IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 RCRev..No. 8 of 2008() ---------------------- RCA.104/2005 of DISTRICT COURT, ERNAKULAM RCP.169/2004 of III ADDL.MUNSIFF & RENT CONTROL COURT,ERNAKULAM .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ---------------------------------------------------------- K. REMADEVI, AGED 47 YEARS, W/O. P.SURENDRAN, PROPRIETRIX, PREMIER GENERAL SERVICES, DOOR NO.III/321, BISHOPS QUARTERS, NORTH KALAMASSERY. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU RESPONDENT/RESPONDENT/PETITIONER: ----------------------------------- O.L. THARIAN, AGED 54 YEARS, S/O. LATE LONAPPAN, OLAKANGIL HOUSE, BISHOPS QUARTERS, NORTH KALAMASSERY. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 8/01/2008, THE COURT ON 17/1/2008 PASSED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.8 of 2008 ======================== Dated this the 17th day of January, 2008. ORDER Ravindran,J. The tenant in R.C.P. No.169 of 2004 on the file of the IIIrd Additional Munsiff and Rent Control Court, Ernakulam is the petitioner. The respondent is the land lord in the said proceedings. The order passed by the Rent Control Court in R.C.P.No.169 of 2004 and the judgment of the Rent Control Appellate Authority in R.C.A.No.104 of 2005 affirming it are under challenge in this revision petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act"). 2. The respondent/land lord instituted R.C.P.No.169 of 2004 under Section 11(2)(b), Section 11(3) and Section 11(4)(i) of the Act to evict the petitioner/tenant from one of the shop RCR 8/08 -: 2 :- rooms belonging to him. The respondent had let out the petition schedule room, which is the eastern room on the ground floor of a building belonging to him to the petitioner/tenant on a monthly rent of Rs.700/-. According to the land lord, as in February, 2000, arrears of rent to the tune of Rs.37,800/- and interest thereon was due from the tenant. It is the land lord's case that the petitioner/tenant had also sub let the tenanted premises to one Smt.Sheeba contrary to the terms of the agreement. The land lord has further alleged in the petition that he bonafide needs the petition schedule building to enable his daughter Ancy, who suffers from visual impairment to set up a garment manufacturing unit. The land lord has further alleged that in the ground floor of the building of which the petition schedule room forms a part, there are three rooms, the eastern room is let out to the petitioner/tenant, the middle room is occupied by another tenant Najeeb and the western room is lying vacant. According to the land lord, he needs the petition schedule room and the other two rooms on the ground floor to enable his dependent daughter who, as stated above, is visually impaired, to start a garment manufacturing unit. The land lord has also alleged that RCR 8/08 -: 3 :- notwithstanding the receipt of Ext.A1 notice issued by him, the tenant did not discharge the arrears of rent or terminate the sub lease. 3. The petitioner/tenant resisted the application contending that rent is not in arrears and that she has paid the rent till September, 2004. According to the tenant, the rent was in arrears thereafter since the land lord hesitated to receive the rent. The petitioner/tenant also denied and disputed the claim of the landlord that he needs the petition schedule room to enable his daughter to start a garment manufacturing unit. The tenant also denied and disputed the allegation that she has sub let the building to Sheeba, who according to her, was her employee. It is the tenant's case that the respondent/land lord is the Manager of Ruby International Company and his wife, a Senior Officer of Catholic Syrian Bank and that he has no intention to start a garment manufacturing unit for his daughter. The tenant further contended that there are vacant rooms available in the building in which the land lord can start the proposed business, that there are no other suitable buildings available in the locality for the tenant to shift her business and that she is depending for her RCR 8/08 -: 4 :- livelihood solely on the income derived from the business carried on by her in the petition schedule building. 