Dismissed

Mukundan v. Nalini Amma

Kerala HC11 Apr 2012RSA/1149/2005

Case brief

AI extract

What is this about?

An appellate court in a rent control dispute held that the tenant failed to prove non-availability of suitable alternative accommodation. The appeal was dismissed, but the appellant was granted three months to vacate the premises.

What did the court decide?

Appellant granted three months to vacate the schedule room subject to conditions of not inducting third parties, paying arrears, and seeking further time only from the executing court.

Mukundan Vs Nalini Amma — Landlord and Tenant | Kerala HC (2012)

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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 THOMAS P.JOSEPH

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WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934

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RSA.No. 1149 of 2005 ( )

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AS.133/2003 of PRL.SUB COURT,IRINJALAKUDA OS.357/1998 of PRL.MUNSIFF COURT,IRINJALAKUDA

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APPELLANT(S)/DEFENDANT/RSPONDENT.:

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MUKUNDAN, S/O.THAYYIL KUMARAN, RATHIKA ENGINEER WORKS, VELLANGALLUR P.O.

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BY ADV. SRI.V.BINOY RAM

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RESPONDENT(S)/PLAINTIFF/APPELLANT.:

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NALINI AMMA, W/O.KUNNUMPURATH RAGHAVA PILLAI, LOKAMALESWARAM VILLAGE, DESOM KODUNGALLUR TALUK.

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BY ADV. SRI.K.G.BALASUBRAMANIAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A.No.1149 of 2005

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==================================== Dated this the 11^th day of April, 2012

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J U D G M E N T

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Though the suit is of the year 1998, this litigation started a year before that with the respondent-plaintiff filing R.C.P. No.16 of 1997 in the Rent Control Court, Irinjalakuda for eviction of appellant-defendant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”). Respondent claimed that the schedule room, acquired by her as per Ext.A1, assignment deed No.1288 of 1995 is bona fide needed for the occupation of her daughter, P.W.1 who has no job, occupation or income to start business in stationary and ladies' items. Appellant denied the title of respondent pleading that the eastern wall of the schedule room and a portion of said room did not belong to the respondent as per Ext.A1. Finding that there is a bona fide denial of title, Rent Control Court referred the parties to the civil court for adjudication of the dispute. Respondent filed O.S. No.357 of 1998 in the court of learned Munsiff, irinjalakuda for a declaration of her title over the one cent and the rooms situated thereon as per Ext.A1, assignment deed and for eviction of appellant under Sec.11(3) of the Act. Appellant contended that

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respondent has no title over a portion of the room and its eastern wall and that the said portions belonged to Kooliyadan Anthony Lazer. He also denied the bona fide need set up by the respondent and claimed protection of the second proviso to Sec.11(3) of the Act.

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Trial court granted a decree declaring title of the respondent over the schedule room and for eviction of appellant. Appellant challenged that judgment and decree in A.S. No.10 of 2000. Trial court had taken the view that since the suit for eviction is filed in the civil court it is not necessary for the respondent to prove conditions stated in Sec.11(3) of the Act. First appellate court while confirming declaration of title granted by the trial court, set aside the decree to the extent it related to eviction of appellant and remitted the case to the trial court for fresh decision on the grounds urged under Sec.11(3) of the Act. Thereafter P.W.1 was recalled and further examined. Trail court took the view that bona fide need pleaded by the respondent is not proved and that the appellant is entitled to the protection of second proviso to Sec.11(3) of the Act. The suit was dismissed.

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Next, it was the turn of the respondent. She challenged that judgment and decree in A.S. No.133 of 2003.

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First appellate court found in favour of bona fide need pleaded by the respondent, held that the second proviso to Sec.11(3) of the Act is not proved by the appellant and consequently granted a decree for eviction. That judgment and decree of the first appellate court are under challenge in this appeal.

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The substantial questions of law framed for a decision are as under:

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(i) Was not the first appellate court in error in not holding that the burden of proving that the daughter and son in law of the landlady are conducting business in the rented premises, is on them in the light of the fact that they are asserting that fact?

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(ii) Was not the first appellate court in error in not holding that in the nature of business conducted by the tenant, non-availability of suitable building in the locality is proved by him?

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(iii) Was not the first appellate court in error in not holding that the plea of bona fide need is not supported by consistent pleading and that the bona fides of the landlady is suspect for that reason?

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R.S.A. No.1149 of 2005

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It is contended by the learned counsel for appellant that findings of the first appellate court regarding bona fide need and application of the second proviso to Sec.11(3) of the Act are not correct. According to the learned counsel, on the evidence on record first appellate court was not right in reversing the finding of trial court regarding bona fide need. It is contended that so far as the second proviso to Sec.11(3) is concerned, nonavailability of suitable building in the locality is established by Ext.C1, report of the Advocate Commissioner.

