IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 RCRev..No. 313 of 2007() ------------------------ RCA.7/2007 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.198/2005 of III ADDL.M.C.EKM (RENT CONTROL) .................... PETITIONER/APPELLANT/RESPONDENT: -------------------- P.N.RADHAKRISHNAN, AGED 48, S/O P.K.NARAYANAN, QUEEN INDIA, BUILDING NO.XL/7493, SHARMA BUILDINGS, SHARMA COMPLEX, CHITTOOR ROAD, KOCHI-11. BY ADV. SRI.ALOSIOUS GILBERT SRI.GEORGE ZACHARIAH ERUTHICKEL RESPONDENT/RESPONDENT/PETITIONER: --------------- P.V.RAMAKRISHNA SHARMA, S/O P.V.V.SHARMA, AGED 64, MUNDYATH PARAMBU, SHARMA BUILDINGS, CHITTOOR ROAD, KOCHI-11. ADV. SRI.M.P.RAMNATH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON 21/10/2008 PASSED THE FOLLOWING: ORDER ON I.A.NOS.2447/2007, 854/2008 AND 1893/2008 IN R.C.R.No.313/2007 CLOSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 21/10/2008 \\TRUE COPY// P.A TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.313 of 2007 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2008. O R D E R Ramachandran Nair, J. The tenant in a petition for eviction under the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act') is the petitioner herein. Both the authorities below ordered in favour of the landlord, finding that the grounds under Section 11(3) of the Act have been proved. 2. The main argument raised by the learned counsel for the petitioner concerns the attack against the bonafide need pleaded and also on the applicability of the first proviso to Section 11(3) of the Act. As regards the second aspect, it is contended that the landlord was having in his possession a vacant room in the very same building at the time of filing of the petition and in the absence of any explanation or special reasons, the eviction petition can only be dismissed. 3. Herein, the building is a two storied one, situated at Chittoor Road, Ernakulam. The petition schedule room is the southern most room having door No.40/7493 in the ground floor. The petitioner is running a telephone RCR 313/2007 -2- booth and stationary shop in the name and style “Queen India”. The room is required by the landlord for the bonafide own occupation of his son Shri Balasubromanian who is aged 33 years and is unemployed and is dependent upon the landlord for the room. He intends to start a telephone booth-cum-photostat shop and allied business in the schedule room. 4. The objections raised by the tenant are three fold. Firstly, that the landlord had been successively trying to get eviction by sending notices and then settled for enhanced rent which indicates that there is no bonafide need. Mention is made in this context the notices dated 28.10.1992 and 10.3.1998. Secondly, it was contended that his son Shri Balasubramonian is conducting a business in the name and style “Victor Agencies” in a portion of the same building and at Vyttila and hence there is no requirement for the room in question. Thirdly, it was contended that there are no other buildings available in the locality to shift the business of the tenant and lastly it was contended that the landlord was having another room in his possession. 5. The evidence consists of the oral evidence of P.Ws.1 and 2 and Exts.A1 to A4 on the part of the landlord. R.W.1 was examined and Exts.B1 to B9 were marked on the side of the tenant. Ext.C1 is the report of the Commissioner and Ext.C1(a) is the sketch. 6. The contentions as shown above have been rejected by both the RCR 313/2007 -3- authorities below. Learned counsel for the revision petitioner vehemently contended that the approach made by the authorities below is totally faulty. There is clear evidence to show that the landlord was having vacant possession of a room at the time of filing of the eviction petition and no special reasons have been offered to attract the first proviso to Section 11 (3) of the Act. It is also contended that the son of the landlord is already having other business and the requirement is not bonafide. Our attention was invited to the oral evidence of P.W.1 and R.W.1 to sustain the above argument. 7. Before going into the details, we may refer to the findings rendered by the Rent Control Court on this aspect which now stands confirmed by the Appellate Authority. The building in question is a two storied one. There are four tenants in the ground floor and three in the upper floor. In the ground floor, apart from the petitioner, the other rooms are occupied by Jyothy Medicals, Chittoor Medicals and Surya Studio. In the upper floor one room is in the occupation of another son of the landlord Shri Vaidyanathan who is conducting business there. Regarding the remaining two rooms, one is in the possession of AIMS and another in the possession of Shri George Thomas who is running a photostat shop therein. The authorities below therefore, while appreciating the above factual matrix, entered into a finding that there is no evidence to show that there RCR 313/2007 -4- were rooms lying vacant and in the possession of the landlord at the time of filing of the eviction petition. 8. It is true that in the cross examination of P.W.1, he was asked whether three rooms were lying vacant at the time of filing of the petition to which he answered that, there was only one. At another portion of the deposition of P.W.1, there is a statement to the effect that Jyothy Medicals and Chittoor Medicals are run by new occupants from about nine months back. Therefore, the contention is that these two rooms were vacant prior to nine months of his examination before the court below. Thus, it is pointed out that three rooms were remaining vacant at the time of filing of the eviction petition. 