Panhattukandi Meethal Sarasa vs Makkoottathil Nafeesa Umma

K. Ramakrishnan, J.—1. The tenant/respondent in R.C.P. No. 47 of 2012 on the file of the Rent Control Court, Koyilandy is the revision petitioner herein. The petition was filed by the landlady for eviction of the respondent from the petition schedule building on the ground of arrears of rent, bona fide need and cessation of occupation under sections 11(2)(b), 11(3) and 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965, hereinafter referred to as ''the Act'' for short. The case of the landlady in the petition was that the building was let out to the respondent as per agreement dated 20.3.2009 on a monthly rent of Rs. 750/- and the present rent of the building is Rs. 1,050/- per month. She had kept the rent in arrears and she ceased to occupy the building for the last several months without any reasonable cause and on account of the non user, damage has been caused to the building. The petitioner''s daughter-in-law is without any job or income and she wants to start a stationery business to eke out her livelihood. She is depending on the petitioner for this purpose and no other suitable buildings are available in her possession for that purpose. The respondent is not eking out her livelihood from the income derived from the business conducted in the petition schedule building and there are other vacant buildings available in the locality. So, the landlady filed the application for eviction under sections 11(2)(b), 11(3) and 11(4)(v) of the Act.

The revision petitioner/respondent in the court below appeared and filed counter statement contending that the lease was taken from the father of the landlady by her husband and he was conducting business in the premises till his death on 30.7.2008. Thereafter a rent deed was executed in her name. The landlady demanded Rs. 50,000/- as advance after the death of the husband of the respondent. She paid the amount and thereafter the rent deed was executed. The allegation that the rent is in arrears is not correct. She has been paying the rent regularly. The allegation that she is not occupying the building without any reasonable cause for several months is not correct. The bona fide need alleged is also not correct. The petitioner is in possession of other buildings and there is no necessity for the daughter-in-law of the landlady to start any business. It is only as a ruse to evict the tenant that the claim has been made. She has also contended that she is depending on the income derived from the business conducted in the petition schedule building and there are no other buildings available in the locality to shift the existing business. She prayed for dismissal of the application.

The person on whose behalf the bona fide need was put up, was examined as P.W. 1 and Exts. A1 to A4 were marked on the side of the landlady. The respondent/tenant was examined as R.W. 1 and Exts. B1 to B6 were marked on her side. After considering the evidence on record, the court below found that the petitioner is not entitled to get eviction under section 11(2)(b) of the Act and denied the claim for eviction on that ground. But the court below found that the landlady is entitled to get an order of eviction under sections 11(3) and 11(4)(v) of the Act and passed an order of eviction on these grounds. Aggrieved by the same, the tenant filed R.C.A. No. 36 of 2014 before the Rent Control Appellate Authority, Kozhikode which was made over to the I Addl. District Court, Kozhikode for disposal and the appellate authority found that the landlady is not entitled to get an order of eviction under section 11(4)(v) of the Act and denied eviction on that ground, but confirmed the order of eviction passed under section 11(3) of the Act. Aggrieved by the same, the present revision petition has been filed by the revision petitioner/tenant in the court below.

We heard Shri P.R. Sreejith, learned counsel appearing for the revision petitioner and Shri Balaprasannan B., learned counsel appearing for the respondent.

Learned counsel appearing for the revision petitioner submitted that P.W. 1 is residing at Farooq which is far away from the petition schedule building and there is no possibility for her to conduct the business as claimed by her. Further, there is nothing on record to show that she is depending on the landlady for this purpose. Other rooms fell vacant and those were not occupied by the petitioner. That shows that the need alleged is not bona fide. Further, the courts below have not considered the fact that after the death of the husband of the revision petitioner, she is conducting the business and she is eking out her livelihood from the income derived from the business being conducted in the petition schedule building and there are not other suitable buildings available in the locality to shift her business. So, the courts below were not justified in ordering eviction under section 11(3) of the Act.

