IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 RCRev..No. 430 of 2011 (D) ------------------------------- RCA.4/2007 of ADDL.DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.27/2005 of RENT CONTROL COURT, KODUNGALLUR .................... REVISION PETITIONER/APPELLANT/2ND RESPONDENT ------------------------------------------------------------ RAJANI,W/O.PATHISSERRY VEETIL SADASIVAN, LOKAMALESWARAM VILLAGE,THANDAKULAM DESOM, KODUNGALLUR TALUK,THRISSUR DISTRICT. BY ADV. SRI.RENJITH THAMPAN, SENIOR ADVOCATE SRI.V.M.KRISHNAKUMAR RESPONDENT(S): PETITIONER AND IST RESPONDENT. ------------------------------------------------------------ 1. ABDUL SAMED,S/O.AYYARIL THAICHALI VEETIL ABDUL KADER,AZHIKODE VILLAGE,DESOM,KODUNGALLUR TALUK,THRISSUR-680666. 2. RAVINDRAN,S/O.PATHISSERY VETTIL PARAMBU, LOKAMALESWARAM VILLAGE,THANDAKULAM DESOM, KODUNGALLUR TALUK,THRISSUR DISTRICT,PIN-680664. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ R. C. R. No.430 of 2011 ------------------------------------------------ Dated this the 14th day of November, 2011 ORDER Harilal, J The revision petitioner/tenant was the appellant before the Appellate Authority, Thrissur in RCA.4/07 and 2nd respondent/tenant in RCP.27/05 of the Rent Control Court, Kodungallur. The RCP was filed under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act. According to the landlord, 1st respondent in the RCP Raveendran is conducting a ration shop and stationery business in the petition schedule shop room and he has committed default in payment of rent from June, 2004 onwards. In spite of notice dated 12/07/05 he has not paid rent arrears. According to the landlord/1st Respondent 2nd Respondent Raveendran is the tenant in possession of the petition schedule building. Sri.Raveendran has raised a contention that the revision petitioner Rejani is conducting R. C. R. No.430 of 2011 -2- the ration shop and she has filed a suit as O.S.546/05 against the landlord/1st Respondent seeking injunction against forcible eviction. 2nd respondent/revision petitioner also contended that there is no landlord-tenant relationship between the landlord and Raveendran and she has taken up the shop room from previous owner Lekshmikutty and still continuing there. 2. The need projected in the petition is for starting a grocery shop and stationery business in the petition schedule property. According to the landlord/1st Respondent, he has no other sources of income other than his income from landed property. He would further say that he is not in possession of any other vacant building of his own for starting the proposed business. Rajani the Revision petitioner herein contended that the need alleged in the petition is false and it is only a pretext for eviction. According to Rajani, the income derived from her ration shop is the only sources of income for her livelihood and no other R. C. R. No.430 of 2011 -3- suitable buildings are available in the locality to shift her business. In view of the above rival contentions the learned Rent Controller raised an issue who is the tenant of the petition schedule building and found that Rajani is the tenant of the petition schedule building. 3. The first question considered by the Rent Controller is whether the petitioner is entitled to get eviction under Section 11(2)(b). Admittedly no notice was issued against Rajani as contemplated under Section 11(2)(b) of Kerala Buildings (Lease and Rent Control) Act and eviction sought for under Section 11(2)(b) was found in favour of the tenant. No appeal was filed against the above finding. Thus eviction under 11(2)(b) had attained finality. 4. Then the question to be considered is whether the concurrent findings of the courts below under Section 11(3) are vitiated by irregularity, illegality and impropriety. The landlord/1st Respondent was examined as PW1 and Tenant/Revision petitioner was examined as RW1. Exts.A1 to R. C. R. No.430 of 2011 -4- A6 were marked for the landlord and Exts.B1 to B3 were marked for the tenant/Revision petitioner. Exts.C1 and C1(a) marked as court exhibits. 5. We heard Sri.V.M.Krishnakumar, the counsel for the Revision petitioner. The counsel submits that the impugned judgment is vitiated by irregularity and illegality. The alleged bona fide need is false, untrue and a pretext for eviction only. The landlord has filed the petition with pleadings that 2nd Respondent Raveendran is the tenant. Hence, court below ought to have dismissed the petition. He further contended that the courts below ought to have considered above conduct of the landlord. He further submits that the tenant is a statutory ration dealer and she is entitled to get protection under that count also. According to the counsel, second proviso to 11(3) of the BRC Act ought to have been found in favour of the tenant. 