K.K.Sankaran vs Madhavi

Sophy Thomas, J.

The tenant is the revision petitioner and the landladies are the respondents. The revision petitioner is challenging the judgment of the Rent Control Appellate Authority, Vatakara, in RCA No.97 of 2010 ordering eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘The Act’).

The landladies are the joint owners of the petition schedule building and they filed RCP No. 51 of 2009 before the Rent Control Court, Vatakara, to evict the tenant under Sections 11(2)(b) and 11(3) of the Act. According to the landladies, they were in bona fide need of the petition schedule room for starting a tailoring and embroidery shop and moreover, the rent was in arrears from December, 2005. The tenant opposed that petition contending that there was no rent arrears and the need projected by the landladies was not bona fide.

The Rent Control Court examined PWs 1 and 2 and marked Exts.A1 and A2 from the side of the landladies and examined RWs 1 to 3 and marked Exts. B1 to B11 from the side of the tenant.

After analysing the facts and evidence, the Rent Control Court rejected the petition finding that there was no rent arrears, and the need projected by the landladies though bona fide, the tenant was entitled to get the benefit of the Second Proviso to Section 11(3) of the Act. The landladies preferred RCA No.97 of 2010 before the Rent Control Appellate Authority and that was also dismissed upholding the order of the Rent Control Court. The landladies preferred revision petition before this Court as Rent Control Revision No. 343 of 2013. That revision was allowed setting aside the judgment of the Rent Control Appellate Authority in RCA No.97 of 2010, and the case was remanded back to the Appellate Authority for considering afresh the entitlement of the landladies for an order of eviction under Section 11(3) of the Act. On remand, the Rent Control Appellate Authority reconsidered the issues afresh, and as per judgment dated 27.01.2022, allowed the appeal under Section 11(3) of the Act, directing the tenant to hand over vacant possession of the petition schedule building to the landladies within one month from the date of the order. The tenant is challenging the judgment of the Rent Control Appellate Authority in this revision.

Heard learned counsel Sri.R.Parthasarathy appearing for tenant and learned counsel Sri.K.K.Anilraj appearing for the landladies.

The main contention of the tenant is that the need projected by the landladies is not bona fide. To substantiate his case, he would say that earlier the landladies had filed RCP No.100 of 2006 for evicting the tenant under Section 11(3) of the Act, contending that they were in bona fide need of that building for starting a business for the husbands of the landladies 2 and 3. In fact, their husbands were working abroad and the Rent Control Court, realising the falsity of their claim, dismissed the Rent Control Petition. Though they filed RCA against that order, it was also dismissed. Since they could not succeed in the first round of litigation, changing the purpose of occupation into a tailoring and embroidery shop for themselves, they filed RCP No.51 of 2009.

The tenant sought the benefit of Second Proviso to Section 11(3) of the Act, saying that he was mainly depending upon the income from the business in the petition schedule room for his livelihood, and no other suitable rooms are available in that locality to shift his business. The Rent Control Court, though found that the need projected by the landladies was bona fide, the tenant was given the benefit of the Second Proviso to Section 11(3) of the Act. In RCA No. 97 of 2010, the Rent Control Appellate Authority also upheld that finding. So, there was concurrent findings by the Rent Control Court as well as the Appellate Court that he was eligible to get the benefit of the Second Proviso to Section 11(3) of the Act. According to him, in Rent Control Revision No.343 of 2013 filed by the landladies, the revisional court directed the Appellate Authority to answer whether the bona fide need projected by the landladies was true and genuine, and the concurrent findings as to the eligibility of the tenant under the Second Proviso to Section 11(3) of the Act, was never disturbed. So he would contend that even if the Rent Control Appellate Authority found bona fides from the part of the landladies after remand, that will not take away the eligibility of the tenant to avail the benefit of the Second Proviso to Section 11(3) of the Act. According to the tenant, even if the bona fide need projected by the landladies was found to be genuine, the Appellate Court ought not have allowed eviction under Section 11(3) of the Act, as the tenant was eligible to be protected under the Second Proviso to Section 11(3) of the Act.

The order of this Court in Rent Control Revision No. 343 of 2013 was handed over for our perusal by learned counsel for the revision petitioner. Paragraphs 19 and 20 of that order read as follows:

“19. In such circumstances, we have no option other than to set aside the judgment of the Rent Control Appellate Authority dated 13.12.2011 in RCA No.97 of 2010 and remand the matter to that Authority for considering afresh the entitlement of the landlords for an order of eviction under Section 11(3) of the Act.

In the result, the Rent Control Revision is allowed by setting aside the judgment dated 13.12.2011 of the Rent Control Appellate Authority in RCA No. 97 of 2010, insofar as the order of eviction sought for under Section 11(3) of the Act is concerned, and the Appellate Authority is directed to reconsider the entitlement of the landlords for an order of eviction under Section 11(3) of the Act and take an appropriate decision, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this order.”

