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2023 DIGILAW 175 (KER)

Rosily v. Sakker Hussain

2023-02-15

P.B.SURESH KUMAR, SOPHY THOMAS

body2023
ORDER : Sophy Thomas, J. The revision petitioner, who is the tenant in RCP No.20 of 2013 on the file of Rent Control Court, Irinjalakuda, is before us, invoking the revisional jurisdiction of this Court, under Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). 2. The brief facts necessary for the revision could be stated as follows, referring the parties according to their status in the Rent Control Petition. 3. The petitioners/landlords filed RCP No.20 of 2013, for evicting the respondent/tenant under Section 11(2)(b) and 11(3) of the Act. According to the petitioners, the respondent defaulted rent from 04.02.2013 onwards, and moreover, they were in need of the petition schedule room along with adjacent rooms which were also leased out by them, for starting a supermarket cum godown. 4. The respondent/tenant opposed that petition contending that, the rent was never in arrears, and the need projected by them that they wanted to start a supermarket in the rooms including the petition schedule room, was not bonafide. The 1st petitioner is working in a company and petitioners 2 and 3 are doing some business. So, they may not be able to run a supermarket, and moreover, they are financially well off, and so they need not start a new business to make money. The petitioners recently got two rooms, back from the tenants, and if they wanted to start a supermarket, they could very well use those rooms. The respondent/tenant is solely depending on the income derived from the business in the petition schedule room and no suitable rooms are available in that locality to shift her business. So, she prayed for dismissal of the Rent Control Petition. 5. RCP No.20 of 2013 was tried along with connected RCPs filed by the very same landlords, for getting vacant possession of the adjoining tenements, for starting a supermarket. 6. PWs 1 to 3 were examined and Exts.A1 to A32 were marked from the side of the petitioners/landlords and RWs 1 to 5 were examined and Exts.B1 to B6 were marked from the side of the respondent/tenant. Ext.C1 was marked as court exhibit. 7. 6. PWs 1 to 3 were examined and Exts.A1 to A32 were marked from the side of the petitioners/landlords and RWs 1 to 5 were examined and Exts.B1 to B6 were marked from the side of the respondent/tenant. Ext.C1 was marked as court exhibit. 7. After evaluating the facts and evidence, the Rent Control Court found that there was no rent arrears but the bonafide need projected by the petitioners is genuine and so eviction was ordered under Section 11(3) of the Act, and the respondent was directed to surrender vacant possession of the schedule room within three months from the date of order. 8. Aggrieved by the order of eviction under Section 11(3) of the Act, the tenant approached the Rent Control Appellate Authority by filing RCA No.97 of 2015, under Section 18 of the Act. The Rent Control Appellate Authority found that, the need of the petitioners to start a supermarket in the rooms including the petition schedule room was bonafide, and hence the appeal was dismissed confirming the order of the Rent Controller, Irinjalakuda, and the respondent/tenant was granted six months time to vacate the premises, subject to filing of an affidavit undertaking to vacate the premises, within the said period. Now the tenant is impugning the judgment of the Rent Control Appellate Authority, in this revision. 9. Heard learned counsel Sri.B.S Swathikumar, appearing for the revision petitioner/tenant and learned counsel Sri.P.Ramakrishnan, appearing for the respondents/landlords. 10. Let us reanalyse the facts and evidence, to find out whether there is any illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court. 11. The ground for eviction under Section 11(2)(b) of the Act, projected by the petitioners/landlords, was found against by the Rent Control Court and that was not challenged by the landlords. The concurrent finding of the Rent Control Court as well as the Rent Control Appellate Authority under Section 11(3) of the Act, is the subject matter of challenge in this revision. 12. According to the petitioners/landlords, they owned a four storied shopping complex at the heart of Irinjalakuda town and as they wanted to start a supermarket cum godown in the ground floor of that shopping complex, they wanted to evict six tenants, who were occupying seven rooms in the ground floor. 12. According to the petitioners/landlords, they owned a four storied shopping complex at the heart of Irinjalakuda town and as they wanted to start a supermarket cum godown in the ground floor of that shopping complex, they wanted to evict six tenants, who were occupying seven rooms in the ground floor. The petition schedule room leased out to the respondent/tenant is one of the rooms which they need for starting the supermarket. PW1 admitted that, earlier he was working in Gulf and he is doing real estate business also. But, now he wants to start a supermarket along with his brother. The respondent has no case that, the petitioners are not financially sound to start the supermarket. It has come out in evidence that, except the tenant in RCP Nos.21 of 2013, 22 of 2013 and the respondent, all other tenants vacated their premises, for enabling the landlords to start the supermarket. The respondent contended that, the rooms which were given vacant