IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 RCRev..No. 17 of 2008 RCP.NO.87/2004 OF RENT CONTROL COURT, ERNAKULAM RCA.NO.92/2005 DISTRICT COURT, ERNAKULAM REV.PETITIONERS/APPELLANTS IN RCA/RESPONDENTS 1. E.V.JOHN, RESIDING AT EDACHERIL HOUSE, C/O.E.V.RADIO ELECTRICALS 40/4977, BANERJI ROAD, ERNAKULAM (DIED) 2. M/S.E.V.RADIO ELECTRICALS, REPRESENTED BY PARTNER E.JOHN THOMAS 40/4977, BANERJI ROAD, ERNAKULAM. 3. E.JOHN THOMAS, S/O.E.V.JOHN, PARTNER M/S.E.V.RADIO ELECTRICALS, 40/4977, BANERJI ROAD, ERNAKULAM. 4. MRS.ANNIE THOMAS, W/O.JOHN THOMAS, EDACHERIL HOUSE, C/O.E.V.RADIO ELECTRICALS BANERJI ROAD, ERNAKULAM. BY ADV. SRI.K.R.VINOD RESPONDENTS: RESPONDENTS: PETITIONERS: 1. K.A.MARIYAMMA, AGED 67 YEARS, D/O.LATE ABDUL RAHIMANKUTTY, AND W/O.LATE P.M.ABDUL RAZACK, POOVATH HOUSE, KUNNUMPURAM, KOCHI. 2. K.A.JAMEELA, AGED 58 YEARS, D/O.LATE ABUL RAHIMANKUTTY, AND W/O.ABDUL MAJEED, 42/1113, MARKET ROAD, ERNAKULAM. 3. K.A.SAIBUNNISA, AGED 49 YEARS, D/O.LATE ABDUL RAHIMANKUTTY AND W/O.K.M.ABOOBACKER, 36/651 - C CHAMMINIBUILDING, PROVIDENT FUND ROAD, KALOOR, KOCHI-17. 4. ELSIE RAJAN, C/O.RAJAN THOMAS, OMIER TRAVEL AGENCY, P.O.BOX NO.267, ABHUDABHI, UAE. 5. REEBA PHILIP, D/O.PHILIP VARGHESE, JN 2, 11-A18, SECTOR 10, VASHI-NAVA MUMBAI-400703. 6. GRACERILLA, W/O.ABRAHAM, D- 53, SHYLENDRA NAGAR, RAIPUR - 492001. 7. ANNIE RAY MATHEW, C/O.MATHEW SIMON, FLAT NO.6, MINAL COMPLEX-322, GROUND GARDEN, BHOPAL-462023. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON 23/01/2008 PASSED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.T.SANKARAN, JJ. ---------------------------------------------------- R.C.R. NO. 17 OF 2008 ---------------------------------------------------- Dated this the 23rd January, 2008 O R D E R K.T.SANKARAN, J. The tenants are the revision petitioners. They challenge the concurrent findings of the courts below under Section 11(3) of the Kerala Buildings (Lease and Rent control) Act, 1965 (hereinafter referred to as `the Act'). The respondents filed R.C.P.No.87 of 2004, on the file of the Rent Control Court, Ernakulam under Sections 11(3), 11(4)(ii) and 11(4)(iii) of the Act. The Rent Control Court allowed the application under Section 11 (3) of the Act and dismissed the application in so far as it relates to the grounds under Sections 11(4)(ii) and 11(4)(iii) of the Act. The tenants filed R.C.A.No.92 of 2005, on the file of the Court of the District Judge, Ernakulam (Appellate Authority), challenging the order under Section 11(3) of the Act. The landlord filed Memorandum of Cross Objection challenging that part of the order by which the prayer for eviction under Sections 11(4) (ii) and 11(4)(iii) was rejected. The Appellate Authority dismissed the appeal and the Memorandum of Cross Objection. The tenants have come up in Revision challenging the judgment of the Appellate Authority, in so far as it relates to the ground under Section 11(3) of the Act. 2. The parties are referred to as per their rank in the Rent Control Petition. R.C.R. NO. 17 OF 2008 :: 2 :: 3. The petition schedule building belonged to late Abdulrahimankutty, father of the petitioners. The first respondent had taken the building on rent and started business in electrical items. The lease was on 13.1.1958. It would appear that later a partnership was formed by the tenant. The second respondent is the partnership firm. Respondents 3 and 4 are the partners of the firm. After the death of Abdulrahimankutty, the petition schedule building came to vest in the petitioners. The rate of rent at the time of filing of the Rent Control Petition was Rs.5,000/- per month. 4. The bona fide need alleged by the petitioners is for the occupation of the building by Shahid Ameen, son of the second petitioner. According to the petitioners, Shahid Ameen, is unemployed and that he intents to start a business in computer software and allied items in the petition schedule building. It was contended by the petitioners that Shahid Ameen is dependent on the petitioners. The petitioners also contended that the respondents have other source of income, income from business and from their properties, and that they are not depending mainly on the income derived from the business conducted in the petition schedule building. R.C.R. NO. 17 OF 2008 :: 3 :: 5. The respondents contended that the second respondent firm is the tenant and that respondents 1, 3 and 4 are unnecessary parties. The rent was being periodically enhanced by the first petitioner and the last enhancement was to the tune of Rs.5,000/- per month. There were litigations between the parties before the Munsiff's Court, Ernakulam, in respect of the building. On 14.1.2004, the notice of eviction was issued by the petitioners to the respondents. Thereafter, a conciliation took place and the respondents agreed to enhance the rent to Rs.5,000/-. A draft lease agreement was also prepared. However, the draft agreement was returned to the second respondent after making some corrections by the counsel for the petitioners. Later, the petitioners demanded a sum of Rs.2 lakhs as “pakidi”. The respondents were not willing to pay this amount. The Rent Control Petition was filed in that background. The respondents also contended that the petition schedule building, which is situated in the ground floor, is now in a dilapidated condition due to lack of maintenance and repairs. In spite of a petition having been filed before the Accommodation Controller, the petitioners have not cared to repair the building. The respondents also contended that Shahid Ameen is not a dependent on the other petitioners and he does not want the building for any purpose. Shahid Ameen has secured a job in a multi national company abroad and he would be leaving India shortly. The respondents also contended that the partners of the second respondent have no other R.C.R. NO. 17 OF 2008 :: 4 :: source of income for their livelihood other than the income derived from the business conducted in the petition schedule building. They also contended that there is no other suitable building available in the locality to accommodate the business run by the second respondent partnership firm. 6. On the side of the petitioners, PWs.1 to 4 were examined and Exts.A1 to A11 were marked. On the side of the respondents, RWs.1 and 2 were examined and Exts.B1 to B7 and Ext.X1 were marked. 