The revisional court set aside the judgment of the Rent Control Appellate Authority in RCA No.97 of 2010 for considering afresh the entitlement of the landladies for an order of eviction under Section 11(3) of the Act. There is no reservation in that order regarding the protection given to the tenant under the Second Proviso to Section 11(3) of the Act from the Rent Control Court or the Appellate Authority. As far as a landlord is concerned, for getting eviction under Section 11(3) of the Act, he has to prove that he is in bona fide need of the tenanted premises for his own occupation or for the occupation of any member of his family dependent on him. Only when the landlord is able to prove that he is in bona fide need of the building, the question of eligibility of the tenant to get the protection envisaged under the Provisos attached to Section 11(3) of the Act comes into picture. When the revisional court set aside the judgment of the Rent Control Appellate Authority, it was set aside in its entirety, and the contention of the tenant that his eligibility to the protection under the Provisos to Section 11(3) of the Act was not disturbed, is not a sustainable argument in the eye of law. When the revisional court directed the Rent Control Appellate Authority to consider afresh the entitlement of the landlords for an order of eviction under Section 11(3) of the Act, it takes in within its scoop the bona fides of the need projected by the landlord as well as the bona fides of the claim for eviction as envisaged under Section 11(10) of the Act, tested against the protection given to the tenant under the Provisos to Section 11 (3) of the Act. The Rent Control Appellate Authority considered afresh the bona fides of the need projected by the landladies as well as the bona fides of their claim for eviction, and answered it in their favour. Then the Rent Control Appellate Authority examined in detail as to the eligibility of the tenant to get protection of the Provisos attached to Section 11(3) of the Act, and found that the tenant was not eligible to get the protection and hence allowed the appeal, directing the tenant to surrender vacant possession of the tenanted premises.

Now let us see whether there is any illegality or impropriety in the impugned order of the Rent Control Appellate Authority warranting interference.

The landladies are admitting the fact that earlier they had filed RCP No.100 of 2006 seeking eviction under Section 11(3) of the Act for the bona fide need of the husbands of landladies 2 and 3 and that was dismissed and appeal also was dismissed. But that does not mean that later, for their own need, they cannot seek eviction of the tenant. Now the need projected by the landladies is to start a tailoring and embroidery shop in the petition schedule building. According to them, each of them is getting only ⅓ rent of the petition schedule building and that is not sufficient for their livelihood. PW1 - the 2nd landlady has got training in tailoring and embroidery under PW2 and that fact is not disputed by the tenant. Even otherwise for starting a business by the landlord, the tenant cannot insist that the landlord might have sufficient experience in that field. The tenant contended that since the petition schedule room is situated near to the vegetable market, there is no scope for running a tailoring and embroidery shop in that room. It is the landlord who has to decide where and how he has to conduct the business, and the tenant cannot dictate terms to the landlord. In the case on hand, the tenant could not adduce any evidence to defeat the bona fide need projected by the landladies. It is to be noted that the bona fide need projected by the landladies was found in their favour by the Rent Control Court as well as the Appellate Court, and the tenant did not challenge that finding except in this revision.

Regarding the protection under the Provisos to Section 11(3) of the Act, the tenant, who was examined as RW1, categorically admitted that the landladies are not in possession of any other vacant rooms to start their proposed business. So they are not eligible for the protection under the First Proviso to Section 11(3) of the Act.

Coming to the Second Proviso also, it is the tenant, who has to prove both the limbs of that Proviso. Though the tenant was contending that he was mainly depending on the income derived from the business in the petition schedule room, the Appellate Authority found that Ext.B11 Books of Account produced by him, was not a reliable document, and it seemed to have been created for the purpose of the case. The tenant was not keeping Daybook and Ledger for his business, which were mandatory. Many statutory payments like licence fee, professional tax etc. could not find a place in the account book. The salary paid to the employee was also not entered in that book. No accounts were there in that book, prior to 2009 or after 2009. For all these reasons, the Appellate Authority was justified in not accepting that document as a reliable one. Thus the tenant could not prove that he was mainly depending upon the income from the business in the schedule building for his livelihood.

Regarding non-availability of suitable rooms in that locality to shift his business, the Appellate Authority rightly found that it was the burden of the tenant and not that of the landladies. But the Rent Control Court seems to have been under the impression that the landlord has to prove that other suitable rooms were available in that locality for the tenant to shift his business. The tenant admitted before court during cross-examination that he did not conduct any enquiry as to find out whether suitable rooms were available in that locality to shift his business. When he was specifically asked about Room Nos.658 to 672 in City Tower, which were lying vacant according to the landlord, he answered that he did not make any enquiry. RW2, who was the President of Vyapari Vvyavasaya Samiti, though deposed before court that no vacant shop rooms were available in that locality, he also did not make any enquiries regarding the vacant rooms available in that locality, especially in City Tower. The tenant is relying on the testimony of PW1 that City Tower is almost one kilometre away from the petition schedule room, to say that the rooms in that building are not suitable for his business. No commission was taken out by the tenant to show that no vacant rooms are available in that locality to shift his business. So, the tenant did not discharge his burden to claim the benefit of the Second Proviso to Section 11(3) of the Act.

We could not find any illegality, irregularity or impropriety in the impugned judgment of the Rent Control Appellate Authority ordering eviction under Section 11(3) of the Act.

Considering  the  facts  and  circumstances  of  this case, we  think  it  just  and  reasonable to grant six months’ time to the revision petitioner/tenant to vacate the  tenanted  premises  on condition that, he shall file  an affidavit of undertaking before the Rent  Control  Court  within  15 days  from the date of receipt of copy of this order, unconditionally undertaking to vacate the  tenanted premises  within  a  period  of  six  months from  this  day,  and  on further condition that, he shall pay the arrears of rent, if any, within one month and continue to pay the monthly rent before the due dates till vacant possession is handed over to the landladies. In case of default to comply with any of these conditions, the landladies would be free to initiate execution proceedings.

The revision petition is dismissed accordingly and the pending Interlocutory Applications, if any, shall stand closed.