Chandran Koran vs Palakkandy Assan Koya

Ramakrishna Pillai, J.—The tenant is in revision. The respondent/landlord sought eviction of the revision petitioner from the tenanted premises under Sections 11 (2)(b) and 11 (3) of the Kerala Buildings(Lease and Rent Control) Act, herein after referred to as the Act. The case of the respondent was that the tenanted premises was leased out to the revision petitioner on a monthly rent of Rs. 22.50 and the revision petitioner paid rent only up to the month of April 2008. His further case was that he needed the tenanted premises for the occupation of his son, who is a design engineer by profession, as he has to start his office in the tenanted premises and no other vacant room is in their possession for the proposed need. It was further alleged that the revision petitioner is not depending upon the income derived from the tenanted premises and buildings are available in the locality to shift his business.

The revision petitioner, who resisted the claim petition, contended that the rent upto September 2008 was paid and the respondent failed to receive the rent thereafter. It was his further case that even if the rent was sent by Money Order, it was not received by the respondent. The allegation regarding the need was denied contending that it was only a ruse for eviction. It was further contended by the revision petitioner that the respondent is having so many other vacant rooms in his possession and after sending notice to one of the tenants, he got vacant possession of one room which was let out to another person for higher rent. His further case is that the tenanted premise is not suitable for alleged requirement of the son of the respondent. Thus, he prayed for dismissal of the claim petition.

The Rent Control Court after raising proper points for trial permitted both sides to adduce evidence and on the basis of the evidence consisting of the oral testimony of PW1, PW2 and RW1 as well as Exts.A1 to A 4(d) and Exts. B1 to B5, allowed the petition on both grounds. The revision petitioner took the matter in appeal before the Rent Control Appellate Authority, but without success. Hence, this revision.

We have heard the Learned Counsel for the revision petitioner at length. We have also perused the impugned judgment.

The tenancy is admitted. The rate of rent of the building was also admitted. The case of the revision petitioner is that he has discharged the rent up to September 2008. The Learned Counsel for the revision petitioner relied on Ext.B3 and Ext.B5 Money Order receipts and submitted that it was due to the failure on the part of the respondent to receive the rent and the revision petitioner cannot be blamed for the same. However, both the courts below relying on the testimony of PW1 found that the revision petitioner defaulted in paying rent with effect from 1/5/2008. It was found by both the courts below that the entire arrears of rent was not sent by Money Order and the respondent/landlord cannot be found fault with for not receiving the same. We see no justification for interfering with the findings of the court below confirming the order of eviction u/s 11 ( 2 ) (b). However, we make it clear that it is open to the revision petitioner/tenant to get the order of eviction passed u/s 11(2)(b) vacated by invoking section 11 (2)(c) of the Act.

Coming to the bona fide need, the courts below relied on the testimony of PW1 and found that the son of the respondent, a design engineer who is running his office in a rented building near Apsara theatre, Calicut is in need of the tenanted premises to shift his office. The contention taken by the revision petitioner that the tenanted premises is not suitable to conduct the proposed business of the respondent''s son was also rightly repelled by the courts below finding that the respondent can make the building suitable to the requirements of his son after getting the revision petitioner evicted from the tenanted premises.

The main contention raised by the Learned Counsel for the revision petitioner is that the up stair portion of the building where the petition schedule room is located is lying vacant and the same could be utilised by the respondent for the proposed business. But, the courts below have found that it is only a tiny space to which there is no proper access even. As there is no convincing evidence to show that the upstair portion of the building can be conveniently used by the respondent for the proposed business, we are of the view that the claim is not liable to be rejected under the first proviso to section 11 (3).

The further contention of the revision petitioner was that another building, which was in the possession of one Radha, was subsequently handed over to one Jodesh and this is valid ground to hold that there is no genuineness in the need projected by the respondent. Admittedly, the respondent has rented out the room to one Radha where one Sadashivan close relative of Radha was conducting business therein. Subsequently, that was taken over by Jodesh who is other than the son of Sadashivan. Unless and until there is some evidence to show that the respondent obtained vacant possession of that premises from Radha, the claim cannot be defeated for lack of bona fides. On a total appreciation of the evidence on record, both the courts below found that the need of the respondent/landlord is bona fide and we see no reason to interfere with the same.

Regarding the first limb of the second proviso to sub section (3) of Section 11, the learned Rent Control Appellate Authority found that the revision petitioner is depending upon the income derived from the cycle shop set up in the tenanted premises. But, as the both limbs of the second proviso are conjunctive, the Appellate Authority tilted the balance in favour of the respondent as the revision petitioner failed in proving that no alternate site is available in the locality to shift his business.

On going through the entire evidence on record, we are of the view that both the courts below have appreciated the evidence in the correct perspective and have arrived at a correct conclusion. The impugned judgment does not call for an interference by this Court u/s 20 of the Kerala Buildings (Lease and Rent Control )Act as the same does not suffer from any illegality, irregularity or impropriety. In the result, the revision fails and accordingly, the same is dismissed. When our decision was made known to the Learned Counsel for the revision petitioner, he requested one year time to surrender vacant possession of the tenanted premises. We are of the view that we will not be justified in granting so much of time without hearing the respondent. Hence, notice be issued to the respondent/ landlord for hearing on the question of time if any to be granted to the revision petitioner for surrendering vacant possession of the tenanted premises.

The execution proceedings if any shall be kept in abeyance for three months.