possession to the landlords by other tenants, were subsequently leased out by them and that will negate their case of bonafide need for starting a supermarket. But, there was no evidence to show that the tenanted premises, which the landlords got vacant possession from other tenants, were subsequently leased out, and so, that contention of the respondent is liable to be turned down. 13. The respondent/tenant put forward another contention that, the seven rooms in which the landlords proposed to start a supermarket, are separate rooms and in order to start a supermarket, the separation walls are to be removed for converting it as a hall, for which modification works are to be carried out in that building. The landlords have no case that, they wanted to modify the building by removing the partition walls, and there is nothing to show that they obtained valid permit for carrying out such works. According to the tenant, that also will speak out lack of bonafides from the part of the petitioners. The ground on which the landlords are claiming vacant possession of the petition schedule room, is 'bona fide need'. Once they get vacant possession of all the rooms including the petition schedule room in which they propose to start a supermarket, then they can very well approach the authorities concerned for getting permit, plan etc., for modifying the rooms according to their need. Once they get vacant possession of all the rooms including the petition schedule room in which they propose to start a supermarket, then they can very well approach the authorities concerned for getting permit, plan etc., for modifying the rooms according to their need. She has got another contention that, there will not be enough parking space for the supermarket. But, there is admission from the part of the respondent herself that, at least ten cars can be parked there at a time. All these apprehensions are none of the concerns of the tenant. So, that contention also will not stand in the eye of law. 14. The respondent/tenant would say that, the landlords are in possession of other rooms. Further she is mainly depending on the income derived from the business in the schedule room for her livelihood, and no other suitable rooms are available in that locality, to shift her business. So, she is eligible to get the benefit of first and second provisos to Section 11(3) of the Act. PW2-the Commissioner reported that, many other rooms are available in that locality. The respondent also admitted availability of other rooms in that locality. So, the second limb of the second proviso to Section 11(3) is given a go bye, with the admission of the respondent. 15. Regarding the dependency of the tenant mainly on the income derived from the business in the schedule room, the respondent/tenant admitted before the Rent Control Court when examined as RW5 that, she is in possession of a 50 square feet building on the northern side of the petition schedule building complex, where she is doing phone repairing business. She is doing business of tools in another room taken on lease. There is further admission from RW5 that, she is in possession of two other rooms in the municipal building complex. Thus there is clear evidence to show that, the respondent is doing various other businesses in various rooms taken on lease by her and so, she may not be depending for her livelihood mainly on the income derived from the business in the petition schedule room. So, she is not eligible to get the benefit of second proviso to Section 11(3). 16. So, she is not eligible to get the benefit of second proviso to Section 11(3). 16. Regarding the first proviso to Section 11(3), the tenant failed to prove that, the landlords are in possession of other suitable rooms in the very same shopping complex or in that locality, to start a supermarket and godown. The landlords clearly stated that, they wanted to start a supermarket in the ground floor of the shopping complex in seven rooms, which were leased out to various tenants, and they initiated rent control proceedings to vacate them, and except three, they got vacant possession of all the remaining rooms. The petition schedule room is one among the three, to be vacated. 17. The onus of proof that the tenant is entitled to get the benefit of the proviso to Section 11(3), is on the tenant herself and she failed to discharge that burden and there is nothing to show that, the landlords are possessing suitable rooms in that locality to start their business of supermarket. It has come out in evidence that, the intention of the landlords to start a supermarket is not a mere desire and there is concurrent findings of the trial court as well as the appellate court that the need of the landlords was bona fide, and we find no reason to disturb that finding. 18. When the above revision came up for admission on 16.01.2019, this Court was not persuaded to admit the revision and then learned counsel appearing for the revision petitioner/tenant sought indulgence of this Court to grant one year time to vacate the premises. Four years have elapsed since then, and still the room is not vacated by the tenant. So, we are not inclined to grant any more time for the tenant to surrender vacant possession of the schedule room to the landlords. In the result, the Rent Control Revision is dismissed, directing the revision petitioner/tenant to vacate the tenanted premises forthwith. The pending interlocutory applications, if any, shall stand closed.