9. On a reading of the deposition of the landlord in its entirety, it is clear that the said argument is not correct. As pointed out already, the ground floor consists of four shop rooms and the first floor consists of three rooms. He has explained in the cross examination that as far as Jyothy Medicals and Chittoor Medicals are concerned, their ownership changed at different times. When the whole deposition is read together, it is clear that the argument that Jyothy Medicals and Chittoor Medicals were lying vacant nine months prior to the date of examination of the landlord in the Rent Control Court is not correct. There is nothing to show that he had obtained vacant possession of the rooms and the only thing is that there had been RCR 313/2007 -5- some change in the ownership of those medical shops. As far as the other room is concerned, it is true that in the deposition, in cross examination he stated that one room was there at the time of filing of the eviction petition, but in another part of the deposition, he has clearly stated that that room is occupied by his another son Vaidyanathan. This is clear from his answer in the cross examination that in the first floor there are three rooms including one in which Vaidyanathan is conducting business, another one occupied by AIMS and the third one occupied by George Thomas who is conducting a photostat business. Thus, it is clear that the tenant's contention that there were vacant rooms available at the time of filing of the eviction petition, is factually incorrect. The argument raised by the learned counsel for the petitioner relying upon the answers given in the cross examination, cannot hold good in the light of the facts which have been deposed by him in the cross examination itself explaining the various aspects and also naming the occupants of each room. The petitioner had not taken out any commission to led any independent evidence to prove that the landlord was having vacant room/rooms in his possession. Hence, the first proviso to Section 11 (3) of the Act is not helpful to the tenant. 10. As regards the genuineness of the bonafide need, what is pleaded is that the room in question is a small room of the entire building which is being used by the tenant for conducting the business in question. It RCR 313/2007 -6- is argued, by relying upon the deposition of P.W.2, the son of the landlord, that he has clearly stated that the other rooms in the ownership of his father are not required by him since that much area is not required. It is therefore contended that this will cut at the root of the bonafides, as his intention to start business in a small room rather than occupying a bigger one is clearly doubtful. It is important to notice that what is proposed is the conduct of a telephone booth plus photostat-cum-stationary shop. Practically the same business is being run by the tenant. According to the tenant, he is running a good business there. Therefore, the argument that so much of activity cannot be done in the room in question and the actual requirement is of a larger room and the idea is only to seek eviction, does not appear to be correct. It is important to notice that P.W.2 was never asked anything about availability of vacant room in the building at the time of filing of the eviction petition. He has clearly stated that he has no other avocation in life. It is contended by learned counsel for the petitioner that the deposition of P.Ws.1 and 2 if taken together, will not show necessary ingredients to support the plea that the son is dependent upon the father for getting the room in question. The evidence of P.Ws.1 and 2 will show that they have clearly explained that the room in question is required for the business purpose of the son and there are no other vacant rooms available to the son as well as to the father for the purpose of doing the said business. In the RCR 313/2007 -7- proof affidavit of P.W.2, it has been clearly stated that for getting the room in question he is dependent upon his father. He has also explained that he has no other building. It is therefore clear that the son is clearly dependent upon the father to get eviction of the room. In fact, P.W.1 has clearly stated that presently the son has arranged business in the residential building itself which is situated just behind the building in question and he has started it only as a temporary measure expecting the building to be evicted. The allegation that he has got business at Vyttila, has also been denied. We are of the view that the argument of the learned counsel for the petitioner on this aspect is also not correct. The authorities below have correctly appreciated the facts and evidence in the case including the pleadings and have arrived at the right conclusion that the bonafide need pleaded is genuine. 11. The other argument raised by the learned counsel for the petitioner is that successively the landlord has been demanding enhanced rent and therefore the eviction sought is only a ruse. Reliance is placed on the notices Exts.B1 to B5. The landlord has explained that even though the room was required for the purpose of another son Shri Vaidyanthan, for which purpose a notice was sent on 20.7.2001 through the lawyer, subsequently he obtained a job as Still Photographer in cinemas and the requirement to get the room vacated was not pursued. Subsequently, he RCR 313/2007 -8- died in an accident. Apart from that, merely because a demand for higher rent was raised at some time past, that will not show that the bonafide need pleaded is not genuine and that the attempt is only a ruse to get the building evicted. The Rent Control Court was right in relying upon the decision of this court in John v. District Court (1992 (1) KLT 803) to the effect that the fact that the landlord demanded higher rent on previous occasions which the tenant declined to oblige, is no reflection or any oblique motive on the part of the landlord claiming eviction on the ground of bonafide need. Further, the demands made earlier, i.e. five years back cannot show that the bonafide need now pleaded is not genuine. 