Learned counsel for the respondent submitted that the courts below have considered the evidence and rightly came to the conclusion that the need alleged is bona fide and the tenant is not entitled to get the proviso protection and rightly ordered eviction under section 11(3) of the Act and the concurrent findings on facts on this aspect do not call for any interference.

The case of the landlady in the petition for eviction was that she requires the petition schedule building for the purpose of conducting a stationery business for her daughter-in-law who is depending on her. The need alleged by the petitioner was denied by the revision petitioner and also she claimed the protection under the proviso to section 11(3) of the Act. In order to prove the case of the landlady, the daughter-in-law of the petitioner on whose behalf the bona fide need was put forward, was examined as P.W. 1 and she had deposed in her chief examination that she intends to start a stationery shop for earning her livelihood in the petition schedule building. Though she was cross examined at length, nothing was brought out to discredit her testimony on this aspect. It is settled law that it is not the financial dependency that has to be considered for the purpose of considering the question of bona fide need of the landlord for his occupation or for the occupation of a member of his family. The daughter-in-law will also come under the definition of ''member of the family'' on whose behalf a petition for eviction can be maintained by the landlord. There is nothing on record to show that P.W. 1 or her husband was having any other building of their own for starting the intended business. Merely because they are residing at Farooq is not a ground to deny eviction and it is not difficult to come to Farooq and conduct the business, as facilities are available now a days for covering the distance and look after the business. It was admitted by R.W. 1 that the building in the upstair portion is not suitable for conducting stationery business as well. Except the room in the upstair portion, there is no case for the revision petitioner that the landlady is having any other suitable building for that purpose. So, the courts below were perfectly justified in coming to the conclusion that the need alleged by the landlady is bona fide and the claim for eviction is not hit by the first proviso to section 11(3) of the Act.

It is settled law that even if the landlady is able to prove the bona fide need, if the tenant is able to establish that she is solely depending on the income derived from the business conducted in the petition schedule building and there are no other suitable buildings available in the locality for shifting her business, then the court is not expected to pass an order of eviction in favour of the landlady. It is also settled law that both the limbs of the second proviso to section 11(3) of the Act have to be proved by the tenant. If any one of the limbs is not proved, then she is not entitled to get the benefit under that proviso. In this case, though R.W. 1 had stated that she is eking out her livelihood from the income derived from the business carried on in the petition schedule building, she has not produced any document to prove the said fact. She did not even produce the licence taken in her name as well. Further, the evidence of P.W. 1 will go to show that there are other buildings available in the locality to shift her business. The evidence of R.W. 1 will also go to show that she did not make any earnest efforts to make any enquiry regarding the availability of other vacant buildings in the locality. So, the courts below were perfectly justified in coming to the conclusion that the tenant had failed to prove the ingredients of the second proviso to section 11(3) of the Act so as to claim the benefit under that proviso and rightly rejected her claim and ordered eviction under section 11(3) of the Act. The concurrent findings of the courts below on facts on this aspect do not call for any interference at the hands of this court under section 20 of the Act.

Before disposing of the revision petition, learned counsel for the revision petitioner submitted that the revision petitioner wants one year''s time to vacate the premises. This was opposed by the learned counsel for the respondent. However, considering the fact that the tenant is conducting business after the death of her husband and she is a widow, we feel that nine months'' time can be granted to her to vacate the premises. So, nine months'' time from today is granted to the revision petitioner to surrender vacant possession of the petition schedule building on condition that the revision petitioner shall deposit the entire arrears of rent within one month from today and continue to pay the rent thereafter at the rate agreed between the parties till surrender possession of the building and the petitioner is also directed to 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, undertaking that she will surrender possession of the petition schedule building without any objection on the expiry of the period fixed by this court and she will not sub let or alienate the building or induct strangers in the building during that period. She is directed to file the undertaking within three weeks from today. If the petitioner did not file the undertaking as stated above, then the benefit of time granted for surrender of the building will not be available to her.

With the above directions and observations, the revision petition is dismissed. The parties are directed to bear their respective costs in the revision petition.