IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 RCRev..No. 157 of 2008() ------------------------ RCA.186/2006 of ADDL.DISTRICT COURT, KOZHIKODE RCP.2/2006 of MUNSIFF COURT, QUILANDY .................... : PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------ MELADATHIKANDI K.K.VILASINI, D/O.SANKARAN, RESIDING AT BALUSSERY AMSOM, THURITHIYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.P.KELU NAMBIAR (SR.) SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: RESPONDENT/PETITIONER ---------------------------------- K.C.REMANI AMMA, D/O.PADMAVATHI AMMA, RESIDING AT DWARAKA, BALUSSERY AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/08/2008, THE COURT ON 7.8.2008 PASSED THE FOLLOWING: ORDER ON IA NO.1470/2008 DISMISSED. 7.8.2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.157 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of August, 2008. O R D E R Ramachandran Nair, J. The tenant is the revision petitioner. Eviction was sought by the landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court allowed eviction under Section 11(3) of the Act and the same stands confirmed by the Appellate Authority as per the judgment impugned. 2. Learned counsel for the petitioner mainly contended that the finding rendered by the authorities below regarding the genuineness of the bonafide need is clearly erroneous. It was submitted that the landlady had been demanding enhanced rent and the said conduct will show that the bonafide need pleaded is not genuine. Coupled with it, the delay in filing the Rent Control Petition after the issuance of the notice clearly disentitles the eviction sought under Section 11(3) of the Act. 3. We find that the Rent Control court has gone into in detail the evidence adduced by the parties. As regards the bonafide need pleaded, the Rent Control Court was of the view that going by the facts proved in RCR 157/2008 -2- evidence, the mere fact that the landlady is having some property or getting some income, could not cast a doubt on the bonafides of the petitioner. It was also found that her daughter is a student and the husband was not fully fit. The main income of the family is only the rent from the building, i.e. Rs.3,100/- per month. The evidence of P.W.1 shows that neither she nor her husband has got any job. In fact, there was no evidence from the part of the tenant to sustain the plea that the landlady has got huge income from the properties. For all these reasons, it was found that the need put forth by the landlady to conduct a business to augment the income of the family is genuine. 4. As regards the alleged delay in filing the Rent Control Petition, the landlady had explained that her husband was laid up for a long time which delayed the filing of the Rent Control Petition, which aspect was also noticed by the Rent Control Court. These findings have been confirmed by the Appellate Authority also. On this aspect, there is no contention for the petitioner that change of circumstances has taken place to non-suit the landlady. Hence, we are of the view that the alleged delay in filing the petition after the notice was issued to the tenant is not fatal at all. 5. The next question is whether the demand for higher rent will be a fact which affects the bonafide need. It is well settled that periodical RCR 157/2008 -3- request for enhancement of rent will not show that the bonafide need pleaded is not genuine. The said legal position is well settled by the various decisions of this court and that of the Apex Court (See Sukesini Amma v. Nagarajalu (2004 (2) KLT 427). Therefore, the argument that the bonafide need pleaded is not genuine as there was a demand for increasing the rent, cannot hold good and we reject the same. 6. The Appellate Authority has also examined the question in detail and found that the bonafide need pleaded is genuine. Reliance was placed on the evidence of the tenant as R.W.1 that the landlady or her husband have no income or job. It was found that merely because the landlady has some property, that will not be a ground to hold that the bonafide need pleaded to conduct a business, is not genuine. It was also found that as the landlady and her husband have no substantial income of their own, the case that she actually wants to start a business so as to earn money for the requirements of the family appears to be quite genuine and sincere. It was found that she was not having any other room in her possession to conduct business. We have considered the said findings in the light of the evidence adduced and are satisfied that the ground pleaded under Section 11(3) of the Act for eviction has been clearly established. At any rate, the findings RCR 157/2008 -4- rendered by the Appellate Authority are not perverse warranting interference in the exercise of revisional jurisdiction. 7. As regards the benefit of the second proviso to Section 11(3) of the Act, it was found by the authorities below that she is not entitled to get the protection under the said provision. It is well settled that the burden is on the tenant to prove the ingredients to get the protection. In this case, the landlady has discharged her burden of proof that there are other rooms available in the locality for the tenant to occupy. The admission of the landlady that the tenant is depending on the income from the business being carried out in the petition schedule building was accepted to find in favour of the tenant. But in view of the finding that other alternate rooms are available in the locality, it was rightly held that the tenant is not entitled to get the protection of the second proviso to Section 11(3) of the Act. We find no ground to interfere with the said finding also. 8. For all these reasons, we find that there is no ground to interfere with the view taken by the Appellate Authority and we dismiss the revision petition. 9. In the facts and circumstances of the case, we grant three months time from today to the petitioner to vacate the premises on condition that he files an undertaking in the form of an affidavit before the Rent Control RCR 157/2008 -5- Court undertaking to vacate the premises unconditionally on or before the expiry of three months from today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. The petitioner shall also deposit the entire arrears of rent, if any, within the aforesaid period of three weeks and shall continue to pay an amount equivalent to the rent payable, towards compensation for use and occupation, till possession is surrendered. If any of the conditions aforesaid is violated, then the order of eviction will become enforceable at once. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/