Moideenkutty Haji Vs. Unni [Kerala High Court, 08-12-2015]

Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 11(3) – It has come out in evidence that vacant rooms belonging to others are available in the very building of which the petition schedule room is a part. The advocate commissioner has also reported about the existence of other vacant rooms in the locality. The burden of proving the ingredients of both the limbs of the second proviso to section 11(3) of the Act is on the tenant. Even assuming that the tenant is mainly depending for his livelihood on the income derived from the business carried on by him in the petition schedule shop room, as he has not proved the non-availability of other suitable rooms in the locality, it cannot be said that he is entitled to the protection of the second proviso to section 11(3) of the Act.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P. N. RAVINDRAN & BABU MATHEW P. JOSEPH, JJ.

R.C.R.No.307 of 2014

Dated this the 8th day of December, 2015

AGAINST THE JUDGMENT IN RCA 34/2012 of RENT CONTROL APPELLATE AUTHORITY, TIRUR DATED 28-08-2014 AGAINST THE ORDER IN RCP 18/2011 of RENT CONTROL COURT, PARAPPANANGADI DATED 25-09-2012

REVISION PETITIONERS/RESPONDENTS/PETITIONERS

MOIDEENKUTTY HAJI AND OTHERS

BY ADVS. SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN

RESPONDENT/APPELLANT/RESPONDENT

UNNI

R1 BY ADV. SRI.T.SETHUMADHAVAN (SR.) R1 BY ADV. SRI.PUSHPARAJAN KODOTH R1 BY ADV. SRI.K.JAYESH MOHANKUMAR R1 BY ADV. SMT.VANDANA MENON R1 BY ADV. SMT.N.DEEPA

ORDER

P. N. Ravindran, J.

1. The petitioners are the landlords in R.C.P.No.18 of 2011 on k the file of the Rent Control Court, Parappanangadi, a petition filed by them for an order of eviction under

Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965

hereinafter referred to as the “Act”, for short. The landlords had in the petition for eviction averred that they are the owners of the petition schedule shop room as also the room immediately behind it and the corresponding rooms on the upstairs portion of the said building. They had further averred that the second petitioner, who is a person with disability intends to start a tailoring business in the petition schedule shop room and in the room directly above it on the first floor of the building which is in the possession of a tenant by name Abu. The landlords had in the petition for eviction inter alia averred as follows:

“ഈ കോടതി അധികാരാതിർത്തിക്കകമായ താഴെ പട്ടികയിൽ വിവരിച്ച പീടികമുറികളടക്കമുള്ള ഒട്ടാകെ എടുപ്പിൽ താഴെ പട്ടികയിൽ വിവരിച്ച പീടികമുറിയും അതിന് പുറകിലുള്ള മുറിയും ഇവയുടെ മുകളിലുള്ള രണ്ട് മുറിയും അത് നിൽക്കുന്ന സ്ഥലവും മാത്രം ഒന്നാം ഹർജ്ജിക്കാരന്റെ ഭാര്യയും, രണ്ട് മുതൽ ഏഴു കൂടി ഹർജ്ജിക്കാരുടെ പെറ്റുമ്മയും ആയ കല്ലുപറൻപൻ മമ്മാതിക്കുട്ടി എന്ന മമ്മാദിയക്കുട്ടി എന്നവർക്ക് ജന്മാവകാശമായിരുന്നതും, മേൽപറഞ്ഞ മമ്മാതിക്കുട്ടി എന്ന മമ്മാദിയക്കുട്ടി എന്നവരുടെ മരണശേഷം ഹർജ്ജിക്കാർക്ക് കൂട്ടായി ജന്മാവകാശമായാതുമാണ്.”

2. Upon receipt of notice, the tenant entered appearance and filed a counter statement dated 26.09.2011 wherein he denied and disputed the bona fide need put forward in the rent control petition. He also contended in paragraph 6 of the said counter statement that the petitioners have another room of their own in their possession in the same building to conduct the proposed business if they really need it. It was contended that to the rear of the petition schedule building and in the upstairs portion, rooms are kept vacant. He did not however specifically allege that the landlord is in possession of any room other than the rooms referred to in paragraph 3 of the rent control petition. He also contended that he is mainly depending for his livelihood on the income derived from the business carried on in the petition schedule shop room and that no other shop rooms are available in the locality for him to shift his business and claimed the protection of the second proviso to section 11(3) of the Act.

3. Before the rent control court, on the side of the landlords, the second petitioner, on whose behalf the order of eviction was sought, was examined as PW1 and Exts.A1 to A8 were produced and marked. The respondent/tenant examined himself as RW1 and produced and marked Exts.B1 to B5. On application filed by the landlords, an advocate commissioner was appointed to inspect the petition schedule building. The advocate commissioner was examined as CW1, the report submitted by her was marked as Ext.C1 and the plan accompanying it was marked as Ext.C1(a). The rent control court considered the rival contentions and held that the need put forward is bona fide. Though it was contended before the rent control court that the landlord is in possession of a vacant room situate behind the petition schedule building, the rent control court held that it has no direct access from the road and that it is being used as a godown. The rent control court also took note of the fact that the landlord has obtained an order of eviction in respect of the premises bearing door No.IV/1169 by filing R.C.P.No.17 of 2011. The rent control court also held that the tenant has not discharged the burden of proving the ingredients of both the limbs of the second proviso to section 11(3) of the Act. An order of eviction was accordingly passed under section 11 (3) of the Act on 25.09.2012. Challenging that order, the tenant filed R.C.A.No.34 of 2012 before the Rent Control Appellate Authority, Tirur. The appellate authority after independently considering the pleadings and the materials on record held that the bona fide need put forward is true and genuine. The appellate authority however held that as the landlords have admitted that they are in possession of the room behind the petition schedule shop room and the rooms immediately above the petition schedule shop room and the room to its rear, in the absence of any pleading, setting out the special reasons justifying an order of eviction, or evidence in that regard, the tenant is entitled to the protection of the first proviso to section 11(3) of the Act. In coming to the said conclusion, the appellate authority placed reliance on the decisions of this court in

Janatha Drugs v. Maithri Construction [2007 (4) KLT 625]

and