Pandan Sajeevan vs M.K. Padmavathi

K. Ramakrishnan, J.—1. The tenant in R.C.P. No. 81 of 2010 on the file of the Rent Control Court, Kannur is the revision petitioner herein. The respondent herein is the landlady of the petition schedule building. The petition was filed by the landlady for eviction of the petition schedule building from the possession of the tenant under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as ''the Act'' for short. The allegation was that the petition schedule building belongs to the petitioner and others and she was managing the property on behalf of the other co-owners.

The tenant took the petition schedule building on lease as per the rent deed dated 4.1.1991 on a monthly rent of Rs. 50/-. The landlady bonafide requires the petition schedule building to start an agency business by the co-owners. The petition schedule building and the adjacent room are required for conducting the business in agency for the son of the petitioner as well as the children of the petitioner''s husband''s brother''s children Harikumar and Sreekumar. They agreed to take initiative for forming a partnership concern to augment the income of the family and the co-owners. Though the respondent herein requested the revision petitioner to vacate the premises, he did not concede for the same. There is no other building available in her possession for that purpose and there are suitable buildings available in the locality for shifting the business of the revision petitioner. So, the landlady had no other option except to file an application for eviction under section 11(3) of the Act.

The revision petitioner who was the respondent in the rent control court, entered appearance and filed a counter statement admitting the tenancy and also the rate of rent. He also contended that rent upto December 2009 was paid. There is no bonafide need for the petitioner. The petitioner is a bank employee and she cannot conduct any agency business. She is not having any knowledge about running such business. She is financially sound and is not depending upon any such business for augmenting income for her. Her intention is only to sell the property after evicting the tenant. The revision petitioner is depending for his livelihood on the income derived from the business being carried on in the petition schedule building and there are no suitable buildings available in the locality to shift his business. So, he prayed for dismissal of the application.

The son of the landlady was examined as PW1 and Exts. A1 to A6 and C1 and C1(a) were marked on the side of the landlady. The petitioner herein was examined as RW1 and Exts.B1 to B3 were marked on the side of the tenant.

After considering the evidence on record, the rent control court found that the need alleged by the landlady is bonafide and the revision petitioner is not entitled to get the second proviso protection and allowed the application under section 11(3) of the Act. Dissatisfied with the order of eviction passed by the rent control court, the tenant filed R.C.A. No. 166 of 2012 before the Rent Control Appellate Authority, Thalassery which was made over to the Additional District Court - I, Thalassery for disposal. The Additional District Judge by judgment dated 9.7.2015 dismissed the appeal confirming the order of eviction passed by the rent control court. Aggrieved by the same, the present revision petition has been filed by the tenant under section 20 of the Act.

Heard Shri V. Ramkumar Nambiar, learned counsel for the revision petitioner and Shri Abraham K. John, learned counsel for the respondent.

Learned counsel for the revision petitioner submitted that the rent control court and the appellate authority have not properly appreciated the evidence and the evidence of PW1 is not sufficient to prove the bonafides, as the need alleged is for others as well. Further, no suitable buildings are available in the locality. Learned counsel also submitted that if, for any reason this court is not inclined to interfere with the order of eviction, six months time may be granted to the revision petition for vacating the petition schedule premises.

On the other hand, learned counsel for the respondent submitted that the concurrent findings of the courts below need not require any interference under section 20 of the Act.

The case of the respondent as landlady before the rent control court was that the petition schedule building belongs to her and other co-owners and the son of the landlady along with children of other co-owners jointly want to start a partnership business in agency in the petition schedule building and other neighbouring building for which already steps have been taken for evicting the other tenants. Though the tenant was approached for that purpose, he did not surrender possession of the building. So, the landlady was compelled to file the application for eviction on the ground of bonafide need. The need alleged was denied by the tenant.

The son of the petitioner/landlady was examined before the rent control court as PW1. He deposed about his intention to start a business in agency along with his cousins, in the petition schedule building. It has also come out in evidence that in order to get eviction of the neighbouring building R.C.P. No. 146 of 2010 was filed and already eviction was ordered in that case. E.P. No. 303 of 2011 was filed and the order was got executed and that the building was obtained as evidenced by Ext. A2 order. So, it is clear from this that the landlady requires the petition schedule building also and only after getting the petition schedule building they can start the intended business. Though PW1 was cross examined at length, nothing was brought out to discredit his evidence on these aspects. The fact that he has no prior experience is not a ground to deny eviction. If such a pedantic attitude is taken, it is not possible to promote new entrepreneurs to come to the field of business. So, the courts below were perfectly justified in coming to the conclusion that the need alleged is bonafide. Further, Ext. A6 will go to show that there are other buildings available in the locality. When RW1 was examined, he has no case that he has made any enquiries regarding the same. The burden is on the tenant to prove the two limbs of the second proviso to section 11(3) of the Act and if any one of the limbs is not proved, then he is not entitled to get the benefit of the second proviso protection. So, the courts below were perfectly justified in denying the second proviso protection to the tenant. The tenant had no case that the landlady has got any other building in her possession for her purpose. So, the courts below were perfectly justified in ordering eviction under section 11(3) of the Act and the concurrent findings of fact by the courts below on this aspect do not call for any interference.

Considering the fact that the revision petitioner conducting business since 1991 onwards and he may require some time for shifting his business, we feel that six months time from today can be granted to the revision petitioner to surrender vacant possession of the petition schedule building. So, the revision petitioner is granted six months time from today to vacate the petition schedule building. He shall surrender vacant possession of the petition schedule building on or before 15.9.2016 and time will be granted 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, within one month and also continue to pay the rent at the rate agreed between the parties till he vacate the premises as directed. He shall further undertake that he will not induct strangers in the petition schedule building or alienate or sublet or commit any act of waste therein. The undertaking shall be filed within a period of three weeks from today. If the undertaking is not filed within that time, then the petitioner is not entitled to the benefit of extension of time to surrender the building as directed by this court.

The revision petition is dismissed with the above directions and observations.