Thattankandil Baburaj vs K.Vasantha

P.B.Suresh Kumar, J.

The tenant in a proceedings for eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) has come up in this revision petition challenging the order of eviction passed against him as also the judgment affirming the same in appeal.

The subject matter of the proceedings is a premises taken on lease by the tenant from the landlady for conducting jewellery business. There are a few other rooms as well in the building of which the tenanted premises is a part. It was alleged by the landlady in the eviction petition that the tenant is not paying rent from the year 2012 onwards and that she needs the premises for starting a ladies tailoring shop. It is stated in the eviction petition that the landlady does not have in her possession any other premises where she could conduct the proposed business. It is also stated by the landlady in the eviction petition that her son who is also a co-owner of the premises, is doing stationery business in the only vacant premises in her possession in the building. It is on the aforesaid basis that the landlady sought eviction of the tenant under Sections 11(2)(b) and 11(3) of the Act. The tenant raised objections in the proceedings contending, among others, that rent is not in arrears and that the need set out by the landlady for eviction is not bona fide. According to the tenant, the landlady has in her possession other vacant premises, if at all she wants to set up a ladies tailoring shop and that she does not have any experience in the ladies tailoring business.

The Rent Control Court repelled the contentions of the tenant and ordered eviction under both heads, holding that the rent of the premises is in arrears; that the need set out by the landlady is bona fide and that the landlady is not in possession of any other premises where she could carry on the proposed business. The tenant challenged the decision of the Rent Control Court in appeal. After the disposal of the eviction petition, the landlady instituted a proceedings for eviction of another tenant in the very same building as R.C.P No.77 of 2016 for starting a DTP Computer centre for her son. A copy of the eviction petition in R.C.P No.77 of 2016 which was produced by the tenant in the appeal was accepted in evidence by the Appellate Authority as Ext.B5. It is also stated by the landlady in the eviction petition in R.C.P No.77 of 2016 that in one of the rooms in the same building, she is conducting stationery and cool drinks business. On the basis of the said averment, it is seen that the tenant has argued before the Appellate Authority that the case set out by the landlady that she has no avocation and that she therefore needs the premises for conducting ladies tailoring shop, cannot be accepted as a bona fide need. The Appellate Authority affirmed the decision of the Rent Control Court, rejecting the said contention. As noted, the tenant is aggrieved by the concurrent decisions of the authorities below.

Heard the learned counsel for the tenant as also the learned counsel for the landlady.

The learned counsel for the tenant took us through the averments in the eviction petition in R.C.P No.77 of 2016 as also the averments in the eviction petition from which the revision petition arises and contended persuasively that the averments in the eviction petitions are mutually destructive and the authorities below ought to have, therefore, held that the claim of the landlady that she needs the premises for setting up a ladies tailoring business is not bona fide. It was also argued by the learned counsel, placing reliance on the decision of the Apex Court in Hasmat Rai v. Raghunath Prasad, (1981) 3 SCC 103 that in order to sustain a claim for eviction on the ground of bona fide need, the requirement must continue throughout the progress of the proceedings and must exist on the date of passing of the decree and in the case on hand, the averments in the eviction petition, R.C.P No.77 of 2016 would show that the requirement of the landlady does not exist.

We have examined the contention raised by the learned counsel for the tenant.

Before proceeding to deal with the argument advanced by the learned counsel for the tenant, it is necessary to remind ourselves as to the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under Section 20 of the Act is only to ensure that the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, re-appreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the findings can be said to be either erroneous or perverse. It has been held by the Apex Court in Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse, warranting correction under Section 20 of the Act.

Let us consider the argument advanced by the learned counsel for the tenant keeping in mind the principles aforesaid. True, it is stated by the landlady in the eviction petition that she does not have at present any avocation; that the one vacant room which is in her possession is used by her son for conducting stationery business and that she, therefore needs the premises for starting a ladies tailoring business. Similarly, it is seen that it is stated by the landlady in R.C.P No.77 of 2016 that she is conducting stationery and cool drinks business in the only room which is in their possession and that the income from the said business is the only source of income for her family. We do not find any inconsistency in the pleadings in the eviction petitions which would in any manner affect the bona fides of the need set out by the landlady in the present proceedings. The relevant pleading of the landlady in the eviction petition reads thus:

“Now the petitioner is at present no avocation she bonafidly require this building for starting a ladies tailoring shop by employing proper persons. The one vacant building which is in her possession is used by his son who is also a co-owner is conducting stationary business.”

The relevant pleading of the landlady in R.C.P No.77 of 2016 reads thus:

“The petitioner further begs to submit that the petition schedule building is bonafidely require for starting a DTP Computer center for her son Sreejith. He has completed his B.com decree and he has undergoing computer courses. He is at present unemployed and has no avocation. Sreejith is depending on the petitioner for the above room to start the above business. The petitioner or her son Sreejith did not have any vacant building in their possession. In one room petitioner herself is conducting stationery and cool drink business which is the only income for her family.”

A combined reading of the pleadings aforesaid would indicate that the landlady and her son are conducting stationery and cool drinks business in the only room in her possession and that they want the premises involved in the proceedings also, one for the landlady to start a ladies tailoring shop and the other for her son to start a DTP Computer Centre. Merely for the reason that the landlady is running along with her son a stationery and cool drinks business in the premises, it cannot be said that her need to start a ladies tailoring shop is not bona fide. One who is having a business may start another business also to augment his/her income, and we fail to understand as to how the same would affect in any manner the bona fides of the need set out by the landlady, as it is by now settled through a catena of decisions that what is to be seen by the Court in a proceedings of the instant nature is as to whether the need set out is natural, real and genuine. If it is found that the need is natural, real and genuine and not a ruse for eviction of the tenant, it has to be accepted as bona fide. There is no substance in the argument advanced by the learned counsel for the tenant, based on the decision of the Apex Court in Hasmat Rai (supra) also, as merely for the reason that the landlady is running a business of stationery and cool drinks in another premises along with her son, it cannot be said that the need set out for eviction does not exist. In the circumstances, we do not find any illegality, irregularity or impropriety in the decisions of the authorities below.

In the result, the revision petition is dismissed. The tenant, however, is granted six months' time from today to surrender vacant possession of the premises on condition that he shall file an unconditional undertaking before the Rent Control Court within two weeks from the date of receipt of a copy of this order to vacate the tenanted premises within six months and also that he shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent on or before the tenth day of every succeeding month till he vacates the premises.