K. Sivadasan vs Sailaja V.

K. Ramakrishnan, J.—1. The tenant/respondent in R.C.P. No. 35 of 2012 on the file of the Rent Control Court, Thiruvananthapuram is the revision petitioner herein. The respondent/landlady filed an application for eviction of the petition schedule building from the possession of the tenant on the ground of arrears of rent and bona fide need under sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter called ''the Act'' for short). The case of the landlady in the petition was that she is the owner of the property and she had let out the building to the tenant in the year 1998 on a monthly rent of Rs. 300/-. The rent has been enhanced periodically and from July 2010, the rent is Rs. 1,250/- per month. The tenancy expired in June 2011. He wanted extension of time to vacate the premises. He had kept the rent in arrears from October 2011. The landlady wanted the petition schedule building for her son Deepu to start a computer centre as he is educated and unemployed and he is depending on the petitioner for that purpose. Though she approached the tenant to vacate the premises on that ground, he did not vacate the premises. In spite of notice issued, he had not vacated and did not pay the arrears of rent. So the petitioner filed the petition for eviction on the ground of arrears of rent and bona fide need.

The revision petitioner/respondent before the court below entered appearance and contended that there was no rent in arrears. He denied the allegation that after the expiry of the lease in June 2011 he had agreed to vacate the premises. The allegation that rent from October 2011 is in arrears is also not correct. He had paid rent till December 2011 and she had refused the rent from January 2012. He is not a defaulter. Since she tried to vacate him forcibly, he filed O.S. No. 351 of 2012 before the Munsiff Court, Thiruvananthapuram against forceful eviction and it is thereafter that the present petition has been filed with a claim for bona fide need, which is not genuine. The son of the petitioner is conducting a textile business in Pothencode for the last two years and he has no idea to conduct any other business. He had also contended that he is eking out his livelihood from the business conducted in the petition schedule building and there are no other buildings available in the locality. He had also submitted that he had renewed the agreement from 17.10.2011. At that time, he had paid rent up to December 2011 and thereafter the rent was not received. It was necessary for renewing licence for sale of Diwali crackers that the agreement was executed. So he prayed for dismissal of the application.

The landlady filed amendment stating that she is not in possession of any other building suitable for this purpose. In order to prove the case of the landlady, the landlady herself was examined as P.W. 1 and her son was examined as P.W. 2. The Advocate Commissioner was examined as P.W. 3 and Exts. A1, A2, A3 series and C1 were marked on their side. CPWs. 1 to 3 were examined and Exts. B1 to B5 were marked on his side.

After considering the evidence on record, the rent control court came to the conclusion that there is no rent in arrears and the landlady is not entitled to get eviction under section 11(2)(b) of the Act. But the court below found that the need alleged by the landlady is genuine and bona fide and she is not in possession of any other building and the tenant is not entitled to get the benefit under the second proviso to section 11(3) of the Act and ordered eviction under section 11(3) of the Act.

Aggrieved by the same, the tenant filed R.C.A. No. 18 of 2014 before the Rent Control Appellate Authority, Thiruvananthapuram and the rent control appellate authority by the impugned judgment dated 22.9.2015 dismissed the appeal confirming the order of eviction passed under section 11(3) of the Act. Aggrieved by the same, the present revision has been filed by the revision petitioner/tenant before the court below under section 20 of the Act.

Heard Sri. V.P.K. Panicker, learned counsel appearing for the revision petitioner. Learned counsel appearing for the revision petitioner submitted that the rent control court as well as the appellate authority have not properly understood the implication of the first proviso to section 11(3) of the Act. There is a duty cast on the landlord to mention in the petition itself that there are no suitable buildings available in her possession and if any such building is available, they will have to provide special reasons for not occupying the same. It has not been done in this case. Further, the evidence of P.W. 2 will go to show that they are having two buildings adjacent to the petition schedule building and it is in the occupation of their employee. So the tenant had discharged his burden that they are in possession of the building. He has also submitted that the evidence of CP.W. 3 has not been properly appreciated regarding non-availability of building in the locality. Further the evidence also will go to show that P.W. 2 is doing other business and otherwise employed and there is no necessity for him to start any business. So according to him, the courts below were not justified in ordering eviction and the findings are perverse and illegal.