4. In the Rent Control Court, the land lord was examined as PW1 and Exts.A1 to A3 were marked on his side. The respondent was examined as RW1, her husband was examined as RW2 and Exts.B1 to B5 were marked. The Rent Control Court, on an analysis of the evidence, oral and documentary available in the case, repelled the tenant's contention that she had paid the rent upto September, 2004 and held that she is liable to be evicted under Section 11(2)(b) of the Act. The Rent Control Court had in arriving at the said finding noticed that the respondent had not produced cash books for the period from February, 2000 from which the rent is said to be in arrears and that the evidence in the case does not substantiate the tenant's contention that she had paid the rent upto September, 2004. As regards the ground under Section 11(4)(i) of the Act, the Rent Control Court on an analysis of the evidence, came to the conclusion that the petitioner/tenant has sub let the building to Sheeba, who according to the tenant, was only her employee. In arriving at the said finding, the Rent Control Court took note of RCR 8/08 -: 5 :- the admitted presence of Sheeba in the petition schedule building and the active role played by her in the business and the inconsistent testimony tendered by the tenant examined as RW1 and her husband examined as RW2. The Rent Control Court held that the testimony tendered by RW1 would reveal that she was not running the business being carried on in the petition schedule building and that the tenant had no role in the said business. The Rent Control Court also took note of the interpolation in Ext.B5, the cash book said to be maintained by RW1 in the course of her business. Considering the totality of the facts and circumstances of the case, the Rent Control Court came to the conclusion that the tenant has failed to discharge her burden to prove that Sheeba is her employee. Accordingly, the Rent Control Court ordered eviction under Section 11(4)(i) of the Act. 5. As regards the claim for eviction under Section 11(3) of the Act, it was the tenant's case that the land lord can make use of the other vacant rooms in his possession to start the garment manufacturing unit. The Rent Control Court, on an analysis of the pleadings set out by the land lord in the Rent Control Petition and the evidence, oral and documentary in the case, held that RCR 8/08 -: 6 :- the need set out by the land lord is a bonafide one. The contention of the tenant that as the respondent/land lord and his wife are employed, it may not be possible for them to start a business as a family concern was repelled on the ground that in the Rent Control Petition itself, the land lord had pleaded that he and his wife after retirement can support their daughter, who, as stated above, is visually impaired to start a garment manufacturing unit. The claim of the tenant for the protection of the second proviso to Section 11(3) of the Act was repelled by the Rent Control Court on the ground that as she has sub let the shop room to another person and as the business therein is run exclusively by Sheeba, the tenant is not entitled to protection of the first limb of the second Proviso to Section 11(3) of the Act. The Rent Control Court also held that the non-availability of other alternative premises in the locality has also not been proved by the tenant. In that view of the matter, the Rent Control Court held that the tenant is liable to be evicted under Section 11(3) of the Act as well. 6. The petitioner/tenant challenged the order passed by the Rent Control Court in R.C.A.No.104 of 2005 on the file of the RCR 8/08 -: 7 :- Rent Control Appellate Authority, Ernakulam. By judgment delivered on 31.7.2007, the Appellate Authority dismissed the appeal, confirming the order passed by the Rent Control Court. 7. We have heard Sri.Jagan Abraham M.George, the learned counsel appearing for the petitioner. The learned counsel for the petitioner submitted that the findings of the Appellate Authority and the Rent Controller Court are not sustainable in law and that they are liable to be set aside. We are unable to agree with the said submission. 8. The Rent Control Court and the Appellate Authority taking note of the inconsistent testimony tendered by the tenant examined as RW1, her husband examined as RW2 and the admitted fact that no reply was sent to the notice evidenced by Ext.A1, confirmed the finding of the Rent Control Court under Section 11(2)(b) of the Act. The Rent Control Court and the Appellate Authority took note of the significant admission made by the tenant examined as RW1 that she was not paying the rent to the land lord, that it was her husband who was paying the rent and that she could not recollect whether Ext.A1 notice had been brought to her notice. The Rent Control Court and the Appellate RCR 8/08 -: 8 :- Authority also took note of the failure of the respondent to produce the cash books and ledgers for the period after 2000 to prove her contention that she had paid the rent to the land lord upto September, 2004. The finding of the Appellate Authority, confirming the finding of the Rent Control Court as regards the entitlement of the land lord for eviction under Section 11(2)(b) of the Act cannot be said to be perverse or illegal warranting interference under Section 20 of the Act. In our considered opinion, the findings of the Rent Control Court and the Appellate Authority that the rent was in arrears, is based on cogent material and is liable to be affirmed. 