12. Learned counsel for the petitioner relied upon various decisions of this court, viz. Umanath Mallar v. Buhari (1964 KLT 883), Sadanandan v. Kunheen (ILR 1992 (1) Ker. 247) and Albert Mendez v. Rema Chandran (2007 (3) KLT 23) in support of his arguments. In Umanath Mallar's case (supra), the question that arose was regarding the constitutional validity of the proviso to Section 11(3) of the Act. It is true that this court held that the “object of the proviso to Section 11(3) is obviously to safeguard the tenants depending for their livelihood on the trade or business carried on by them in a rented building from eviction from such building until a suitable building in the locality is available to them to carry on their trade or business.” But that has no application to the facts of RCR 313/2007 -9- this case. In Sadnandan's case (supra) the point considered is regarding the burden of proof as regards the proviso to Section 11(3) of the Act. It is well settled by various decisions of this court including the decision of a Full Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230) and by a recent decision rendered by us in Thanuja Sunderdas, T. v. T.V. Suryamkandi Sisirkumar Raj and others (ILR 2008 (3) Ker. 815), the burden is on the tenant to prove the benefit of the second proviso. Therefore, nothing turns upon the decision in Sadanandan's case (supra). In Albert Mendez's case (supra), it has been held that dependency on the landlord has to be pleaded and proved. There can be no quarrel with the above proposition. But, herein the landlord has clearly explained that his son Balasubramonyan has no other building in his possession and he is dependent upon him for getting the room evicted. P.Ws.1 and 2 have clearly spoken in their evidence about the requirement and the dependency of the son on the father for getting the building evicted. Therefore, we are of the view that the argument of the learned counsel for the petitioner on this score has also to fail. 13. As regards the benefit of the second proviso to Section 11(3) of the Act, the landlord in his evidence has stated that the tenant is running another business known as “Parappuram Chitties Private Limited” which is having Head Office at Jews Street, Ernakulam and branches at Edappally RCR 313/2007 -10- and Aluva and that he is getting good income from the said business also. That he is one of the Directors of “Parappuram Chitties Private Limited” is admitted in his examination as R.W.1. But according to him, the business is being run at a loss. No documents have been produced by the tenant in support of the said plea. Clearly, the burden was on him to prove that he is depending mainly on the income derived from the business in the petition schedule building, for his livelihood. That was not done. In his deposition, the landlord has clearly stated that several buildings are available in the locality for shifting the business of the tenant. Regarding this aspect also, the tenant has not adduced any independent evidence. He has also not adduced any tangible evidence to show that he has made out enquiries in the matter. On these two grounds therefore, the authorities below have concurrently found that the tenant is not entitled to get the benefit of the second proviso to Section 11(3) of the Act also. Even though learned counsel for the petitioner wanted us to scan the evidence on this aspect and hold otherwise, we are afraid, in exercise of the powers of revision, we cannot substitute our views to that of the authorities below, especially since the view taken cannot be said to be perverse. As noted already, the burden is on the tenant to prove the ingredients to satisfy the second proviso. Therefore, both the authorities rightly have found that the tenant is not entitled to get the benefit of the second proviso also. RCR 313/2007 -11- 14. In this revision petition, the landlord has filed I.A.No.854/2008 mainly for a direction to the tenant to pay arrears of rent and electricity charges. Some documents have been produced along with the said I.A. In the said application, it is averred that the premises is remaining locked since December 2006 and that this was separately intimated to the Appellate Authority also by an affidavit. Any way, we have entered findings on the merits of the matter to hold that the view taken by the authorities below is not perverse. We are of the view that the landlord has successfully proved the bonafide need to get the building vacated. Therefore, we need not go into those aspects in this revision petition. The revision is therefore dismissed. However, the petitioner is granted two months time from today to vacate the premises on the following conditions: i) That the entire arrears of rent, if any, shall be deposited before the Execution Court within a period of one month from today and the petitioner shall also file an affidavit within the said time undertaking to give vacant possession of the tenanted premises on or before the expiry of the period of two months from today, i.e. on or before 21.12.2008. ii) that the tenant shall not induct any third party into the premises; iii) that an amount equivalent to the rent towards use and occupation of the building shall be regularly paid by the tenant until vacant RCR 313/2007 -12- possession is given; and iv) that if for any reason the tenant fails to comply with the aforesaid conditions, the order of eviction passed by the court below will forthwith become enforceable. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/