chairs, broomstick, tables, iron racks etc., are lying scattered in the room. All these circumstances made the courts below to come to the conclusion that the respondent has ceased to occupy the building for the last more than one year. In the said circumstances, the courts below ordered eviction of the respondent also on the ground under Sec. 11(4)(v) of the Act. 20. This Court in Paul vs. Lalu Paulson [ 2014 (1) KLT 916 ] has held that a tenant who has ceased to occupy the building cannot claim protection under the second proviso to Sec. 11 (3) of the Act. 21. In addition to the above declaration of law, it is on record that the respondent is using the building only for the purpose of a godown and that he is running his business in a different premises. It is also proved that there are other buildings in the locality which are sufficient for the respondent to shift his business. 21. In addition to the above declaration of law, it is on record that the respondent is using the building only for the purpose of a godown and that he is running his business in a different premises. It is also proved that there are other buildings in the locality which are sufficient for the respondent to shift his business. The respondent has also not produced any material to substantiate that he is eking out his livelihood from the income that is generated from the business. The respondent has not shifted the burden of proof from his shoulders to prove that he is entitled to the protection under the second proviso to Sec. 11 (3) of the Act. 22. In the totality of the facts and circumstances of the case, pleadings and evidence on record, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered eviction of the respondent under Secs. 11(3) and 11(4)(v) of the Act. We confirm the concurrent findings of the Rent Control Court in RCP 190/2010 and the Appellate Authority in RCA No. 179/2011. 23. At that point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the building. Taking into consideration the fact that the RCP was filed in the year 2010, and that the impugned order was passed by the Rent Control Court as early as on 29.7.2011, and subsequently, the Rent Control Appeal was filed in the year 2011, we feel that the revision petitioner has got more than sufficient time to vacate the building. 24. Having regard to the facts and circumstances of the case, we deem it appropriate to grant the revision petitioner six months' time to vacate the 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 he 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. In the result, this revision petition is accordingly dismissed.