C.S. Balan vs Meharuneesa C.A.

K. Ramakrishnan, J.—1. The respondent/tenant in R.C.P. No. 50 of 2012 on the file of the Rent Control Court, Palakkad is the revision petitioner herein. The respondent herein is the landlady of the building which was let out to the revision petitioner on a monthly rent of Rs. 1,250/-. The building originally belonged to the husband of the landlady, Mohammed Asharaf. After his death, it devolved on her and her children. The building was taken on rent from late Asharaf by the revision petitioner herein for the purpose of conducting business in chips under the name and style M/s. Nisha Chips and the present rent of the building is Rs. 1,250/- per month. After the death of Mohammed Asharaf, the tenant attorned to the present landlady and her children and he is continuing to pay the rent to her. There is no arrears of rent. The landlady has no business of her own. The landlady and her daughters are solely depending on the income of the landlady''s son. At present he is also without any employment and he intends to start a business in automobile spare parts in the petition schedule building. So, they bona fide require the petition schedule building for starting the proposed business for the son of the landlady. The petition is filed for and on behalf of the other co-owners as well. They have no objection in the present landlady filing the application and also doing business in the premises. Though a notice has been issued to the tenant asking him to vacate the premises, he sent a reply with false allegations. He is having two other business places in the same town and he is manufacturing chips and also having retail shops for selling the same. Further, he had constructed an oven in the petition schedule building without the consent of the petitioner. Since the tenant did not vacate the premises, she has no other option but to file an application for eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as ''the Act'' for short.

The revision petitioner entered appearance and filed objection denying the allegations in the petition. According to him, he had taken the building on lease some 27 years back from one H. Abu, the father of Mohammed Asharaf and thereafter he was conducting business in the premises and thereby acquired a goodwill. He denied the allegation that the petitioner and her daughters are without any employment and they want to start a business in automobile spare parts with the help of the son of the landlady to eke out their livelihood. In fact, the petitioner''s son is having his own employment and he does not want to do any business. The attempt of the petitioner is only to evict the present tenant from the petition schedule building and let out the same for higher rent to others. The allegation that he constructed an oven is not correct. He is eking out his livelihood from the income derived from the business carried on in the petition schedule building and no other vacant buildings are available in the locality for shifting his business. So, he prayed for dismissal of the petition.

The son of the petitioner was examined as P.W. 1 and Exts. A1 to A7 were marked on her side. The respondent/tenant was examined as R.W. 1 and two other witnesses were examined as R.Ws. 2 and 3 and no documents were marked on his side. Ext. C1 the report of the Commissioner was also marked.

After considering the evidence on record, the court below found that the bona fide need alleged by the landlady is genuine and the tenant is not entitled to get the proviso protection and allowed the application under section 11(3) of the Act. Aggrieved by the same, he filed R.C.A. No. 28 of 2013 before the Rent Control Appellate Authority, Palakkad which was made over to Additional District Court I, Palakkad for disposal and the appellate authority also dismissed the appeal confirming the order of eviction passed under section 11(3) of the Act. Aggrieved by the same, the present revision petition has been filed by the revision petitioner/tenant before the court below.

Shri Rajesh Narayan Iyer entered appearance for the respondent/landlord. Since the respondent appears through learned counsel, the revision petition is admitted and disposed of today itself, as the documents were made available for perusal by the counsel.

Learned counsel appearing for the revision petitioner submitted that the courts below have not properly appreciated the evidence and also submitted that the revision petitioner wants one year''s time to vacate the premises if this court is not inclined to interfere with the order of eviction passed by the courts below.

On the other hand, learned counsel for the respondent submitted that the courts below have properly appreciated the evidence and rightly ordered eviction and the concurrent findings of the courts below do not call for any interference. Further, the tenant is having other business places. So, no time need be granted.

The claim of the landlady in the petition was that after the death of her husband, they are without any income and the landlady and her daughters were depending on the income of her son and the son is also without any employment now. So, they wanted to start a business in automobile spare parts in the petition schedule building and they have no other building in their possession. They have also contended that the tenant is not depending on the income derived from the business carried on in the petition schedule building and there are other buildings available in the locality. The allegations in the petition were denied by the tenant/respondent.

In order to prove the case of the landlady, the son of the landlady was examined as P.W. 1 who is also one of the co-owners of the building. He had deposed that he had earlier some employment but now he is without any employment and he wants to start business in automobile spare parts and there are no other buildings in their possession. Though the tenant had a case that the son of the landlady is having other business and he had no intention to start a business, nothing was brought out from the evidence of P.W. 1 to discredit the need alleged by him. No acceptable evidence has been adduced by the tenant to prove that he is having any occupation or employment as well. The tenant had no case that the landlady is having any other building in her possession for this purpose as well. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that the need alleged by the landlady is bona fide.

It is settled law that even if the court finds that the need alleged is genuine, if the tenant is able to establish that he is eking out his livelihood from the income derived from the business conducted in the petition schedule building and there are no other suitable buildings available in the locality to shift his business, then the court shall not direct the tenant to put in possession of the building to the landlord. But it is also settled law that both the limbs of the second proviso to section 11(3) of the Act have to be proved by the tenant and if any one of the limbs is not proved, then he is not entitled to get the benefit. In this case, Ext. C1 report of the Commissioner will go to show that just near to the petition schedule building, there is a building belonging to the wife of the tenant Smt. Omana and there the Commissioner found that the licence is issued in the name of the present revision petitioner and a board in the name of "Nisha Chips" was seen. The tenant had, when examined as R.W. 1, stated that the business is conducted by his brother-in-law, but no document has been produced to prove this fact. Further, the evidence of R.W. 1 will go to show that apart from manufacturing chips, he has got retail outlets also and he has not produced any document to prove that the income derived from the business conducted in the petition schedule building is the main income for eking out his livelihood.

Further, the evidence of P.W. 1 coupled with Ext. C1 commission report also will go to show that there are other buildings available in the locality for the tenant to shift his business. The evidence of R.Ws. 2 and 3 has been rightly rejected by the courts below as they are now trying to help the revision petitioner/tenant and that was the reason why they came and have given evidence to the effect that there are no other rooms available in the locality. The burden of proving non availability of rooms in the locality has not been established by the tenant. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that the revision petitioner is not entitled to get the second proviso protection and rightly ordered eviction under section 11(3) of the Act. The concurrent findings of the courts below on facts on this aspect do not call for any interference to invoke the power under section 20 of the Act and the revision petition fails and the same is liable to be dismissed.

Before disposing of the revision petition, learned counsel for the revision petitioner submitted that considering the nature and volume of business and the goodwill, the revision petitioner may be granted one year''s time to vacate the petition schedule premises. This was strongly opposed by the learned counsel for the respondent. Considering the circumstances, nine months'' time from today is granted to the revision petitioner/tenant to vacate the petition schedule premises on condition that he shall pay rent at the rate of Rs. 2,500/- per month from 1.1.2016 and also file an undertaking that he will surrender the building within the time specified by this court without any objection and that he will not induct any strangers in the petition schedule building and will not sub let or alienate the building. He shall also deposit or pay the entire arrears of rent, if any, within one month from today. The revision petitioner is directed to file the undertaking in the form of an affidavit before the rent control court or before the execution court if any execution petition is pending, within a period of one month from today. If the revision petitioner did not file the undertaking as stated above and paying the rent at the above rate, then he is not entitled to get the benefit of time to vacate the premises as granted by this court.

With the above directions and observations, the revision petition is dismissed. The parties are directed to bear their respective costs in the revision petition.