9. As regards the claim for eviction under Section 11(4)(i) of the Act, the Rent Control Court and the Appellate Authority elaborately considered the evidence available in the case and taking note of the failure of the tenant to reply Ext.A1 notice and the attendant circumstances held that the tenant has not satisfactorily explained the presence of Sheeba in the tenanted premises and held that the land lord has succeeded in establishing that the tenant has sub let the petition schedule building to Sheeba. In coming to the said conclusion, the Rent RCR 8/08 -: 9 :- Control Court and the Appellate Authority also relied on the inconsistent testimony tendered by the tenant examined as RW1, the discrepancies in Ext.B5 cash book and also the testimony tendered by RW2, who is none other the husband of the tenant. The Rent Control Court and the Appellate Authority have on an analysis of the evidence, oral and documentary, held that Sheeba, the sub lessee, is managing the business in the petition schedule shop room. On an examination of the orders passed by the Rent Control Court as affirmed by the Appellate Authority and after hearing the learned counsel appearing for the petitioner, we are convinced that no grounds have been made out warranting interference with the findings of the Rent Control Court and the Appellate Authority that the tenant has sub let the petition schedule room to Sheeba. Accordingly, we affirm the finding under Section 11(4)(i) of the Act as well. 10. We shall now deal with the claim for eviction under Section 11(3) of the Act. As stated earlier, the land lord seeks to evict the tenant from the petition schedule shop room, so as to enable his daughter Ancy, who is visually impaired to start a garment manufacturing unit. It is not in dispute that the land RCR 8/08 -: 10 :- lord's daughter suffers from visual disability. Ext.A3, the certificate issued from the Medical College Hospital, Kottayam, establishes the said fact and the tenant also does not dispute that the land lord's daughter suffers from visual impairment. The Rent Control Court and the Appellate Authority have taken note of the fact that the daughter, who is visually impaired, is totally dependent on her father and held that the bonafides of the father in setting up a business for his visually impaired daughter cannot be questioned. The contention of the tenant that the land lord is in possession of other rooms wherein the business could be set up was repelled on the ground that the need set out in the petition itself was to utilise all the rooms in the petition schedule building. The Appellate Authority also took note of the fact that RW1 had testified the tenant occupying the middle room in the ground floor, had agreed to vacate the room as and when the garment manufacturing unit is started. 11. On going through the findings of the Rent Control Court and the Appellate Authority, we hold that the Rent Control Court and the Appellate Authority were right in holding that the need put forward by the land lord is bonafide and genuine and does RCR 8/08 -: 11 :- not warrant any interference. As regards the claim of the tenant for the protection of the second Proviso to Section 11(3) of the Act, the Appellate Authority and the Rent Control Court have held that as the tenant had sub let the building to Sheeba, she is not entitled to the protection of the first limb of the second Proviso to Section 11(3) of the Act. As regards the second limb of the second proviso to Section 11(3) of the Act, the Rent Control Court and the Appellate Authority have held that the petitioner/tenant has not adduced any evidence to prove that no other suitable buildings are available in the locality. In our considered opinion, the said findings of the Rent Control Court and the Appellate Authority do not suffer any infirmity or illegality and we affirm the same. 12. In the result, we hold that no grounds have been made out to interfere with the well considered findings of the Rent Control Court and the Appellate Authority. The findings of the Rent Control Court and the Appellate Authority cannot be said to be perverse or illegal warranting interference in the exercise of our jurisdiction under Section 20 of the Act. Therefore, we hold that there is no merit in the above revision petition and that it is RCR 8/08 -: 12 :- liable to be dismissed inlimine. In the result, the revision petition fails and is dismissed inlimine. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 8/1