Riyas vs Fousiya

Sophy Thomas, J.

The revision petitioner is the respondent/tenant in RCP No.89 of 2019 on the file of Rent Control Court, Vatakara. He is impugning the judgment of the Rent Control Appellate Authority, Vatakara, in RCA No.62 of 2021, by which the eviction ordered by the Rent Control Court in the RCP was confirmed.

The parties are referred hereinafter according to their status in the RCP. The landlord filed RCP No.89 of 2019, along with her husband, under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘The Act’), for evicting the respondent/tenant on bona fide need of her husband. According to the petitioners, the petition schedule shop rooms were leased out to the respondent, as per rent agreement dated 28.3.2017 for a monthly rent of Rs.3,000/-. The 2nd petitioner husband of the landlord returned from abroad after cancelling his Visa on 24.12.2017. He is having no source of income for his livelihood and he is in bona fide need of the petition schedule shop rooms to start a cafeteria there. They have no other shop rooms in their possession to start their business. The 2nd petitioner-husband is depending on the 1st petitioner, with regard to the petition schedule shop rooms. They further contended that the respondent is not doing any business in the petition schedule shop rooms and he is not depending upon the income derived from the business in the petition schedule rooms for his livelihood. Now the petition schedule rooms are used for parking motor vehicles. Moreover, other shop rooms are available in that locality, suitable for the respondent to shift his business.

The respondent/tenant disputed the ownership of the 1st petitioner as well as the tenancy arrangement between the 1st petitioner and the respondent. The bona fide need projected by the petitioners were also disputed by the respondent and according to him, the 2nd petitioner, who is the husband of the 1st petitioner, is having business abroad and also in Bangalore, and so his case that he is intending to start a cafeteria in the petition schedule rooms is not correct. Moreover, the petitioners are having vacant possession of several other shop rooms. The petition schedule shop rooms are now used by the respondent as a godown for his cement business, and he is depending upon the income earned form that business for his livelihood, and no other vacant shop rooms are available in that locality suitable to shift his godown.

PWs 1 and 2 were examined and Exts.A1 to A6 and C1 were marked from the side of the landlord and Exts.B1 to B3 were marked from the side of the tenant, before the trial court.

After analysing the facts and evidence, the learned Rent Control Court found that the bona fide need projected by the landlord for starting a cafeteria for her husband in the petition schedule shop rooms was bona fide, and the respondent did not adduce any evidence to prove that he was depending on the income from the business in the scheduled rooms, and no other suitable rooms are available in that locality to shift his business, so as to avail the benefit of the Second Proviso to Section 11(3) of the Act. So, eviction was ordered under Section 11(3) of the Act.

The tenant challenged the order of the Rent Control Court under Section 18 of the Act as RCA No.62 of 2021. The Appellate Authority also upheld the finding of the Rent Control Court, that the landlord was in bona fide need of the petition schedule shop rooms for starting a cafeteria for her husband, who had returned from abroad without any job or income. The Appellate Court also found that the respondent/tenant did not adduce any reliable evidence to show that the petition schedule shop rooms are used as a godown and he is depending on the income derived from the business conducted in that shop rooms, or to show that no other suitable rooms are available in that locality to shift his business. Finding that the tenant was not eligible to get the benefit of the Second Proviso to Section 11(3) of the Act, the Appellate Court confirmed the eviction order under Section 11(3) of the Act, by dismissing the appeal.

After suffering the concurrent orders of eviction under Section 11(3) of the Act, the tenant is before us with this Rent Control Revision.

Heard learned counsel Sri.K.K.Anil Raj, appearing for the revision petitioner at the admission stage itself.

We are called upon to find out whether there is any illegality or impropriety in the concurrent findings of the Rent Control Court as well as the Rent Control Appellate Authority ordering eviction under Section 11(3) of the Act.

Though the respondent/tenant was disputing the ownership of the landlord over the petition schedule rooms as well as the tenancy arrangements, learned counsel Sri.K.K.Anil Raj appearing for the revision petitioner submitted before us that he is not pressing that contention. Ext.A1 rent agreement as well as the pleadings of the tenant were sufficient to refute that challenge.