6. According to the landlord, he is in need of the petition schedule building for starting grocery shop and R. C. R. No.430 of 2011 -5- stationery business. He has no job or business. Therefore, he wants to start a business of his own. He further deposed that he purchased the petition schedule building with an intention to start a business of him in his own property. Per contra the tenant's case is that the landlord is having sufficient means and income from the landed properties and therefore, there is no necessity for him to start a business. When Landlord was cross examined as PW1 a specific question was put to PW1 in the following lines:- “sX§nÂ \n¶pÅ BZmbs¯ B{ibn¨v Pohn¡p¶ BfmWv \n§Ä (Q). AsX (A)” Thus the tenant herself admitted that the income from the landed property is the only sources of income of the Landlord. PW1 said that he is getting only a meagre agricultural income from the landed properties and therefore, he wants to start the business of his own. There is nothing to disbelieve the case of the Landlord. The need urged by the Landlord appears to be natural and reasonable R. C. R. No.430 of 2011 -6- and a person placed in position of PW1 would have felt such need. Therefore, we also agree with the finding that the needs spoken to by the Landlord is bona fide, genuine and honest. 7. The next question is whether the bona fide need is hit by 1st proviso to Section 11(3) of the BRC Act. It is well settled that initial burden of proving the ingredients of the first proviso to Section 11(3) is on the tenant. The tenant though in her counter statement would say that the Landlord is in possession of other buildings of his own, absolutely there is no evidence to support the said case and she admitted that she has hearsay knowledge only with respect to that aspect. Thus, there is no evidence before the court to show that the landlord is in possession of other vacant building of his own for starting the proposed business and the tenant/revision petitioner failed to establish the ingredients of the first proviso to Section 11(3). 8. The remaining question is whether the Revision R. C. R. No.430 of 2011 -7- petitioner/ tenant is entitled to get protection under the 2nd proviso to Section 11(3). It is also well settled that the tenant has to establish both limbs of second proviso. The tenant has to establish that he is depending mainly on the income derived from the business carried on in the tenanted building and further he has to prove that no other buildings are available in the locality for the occupation of the tenant. Though the tenant would contend that the income derived from the ration shop is the main sources of income, she has not produced any document to show what is the income which she derives from the business carried on in the scheduled shop room and no evidence was adduced to establish the ingredients of the first limb. When coming to second limb, Ext.C1 Commission Report would show that many vacant buildings are available in the locality for the occupation of the tenant. The learned counsel for the revision petitioner/tenant contended that Ext.X1 Accommodation Register could not show any vacant rooms R. C. R. No.430 of 2011 -8- available in the locality. It may be true that in Ext.X1 vacancy register, the availability of vacant rooms are not seen entered. But it is seen that during the cross examination, RW3/the Accommodation Controller has categorically deposed that only if he gets owners report about the availability of vacant buildings, the same would be entered in the vacancy register. Therefore, in this case Ext.X1 cannot be taken as a reliable document to show that the non-availability of alternate building in the locality. Ext.C1 is a positive evidence before the court to show that many vacant buildings are available in that locality and the tenant has admitted that she has not made any enquiry regarding the availability of alternate shop rooms to shift her business. So, we fully agree with the finding that the revision petitioner/tenant miserably failed to discharge burden of proof and thereby she is not entitled to get the protection under the second proviso to 11(3). 9. Thus, we cannot find any illegality, irregularity or R. C. R. No.430 of 2011 -9- impropriety in the impugned order and also there is no scope for interference in appreciation of evidence under the limited jurisdiction of Section 20 of the Kerala Buildings (Lease and Rent Control) Act. 10. In the result, this Revision Petition fails and is dismissed accordingly. 11. The counsel for the petitioner sought for one and a half year's time to vacate the premises. Considering the nature of the business in the shop room, we see some force in the request. But we are not inclined to grant so much of time without issuing notice to the respondents. Hence, issue notice to the respondents by speed post. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K. HARILAL JUDGE kns/- //True Copy// P. A. To Judge R. C. R. No.430 of 2011 -10-