M.P.Muraleedharan vs Mohanlal K.K

Mohammed Nias C.P., J

The revision petitioner is the tenant, aggrieved by the judgment of the appellate authority (Addl. District Judge-1) Kalpetta, Wayanad in RCA No.2 of 2021 dated 27.06.2023, that confirmed the order passed in RCP No.16 of 2015 dated 31.01.2021 by the Rent Controller (Munsiff-Magistrate).

The respondent herein, the landlord, filed the rent control petition seeking eviction under Sections 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The rent control petition was allowed on 31.1.2018 under Section 11(3) of the Act while declining eviction under Section 11(4)(ii) of the Act. The tenant challenged the said order in appeal, and the appellate authority, by order dated 29.1.2020, allowed the appeal preferred by the tenant and remitted the case back to the rent controller for fresh consideration as regards eviction under Section 11(3) of the Act. As stated earlier, the landlord claimed eviction under Section 11(3), contending that the petition schedule shoproom is bonafide required for him to start a business in hardware items. After remand, the trial court reconsidered the case and ordered eviction under Section 11(3) of the Act, which was impugned in RCA No.2 of 2021 before the appellate authority. After a re-appreciation of the matter, the appellate authority confirmed the order of eviction passed by the rent control court, challenging which this revision is preferred. The eviction under Section 11(3) alone remains for consideration as the landlord had not challenged the rent control court's order declining eviction, and the said finding has become final.

Though the tenant contended that the landlord had other buildings, there was no evidence before the courts below that any of those rooms were vacant. Further, the evidence of the tenant as RW1 suggested that he was not sure as to whether the landlord was preparing to start a hardware business, and his contention that the landlord wanted to evict him and give the room for higher rent was also an information she got from somebody else which can only be treated as hearsay. The rent control court, after a consideration of the evidence, found that the need projected was bonafide. The tenant contended that Exs.B1 to B4 were documents that proved that there were rooms in the possession of the landlord that were vacant, and therefore, the claim of the landlord is hit by the first proviso to section 11(3) of the Act. The building tax assessment register, Ext.B2, showed no occupants in rooms Nos. 237 to 246 of the Kalpetta Municipality belonging to the landlord. The appellate court found that the said document cannot be treated as one that proves that there was no occupation of the building as it only showed that no trade licence was issued with respect to the said rooms. The appellate court also concurred with the trial court's finding that no Commission for local inspection was taken out by the tenant, which could have proved the existence of the vacant rooms. We find the approach adopted by both the courts to be right as the tenant had the opportunity to adduce the best evidence possible, and not having done; he cannot be said to have proved the ingredients of the first proviso to Section 11(3) of the Act. The tenant had also argued that the electricity bills also showed very low readings, which also cannot lead to an inference that the rooms are vacant. Even going by the evidence of RW2, the reading can be low for multiple reasons. These findings of the courts below call for no interference, and we uphold the findings of the authorities below that the tenant is not entitled to the benefit of the first proviso to Section 11(3) of the Act. As regards the benefit of the second proviso, no evidence was adduced by the tenant to show that he was earning his livelihood from the income derived from the business from the petition schedule room. It was the duty of the tenant to prove both the limbs of the second proviso. The tenant adduced no evidence to show his income from the business, which is carried on in the scheduled premise when it has come out in evidence that he had another business of a dealership in two-wheelers at Kannur and therefore he could have easily proved his main income with documents. Thus, the tenant was not entitled to the protection of the second proviso. We find that the authorities below had considered the oral and documentary evidence in the right perspective to arrive at the conclusions. We do not think that the orders impugned are illegal, irregular, or improper, warranting interference in our revisional jurisdiction under Section 20 of the Act. In the result, the revision petition is dismissed.

At this juncture, the learned counsel for the revision petitioner sought time to vacate the premises.

Having considered the rival submissions and taking into account the facts and circumstances of the case, we deem it appropriate to grant six months' time, subject to the following conditions:

“ (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule building to the petitioner-landlord within six months' from the date of this order and that, they shall not induct third parties into possession of the petition schedule building, and further they shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities;

(ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default;

(iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled automatically, and the landlord will be at liberty to proceed with the execution of the order of eviction. ”