K.K. Abdul Rasheed vs P.T.P. Kunhipathumma

K. Ramakrishnan, J.—1. The tenant in R.C.P. No. 128 of 2010 on the file of the Rent Control Court, Kannur is the revision petitioner in R.C.R. No. 44 of 2016, while the legal representatives of the original tenant in R.C.P. No. 124 of 2010 on the file of the same court are the revision petitioners in R.C.R. No. 45 of 2016. The case of the landlord in both the applications was that the buildings were let out to the tenants which is part of line rooms situate in the downstair portion of the building and the tenants have kept the rent in arrears and bona fide requires both rooms for the occupation of her son to start a parallel college-cum-tuition centre.

In R.C.P. No. 124 of 2010, the building number is KP VII/489 and it was let out to the tenant as per lease agreement dated 23.7.1986 on a monthly rent of Rs. 225/-. Subsequently, the rent has been enhanced to Rs. 475/-. He has kept the rent in arrears from March 2008 onwards. There are five rooms in the downstair including a staircase room. The petitioner''s son P.T.P. Muhammed Muneeb had completed his B.Tech. course and he has no job or occupation and he is solely depending on his mother for his livelihood and he intended to start a parallel college-cum-tuition centre in the petition schedule building to eke out his livelihood for which he requires all the five rooms in the ground floor of the said building. Over and above the above said five room, there is a small single room which is not sufficient to conduct the aforesaid business. The petitioner sent a notice seeking vacant possession of the building but the tenant had not vacated the premises.

R.C.P. No. 128 of 2010 relates to building No. KP VII/487. The room was let out to the tenant as per agreement dated 15.9.1992. The monthly rent of the building was fixed as Rs. 175/-. It has been subsequently enhanced and the present rent is Rs. 250/- per month. He had kept the rent in arrears since March 2008. Though a notice has been issued, he did not pay the rent and did not vacate the premises. No other suitable buildings are available in the possession of the landlady for providing the same to her son for starting the intended business. So the petitioner filed applications for eviction as R.C.P. No. 128 of 2010 and R.C.P. No. 124 of 2010 on the above grounds.

The tenants entered appearance and filed separate counters in each petition admitting the tenancy but denying the bona fide need. They have contended that he is a B.Tech. graduate and there is no possibility for him to start a parallel college-cum-tuition centre in the petition schedule building as he is likely to get employment abroad. Further, the landlady is in possession of rooms in the upstairs which can be used for the intended purpose. So the need alleged is not bona fide but it is only a ruse to evict the tenants from the building. They have also contended that they are eking out their livelihood from the business conducted in the respective buildings and there are no suitable buildings available in the locality. So they prayed for dismissal of the applications.

A joint trial was allowed as per order in I.A. No. 3845 of 2010 and evidence was recorded in R.C.P. No. 124 of 2010. The person on whose behalf the bona fide need alleged, was examined as P.W. 1 and Exts. A1 to A14 were marked on the side of the landlady. Both the tenants were examined as R.Ws. 1 and 2 and one witness was examined as R.W. 3 and Exts. B1 to B5 were marked on their side. After considering the evidence on record, the court below found that the landlady is not entitled to get eviction under section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act" for short) and rejected the application on that ground. But the rent control court found that the bona fide need alleged by the landlady is genuine and the tenants are not entitled to get the proviso protection and allowed the applications under section 11(3) of the Act.

Aggrieved by the same, the tenant in R.C.P. No. 124 of 2010 preferred R.C.A. No. 205 of 2011 and the tenant in R.C.P. No. 128 of 2010 preferred R.C.A. No. 207 of 2011 before the Rent Control Appellate Authority, Thalassery, which were made over to the IVth Additional District Court, Thalassery. During the pendency of the appeal, the original tenant/appellant died and his legal heirs were impleaded as additional appellants in R.C.A. No. 205 of 2011. The rent control appellate authority, by a common judgment, dismissed the appeals confirming the order of eviction passed by the rent control court under section 11(3) of the Act. Aggrieved by the same, the above two revisions have been filed by the respective tenants. Since both these revisions arose out of a common judgment, this court felt that the same can be disposed of by a common judgment.

Heard Sri. K.R. Avinash, learned counsel appearing for the revision petitioners. The learned counsel appearing for the revision petitioners submitted that the evidence of R.W. 3 and Ext. B2 photograph produced will go to show that there was a board hanged in the building intended to be let out with the phone number of one Ummer who is the uncle of P.W. 1 who is looking after the affairs of the building on behalf of the landlady. Further, the documents produced namely Ext. B1 will go to show that there are three vacant rooms in the upstairs, which can be used by the landlady for the intended purpose and no special reason has been given for not occupying the same. The court below had wrongly placed the burden on the tenants to prove that those buildings are vacant by taking out a commission. In fact, under the first proviso to section 11(1) of the Act the burden is on the landlord to give special reasons for not occupying the building in their possession and as such the courts below were not justified in ordering eviction under section 11(3) of the Act. Further the tenants have stated that there are no other buildings available in the locality and also they have contended that they are eking out their livelihood on the income derived from the business conducted in the petition schedule building and as such, they are entitled to get protection under the second proviso to section 11(3) of the Act which has not been properly appreciated by the courts below. So according to the learned counsel, the courts below were not justified in allowing the applications under section 11(3) of the Act.

