Dismissed

K.Abraham v. D.Kochukunju and Others

Kerala HC20 Jun 2008RCRev./138/2008

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a rent control revision petition challenging an eviction order. The court upheld the lower authority's findings regarding bona fide need and arrears of rent, rejecting the tenant's claim for educational institution protection. Eviction was allowed subject to a three-month vacancy period.

What did the court decide?

Eviction order confirmed; tenant granted three months to vacate premises unconditionally upon filing of undertaking.

K.Abraham Vs D.Kochukunju and Others — Landlord and Tenant | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR

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FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930

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RCRev..No. 138 of 2008()

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-----------------------RCA.12/2006 of DISTRICT COURT, PATHANAMTHITTA RCP.13/2004 of MUSNIFF COURT,ADOOR

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: REVISION PETITIONER/APPELLANT/RESPONDENT:-

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REJI K.,ABRAHAM, MELETHEKKETHIL HOUSE, PADUKOTTUKKAL MURI, PANDALAM, THEKKEKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA, DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ANNIE.V.MANI, MELETHEKKETHIL HOUSE, PADUKOTTUKKAL MURI, PANDALAM, THEKKEKARA VILLAGE.

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BY ADV. SRI.PHILIP M.VARUGHESE

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RESPONDENTS: -------------

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D.KOCHUKUNJU, S/O P.M. DANIEL,PERUVICKAL VEEDU, PANNIVIZHA MURI, ADOOR VILLAGE, ADOOR TALUK.

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DORIS K.SUSAN, D/O KOCHUKUNJU, PERANICKAL VEEDU, PANNIVIZHA MURI, ADOOR VILLAGE, ADOOR TALUK.

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SRI.C.A.JOY,CAVEATOR

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON 20.6.2008 PASSED THE FOLLOWING:

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P.R.Raman &

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T.R. Ramachandran Nair, JJ.

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- - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.138 of 2008

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Dated this the 13th day of June, 2008.

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O R D E R

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Ramachandran Nair, J.

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This revision petition is filed challenging the judgment rendered by the Rent Control Appellate Authority in an appeal filed by the tenant who is the revision petitioner herein. Before the Rent Control Court, the landlord sought eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act'). The Rent Control Court ordered eviction under Sections 11(2) and 11(3) of the Act. The Appellate Authority has confirmed the same under Section 11(3) and the eviction sought on the ground of arrears of rent (Section 11(2)(b) was dismissed.

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We heard learned counsel for the petitioner and the learned counsel for the respondents who appeared on caveat. Learned counsel for the petitioner contended that the findings rendered by the authorities below are totally against the evidence adduced by the parties and there are no reliable material to allow the eviction on the grounds pleaded by the landlord. It is submitted that the view taken is perverse warranting

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RCR 138/2008

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interference by this court.

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Learned counsel for the respondents submitted that the authorities have elaborately considered the pleadings and evidence in the case and hence the eviction ordered is perfectly justified.

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Shorn of details, the facts necessary for the disposal of the revision are the following: The premises was let out on a monthly rent of Rs.2,600/- and the rent is in default from September, 2002. The room in question is a hall and it was let out on 1.10.1997 for conducting a computer institution. The first petitioner is a pensioner and the second petitioner is his daughter. As the first petitioner is not having any occupation of his own, the petitioners bonafide need the petition schedule premises for conducting a joint business in fancy store.

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In the objection, the tenant contended that an educational institution in the name and style of “Computer Centre of India” is being conducted in the building and the tenant is entitled for the protection under Section 11(II)(ii) of the Act. It is also pleaded that as the petitioners have sufficient income and means, they have no necessity to conduct a fancy store. At any rate, they have not made any arrangements for conducting the said business. Apart from that, two or three rooms are vacant in the ground floor of the building which are convenient for the purpose of conducting a

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RCR 138/2008

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fancy store. It was further pleaded that the tenant and his family are solely depending on the income from the educational institution and no other rooms are available in the locality to shift the business.

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P.Ws.1 and 2 were examined and Exts.A1 to A11 were marked on the side of the petitioners. R.Ws.1 to 3 were examined and Exts.B1 to B5 were marked on the side of the counter petitioner. On a detailed analysis of the evidence, the Rent Control Court ordered eviction both on the grounds of arrears of rent and bonafide need.