7. As stated earlier, both the courts below found on facts that the bona fide need put forward by the petitioners is genuine. The first petitioner was examined as PW1. Shahid Ameen, son of the second petitioner, was examined as PW3. He stated that he is a BBA Graduate and is unemployed. He has also secured certificate in computer course. He expressed his intention to start business in computer software and allied items in the petition schedule building. It is stated by PW3 that he requires the petition schedule building for the purpose of commencing business. PW2, son of the first petitioner manages the property on behalf of the first petitioner. PW2 also stated that Shahid Ameen requires the petition schedule building for his bona fide occupation. The evidence of PW3 would indicate that though he went abroad, he could not secure a R.C.R. NO. 17 OF 2008 :: 5 :: job and he returned to India after two months. The courts below relied on the evidence of PWs.1 to 3 and found that their evidence is worthy of acceptance and that the bona fide need is established. 8. The main argument advanced by the respondents before the court below was that after issuing the notice, Ext.B3 draft document was prepared, which is alleged to be a lease deed, fixing a monthly rent of Rs.5,000/- for the petition schedule building. PW1, the first petitioner, when confronted with this document, pleaded ignorance. Ext.B3 is not the original document, but only a photocopy. Ext.B3 is not signed by any of the parties. PW2 also stated that he is not aware of the contents of Ext.B3. The courts below held that any negotiation between the parties and an attempt to settle the dispute would not affect the bona fide need put forward by the petitioners. We are in agreement with the view taken by the courts below. Learned counsel for the revision petitioners submitted that the fact that rent was enhanced to Rs.5,000/- per month would indicate that the bona fide need put forward by the petitioners/landlords has lost its credence. It is contended that, had the bona fide need been genuine, the petitioners would not have thought it fit to enhance the rent. Enhancement of rent by itself would indicate that the petitioners/landlords agreed for the continuance of the tenants in the petition schedule building. In the facts and circumstances of the case, we R.C.R. NO. 17 OF 2008 :: 6 :: are not inclined to accept the contention put forward by the respondents/tenants. The lease was in the year 1958. The building is in an important locality. The fact that rent was enhanced to Rs.5,000/- per month does not indicate that the landlords agreed for the continuance of the tenants indefinitely or that the landlords abandoned their idea to occupy the building after getting eviction. The courts below, in our view, were justified in rejecting this contention put forward by the respondents (revision petitioners). 9. As regards availability of protection of the second proviso to Section 11(3) of the Act, the courts below held that no evidence was adduced by the first respondent to show that he is mainly depending on the income derived from the business conducted in the petition schedule building. The courts below held that the tenant is the first respondent and not the partnership, in the absence of any proof to show that the tenancy right vested in the partnership. The courts below also noticed that the first respondent was not examined in the case. It was held that the respondents failed to prove the second limb of the second proviso to Section 11(3) of the Act as they failed to prove that no suitable buildings are available in the locality to carry on the business conducted by them in the petition schedule building. The Appellate Authority noticed the contention raised by the petitioners that the respondents/tenants have R.C.R. NO. 17 OF 2008 :: 7 :: taken on rent another building situated on the opposite side of the petition schedule building. On analysing the facts and evidence in the case, it was held by the courts below that vacant rooms are available in the locality suitable for the occupation of the respondents. It was held that no evidence was adduced by the respondents to prove that no suitable buildings are available in the locality. The Accommodation Controller was also not examined to show that no vacant buildings are available in the locality. It is well settled that both the limbs of the second proviso to Section 11(3) sould be established and that the burden of proof is on the tenant to establish the same. 10. We are of the view that the courts below have considered the questions involved in the case on the basis of the evidence on record. On facts, it was held by the courts below that the bona fide need is established. It was also held by the courts below that the tenants are not entitled to the protection of the second proviso to Section 11(3) of the Act. These findings of facts are based on oral and documentary evidence in the case. The revisional court would not be justified in re-appreciating the oral evidence in the case. Interference under Section 20 of the Act is called for only if the judgment of the Appellate Authority is illegal, irregular or improper. R.C.R. NO. 17 OF 2008 :: 8 :: 11. The Rent Control Revision lacks merits and it is accordingly dismissed. However, taking into account the facts and circumstances of the case and also the fact that the tenant is doing business in the premises from 1958 onwards, we are of the view that six months' time can be granted to the tenants to vacate the building, on condition that they shall file an unconditional undertaking before the Rent Control Court within a period of one month from today, undertaking to vacate the building on or before the expiry of six months from today and also on condition that they shall pay the arrears of rent, if any, within one month from today and shall continue to pay the rent till they vacate the premises. (K.BALAKRISHNAN NAIR) Judge (K.T.SANKARAN) Judge ahz/