We have perused the common order of the rent control court and also the common judgment of the appellate authority and also perused copies of the documents provided at the time of hearing by the learned counsel for the revision petitioners. It is seen from the rent control petition that it was specifically mentioned that the landlady''s son, P.W. 1, is a B.Tech. graduate and he is without any employment and he wanted to start a parallel college-cum-tuition centre in the petition schedule building for which they require all the five rooms in the ground floor. So it is specifically mentioned in the petition itself that they wanted to start the business in the ground floor and all the five rooms in the ground floor are required for that purpose. Further, in order to prove this case, P.W. 1 was examined and he had deposed that he wanted to start a business and he has no intention to go abroad for doing any employment. There is no case for the tenants that he has got any other employment or occupation or other income and he is not depending on the mother for this purpose. The contention of an unemployed youth, who wants to start a parallel college-cum-tuition centre to settle in his life, cannot be said to be an irrational desire and the claim cannot be said to be not bona fide as well. The desire of the mother to provide accommodation for that purpose is also a natural corollary to supplement the need of the son to settle in life and that need cannot be said to be genuine unless oblique motive is established by the tenant. No such evidence adduced on the side of the tenants in these cases. Under the circumstances, the court below was perfectly justified in coming to the conclusion that the need alleged by the landlady is genuine.

Under the first proviso to section 11(3) of the Act, it is stated that if the landlord is in possession of other rooms and if no special reason is given for not occupying those rooms, then no order of eviction can be passed under section 11(3) of the Act. The second proviso to section 11(3) of the Act says that even if the court found that the need alleged by the landlord is genuine, if the tenants are able to establish that they are eking out their livelihood from the income derived from the business conducted in the petition schedule building and there are no other buildings available in the locality for shifting that business, then no order of eviction can be passed under section 11(3) of the Act. In both cases, the initial burden is on the tenant to prove the ingredient and then only the burden shifts to the landlord.

As regards the first proviso is concerned, the revision petitioners rely on Ext. B1 which shows that there are three rooms vacant in the upstairs portion. They also rely on Ext. B2 photograph and the evidence of R.W. 3 for this purpose. Evidence of R.W. 3 will go to show that he did not remember as to when the photograph was taken and it is also stated by him that it was taken at the request of R.W. 2 whom he knew for more than 5 to 6 years. Under the circumstances, the courts below were perfectly justified in not relying on Ext. B2 photograph and the evidence of R.W. 3 to come to the conclusion that vacant rooms are available in the premises. It is true that P.W. 1 had admitted that earlier such a board was hanged in the premises and the person mentioned in that board is none other than his uncle. But that does not mean that even at the time when the applications were filed, the rooms were vacant as claimed by the tenants. Further P.W. 1 had categorically stated that out of the three rooms in the upstairs, one room is in the possession of a laboratory and the other room is in the possession of one Rashid and the third room is in the possession of a sand owner who is conducting business therein. No attempt was made on the side of the respondents to disprove this fact by taking out a commission to show that those rooms are still vacant and what is stated by P.W. 1 is not true. P.W. 1 had asserted that no vacant rooms are available in their possession. Even assuming that upstair rooms are vacant, the evidence of P.W. 1 will go to show that he wants to start a parallel college-cum-tuition centre in the downstair portion which will be convenient for the students and also for them to conduct the same. They have given special reasons for selecting the downstair portion of the building for that purpose. It is settled law that the tenant cannot dictate the landlord from where they have to conduct the intended business. It is for the landlord to take the choice of the building for conducting the intended business. Under such circumstances, the courts below were perfectly justified in coming to the conclusion that the tenants had failed to prove that upstair building is vacant so as to attract the bar under the first proviso to section 11(3) of the Act.

As regards the second proviso is concerned, except the interested testimonies of R.Ws. 1 and 2, there is no other documentary evidence produced by them to prove that the income derived from the business in the petition schedule building is their main income. Further, the evidence of P.W. 1 will go to show that the buildings belonging to one Aboobacker Haji are vacant and available for rent. The evidence of R.Ws. 1 and 2 will go to show that they did not make any enquiry about the same. It is settled law that the burden is on the tenant to prove both the limbs of the second proviso to section 11(3) of the Act to get protection under that proviso. If they failed to prove anyone of the limbs, then they are not entitled to get the benefit. So the courts below were perfectly justified in coming to the conclusion that the tenants have failed to prove that they are entitled to get protection under the second proviso to section 11(3) of the Act and rightly ordered eviction under section 11(3) of the Act. We do not find any reason to interfere with the concurrent findings of the courts below entered on facts and there is no illegality committed by the courts below in arriving such a conclusion as well invoking the power under section 20 of the Act.

Before we dispose of the revision petitions, the counsel for the revision petitioners sought six months time to vacate the premises. Considering the nature of the business conducted by the petitioners in the buildings, we feel that the time sought for appears to be reasonable. So the revision petitioners are granted six months time from today to surrender vacant possession of the buildings on condition that they shall file an undertaking in the form of an affidavit before the rent control court or before the execution court if any application for execution is pending, that they will vacate the premises within the time provided by this court without any objection and on further condition that they will deposit the arrears of rent, if any, and also continue to pay the rent at the rate agreed between the parties till they vacate the premises. They shall further undertake that they 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 petitioners are not entitled to the benefit of extension of time to surrender the building as directed by this court.

With the above direction and observation, these revision petitions are dismissed.