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As regards the ground of arrears of rent is concerned, the appellate authority found that the amount of arrears of rent is smaller than the advance amount held by the landlord and therefore the landlord is not entitled to evict the tenant on the ground of arrears of rent. Here, the advance amount received is Rs.75,000/-. The arrears of rent said to be due is Rs.76,700/-. This is calculated on the basis that the basic rent is Rs.3,200/- from 16.2.2003. But the evidence shows that including the monthly service charges, the rent per month is only Rs.2,600/-. It is on these premises that the appellate authority found against the landlord.

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The bonafide need pleaded, as noticed earlier, is for conducting a fancy store. P.W.1 is the first petitioner. He is a pensioner. The petition schedule premises consists of two rooms and it is lying as a single unit as a

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RCR 138/2008

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hall. It was mainly contended by the tenant that the son of the landlord is doing a small business in fancy store and therefore it is only a mere ruse to get eviction. It is also pointed out that the second petitioner is in abroad along with her husband. But as the father being a retired bank employee and is remaining idle as a pensioner, the Appellate Authority found that the plea of bonafide need urged cannot be doubted. It was contended before the Appellate Authority by the tenant that the second petitioner is appearing through the power of attorney holder, her father and she has not spoken in express terms the desire to start a business. Therefore, it was stressed that the ground pleaded cannot be accepted. It was found that the evidence tendered by the father can be accepted. In fact, the need pleaded is for conducting a joint business and there is proper proof of the same also. As the evidence of P.W.1 was believable, the appellate authority rightly found that the need pleaded is a bonafide one and it is not a ruse to evict the tenant. We find no reason to interfere with the said finding rendered by the appellate authority. The facts necessary for establishing a bonafide need have been properly pleaded in the eviction petition and it is supported by the evidence of P.W.1. There is nothing to show that the need put forth is a malafide one. For all these reasons, we confirm the said finding.

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Then the question is whether the tenant is entitled for the benefit

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RCR 138/2008

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of the two limbs of the second proviso to Section 11(3) of the Act. In fact, the counter petitioner did not enter the box and R.W.1 who was examined, is his sister-in-law. Even though it was stated that the income from the computer institution is the sole income of the family, nothing was stated or produced to sustain the same. Even though it was deposed by her that her husband is also a partner of the business, nothing was produced to show that it is a partnership business. Going by Ext.A8 rent deed, the building was taken on rent by the tenant alone. In fact, the evidence further establishes the fact that the tenant is employed abroad and he is residing there along with his wife and children. As RW.1 is looking after the affairs of the institution and it was rightly found by the Appellate Authority that the tenant failed to prove that he is solely depending on the income from the computer institution for his livelihood and the livelihood of the family. As far as the second limb regarding the availability of alternate site also, the tenant has not discharged his burden in that respect. On these grounds, the authorities below held against the tenant. There is no infirmity in respect of those findings also.

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Then, the other contention is regarding the plea of protection under Section 11(II)(b) of the Act. To sustain the benefit of the said provision, the institution should be an educational institution recognised by

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RCR 138/2008 -6-

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the Government at the time of letting. Even though Exts.B2 to B5 were produced to support the said contention, the tenant could not establish that it is being conducted as an educational education. There was no evidence to prove that it was a recognised institution. Therefore, we find no reason to interfere with the said finding also.

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The authorities have concurrently found in favour of the landlord in respect of the ground pleaded under Section 11(3) of the Act. The said conclusion is not so perverse warranting interference in exercise of the revisional jurisdiction of this court.

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At this stage, the learned counsel for the petitioner sought for some time to vacate the premises. We grant three months time from today to the petitioner to vacate the premises on condition that he files an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry of three months from today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. If any of the conditions aforesaid is

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RCR 138/2008

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violated, then the order of eviction will become enforceable at once.

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Subject to the above, the revision petition is dismissed, however no

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costs.

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( P.R.Raman, Judge.)

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(T.R. Ramachandran Nair, Judge.)

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kav/

K.Abraham v. D.Kochukunju and Others

Case brief

What is this about?

What did the court decide?

K.Abraham v. D.Kochukunju and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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