We have gone through the order of the rent control court and also the judgment of the rent control appellate authority and the necessary documents required for considering the revision at the stage of admission which were furnished by the learned counsel for the petitioner. The case of the landlady was that her son, P.W. 2 is without any employment and he wanted to start a computer centre in the petition schedule building. But in the counter statement filed by the tenant, there is no contention taken that they are in possession of any other vacant building which they can occupy for the intended purpose. It is true for the purpose of attracting the first proviso to section 11(3) of the Act, it must be established by the tenant that the landlady is in possession of any other vacant building of her own which is suitable for this purpose and then the landlady has to give special reasons for not occupying the same and unless special reasons are given to that effect, even if the bona fide need is found to be genuine, she is not entitled to get an order of eviction in her favour. In this case, there is no pleading to that effect in the counter statement. Even at the time when in the evidence it was brought out, P.W. 2 had deposed that they are not in possession of any building which is suitable for his purpose and that building is occupied by the employee and doing a barber shop in that building.

In order to attract the first proviso it must be proved or established or admitted that they were in vacant possession of the building. In this case even assuming that the landlady is owner of some other building if it is not in her vacant possession, then it cannot be said that she is in possession of suitable building for the purpose of conducting the business. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the bar under the first proviso to section 11(3) of the Act is not attracted and the concurrent findings of the courts below on this aspect do not call for any interference.

As regards the bona fide need is concerned, the need of the landlady was that her son, P.W. 2, is without any employment and he wanted to start a computer centre in the petition schedule building. This was denied by the tenant and alleged that he is conducting some business in Pothencode. It is true that P.W. 2 had admitted that two years prior to the filing of this application, he conducted a textile business in Pothencode but that business was closed down as it was in loss and thereafter he is without any employment and he wanted to start a computer centre. It is also true that he had stated that he had already purchased some computers and he was able to produce some bills but that was not produced. But later he had explained that he had purchased only second hand computers and he is not in a position to produce any bill for that purpose. Even assuming that no arrangements were made for the purpose of starting the business before getting the vacant building, it cannot be said that the need is not bona fide especially when he is without any employment now, starting a new business of his choice in the petition schedule building cannot be said to be without any bona fides unless any malice has been established by the tenant for raising such a claim by the landlady. But such an attempt was not proved by the tenant. Under the circumstances, the court below was perfectly justified in relying on the evidence of P.Ws. 1 and 2 and coming to the conclusion that the need alleged by the landlady is genuine and P.W. 2 is depending on the landlady for this purpose, who is none other than her son and that concurrent finding do not call for any interference.

As regards the second proviso protection is concerned, it is settled law that the burden is on the tenant to prove both the limbs of the second proviso in order to get the protection. In this case, evidence of P.W. 3 coupled with Ext. C1 will go show that there are vacant buildings available in the locality. It is true that C.P.W. 3 was examined for the purpose of proving that there is no other building in the locality but his evidence is not sufficient to come to the conclusion that buildings are not vacant and available in the locality. The tenant had not made any attempt to examine the owners of the building found to be vacant by the Commissioner in Ext. C1 to prove that those rooms are not available or intended to be let out to any tenant. So under the circumstances, the court below was perfectly justified in rejecting the evidence of C.P.W. 3 and coming to the conclusion that the tenant had failed to prove that there are no vacant building available in the locality for shifting his business so as to claim protection under section 11(3) of the Act and rightly declined that benefit to the tenant and ordered eviction under section 11(3) of the Act. The concurrent findings of the courts below on facts on the basis of evidence do not call for any interference invoking the power under section 20 of the Act. The revision lacks merit and the same is liable to be dismissed.

Before we dispose of the revision petition, the counsel for the revision petitioner sought a reasonable time to vacate the premises. Considering the circumstances, we feel that six months time can be granted to the revision petitioner to vacate the premises. So the revision petitioner is granted six months time from today to surrender vacant possession of the building on condition that he shall file an undertaking in the form of an affidavit before the rent control court or before the execution court if any execution petition is pending, that he will vacate the premises within the time provided by this court without any objection and on further condition that he will deposit the arrears of rent, if any, and also continue to pay the rent at the rate agreed between the parties till he vacate the premises. He shall further undertake that he will not induct strangers in the petition schedule building or alienate or sublet the building or commit any acts of waste therein. The undertaking as directed above shall be filed within a period of three weeks from today. If the undertaking is not filed within that time, then the revision petitioner is not entitled to the benefit of extension of time to surrender the building as directed by this court.

With the above direction and observation, this revision petition is dismissed.