There is no dispute with regard to the fact that the 2nd petitioner is the husband of the landlord, for whom, the petition schedule rooms were needed to start a cafeteria. He himself was examined as PW2. According to him, he was employed abroad and he returned to his native place as he lost his job and now he has no job or income for his livelihood. So he wanted to start a cafeteria in the petition schedule rooms. The trial court as well as the Appellate Court found that his intention to start a cafeteria in petition schedule rooms was not a mere desire, and the need projected was a bona fide one.

The respondent/tenant invited our attention to the fact that earlier the landlord had filed RCP No.80 of 2013 for getting vacant possession of the petition schedule rooms for starting a supermarket. At that time, the landlord was in possession of three rooms. During that period the 2nd petitioner was employed abroad. That RCP was dismissed. The landlord subsequently rented out the three rooms which were in her possession. According to the tenant, if the landlord wanted rooms to start a cafeteria for her husband, the three rooms which were in her possession could have been utilised. But without utilising those rooms for starting the cafeteria, she rented out those rooms and thereafter, filed RCP No.89 of 2019 to evict the tenant, and it will show that the need projected by the landlord is not a bona fide one.

But the Rent Control Court as well as the Appellate Court concurrently found that though the intention of the landlord was to start a supermarket in five rooms, only three were in her possession and the two were in possession of the tenant, and so she filed RCP No.80 of 2013 for getting vacant possession of the two rooms possessed by the tenant. Since that RCP was dismissed, she let out the three rooms which were in her possession, as she could not materialise her desire to start a supermarket using five rooms.

Ext.A1 rent agreement is dated 28.03.2017 i.e. after dismissal of the earlier RCP. The husband of the landlord lost his job and his Visa was cancelled on 24.12.2017 and now he is permanently settled in his native place and so he wants to start a business on his own and that fact was not challenged by the respondent. The tenant has no case that, at present the landlord is in possession of any other vacant buildings for the purpose of starting a cafeteria for her husband. No evidence, whatsoever, has been adduced by the tenant to show that the landlord is in possession of any other building in that locality to start a business for her husband. No evidence is there from the part of the tenant to show that the need projected by the landlord is not a bona fide one.

Now coming to the benefit of the Second Proviso to Section 11(3) of the Act, undoubtedly, it is the tenant who has to prove both the limbs of that Proviso. The first limb says that he has to prove that he is mainly depending upon the income derived from the petition schedule building for his livelihood. According to the tenant, he is using the petition schedule shop rooms as godown for his cement business. But the evidence of PW2 coupled with Ext.C1 Commission Report will show that the rooms were not seen used as a cement godown, and only 5 sacks of granite pieces, 38 sacks of sand and 8 motorbikes were seen there. So much so, there is nothing to show that the respondent was using those rooms as godown for his cement business or to show that he was mainly depending on the income derived from the business in the schedule rooms for his livelihood.

Regarding the Second limb of Section 11(3) of Act, the tenant has to prove that no other suitable buildings are available in that locality to shift his business. For that also, no evidence was adduced from his side, except his pleadings in the counter that no suitable rooms are available in that locality. So the Rent Control Court as well as the Appellate Court rightly found that the tenant was not eligible to get the benefit of Second Proviso to Section 11(3) of the Act.

In the result, the Rent Control Revision is liable to dismissed, upholding the concurrent findings of the Rent Control Court as well as the Rent Control Appellate Authority, and the tenant has to surrender vacant possession of the petition schedule rooms under Section 11(3) of the Act.

Considering the facts and circumstances of this case, it is only 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 on or before 15.02.2023, unconditionally undertaking to vacate the tenanted premises within a period of six months from this day, and further that, he shall pay the arrears of rent, if any, within one month and continue to pay the monthly rent before the due dates. In case of default to comply with any of these conditions, the landlord would be free to initiate execution proceedings.

The pending Interlocutory Applications, if any, shall stand closed.