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Learned counsel for respondent contended that first appellate court on facts found in favour of the bond fide need pleaded by the respondent and it involves no substantial question of law. It is also contended by the learned counsel that existence of vacant buildings in the locality is proved by Ext.C1, report of the Advocate Commissioner and it was for the appellant to show that such buildings are not available. No such evidence is let in by the appellant. Hence the first appellate court was justified in finding that appellant is not entitled to the protection under the second proviso to Sec.11(3) of the Act.

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The challenge appellant had made to the title of

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respondent does not any more survive in view of the finding entered by the first appellate court in A.S. No.10 of 2000 which has become final.

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Though learned counsel for appellant contended that Ext.A1 is a sham document in so far as of the total extent the brother of PW1 purchased is 32 cents and the one cent and shop room were acquired by the respondent merely to facilitate a petition for eviction, I find that no such plea is raised by the appellant in the written statement. Hence the contention that Ext.A1 is a sham document cannot be entertained.

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The need stated by the respondent in the plaint is that the shop room is required for P.W.1, her daughter and the husband of P.W1 for running business in stationary and ladies' items. It is stated in the plaint that the husband of P.W1 is presently doing a small business at North Paravur and that it is not profitable for him to travel the distance from Kodungallur to North Paravur every day and conduct that business. Hence he has decided to wind up that business and join P.W.1 to conduct a business in stationary and ladies' items in the schedule room. It is also stated that neither the respondent nor P.W.1 nor her husband has in her/his possession any other suitable room where

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the proposed business could be conducted.

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The daughter of respondent gave evidence as P.W.1 in that line. She stated that she has no job, occupation or source of income and that she needs to start a business in the shop room along with her husband in the circumstances above stated.

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It is argued by the learned counsel for appellant that while the above is the need stated by the respondent in the suit, a contradictory need is set up in Ext.B8, copy of petition in R.C.P. No.16 of 1997. It is pointed out from para 8 of Ext.B8 that the plea raised in that case was that P.W1 has no business, job, occupation or source of income and that 'she' wanted to start a business in stationary and ladies' items in the schedule room. It is also contended by the learned counsel that though P.W.1 stated that the small business her husband is doing at North Parur is at a loss, no evidence in that line is adduced.

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Learned counsel for respondent pointed out that in paragraph 8 of Ext.B8 it is specifically stated that for the business proposed to be done by P.W1 in the schedule room, her husband and respondent have agreed to lend all assistance and in the plaint, it is specifically stated that P.W.1 and her husband wanted to do business in the schedule room. It is contended that

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the difference is only in the phraseology used in Ext.B8 and in the plaint. The 'assistance' by the husband of P.W1, referred to in Ext.B8 is explained in the plaint. Learned counsel submits that Ext.B8 and the plaint were drafted by different counsel and hence the difference in the phraseology used.

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I must bear in mind that even in paragraph 8 of Ext.B8, respondent has stated that herself and the husband of P.W.1 are agreeable to render all assistance to P.W.1 in running the business. The husband of P.W.1 could lend assistance by stopping his small business at North Paravur and joining P.W1 in conducting the proposed business in the schedule room. I am not inclined to think that there is any material discrepancy in the averments in the plaint and Ext.B8, copy of R.C.P. No.16 of 1997 to say that the plea raised by the respondent is not bona fide or is mala fide. The court is only to decide whether the need pleaded is bona fide or is only a pretext for eviction.

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It is contended by the learned counsel that the schedule room is not suitable for the business proposed to be run by P.W1 and her husband. Learned counsel argued from the evidence of P.W.1 that on the east of the schedule room there is a saw mill and on the further north of that saw mill, is yet another

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saw mill. But that there are two saw mills nearby cannot be taken as a reason to hold that the schedule room is not suitable for conducting business in stationary and ladies' items and at any rate, if there is no other suitable room in the ownership and possession of respondent, P.W.1 or her husband, they are to be satisfied with what they have, the schedule room.

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So far as the contention that there is no evidence apart from P.W1 stating about the alleged loss in the business now carried on by her husband at North Paravur is concerned, even if it is assumed that the said business is not at loss there is nothing wrong in the husband of P.W.1 deciding to wind up that business and set up business along with his wife (P.W.1) in the schedule room near to their house in their own room. It is not for the courts to decide whether the decision of the husband of P.W.1 to stop his business at North Paravur and join P.W1 in conducting a new business in the schedule room is a folly or not or, whether that business is going to be profitable or not. On hearing both sides and going through the evidence and pleadings I find no reason to interfere with the finding entered by the first appellate regarding bona fide need set up by the respondent.

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What remained is regarding the application of second

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proviso to Sec.11(3) of the Act. So far as the first limb of the second proviso is concerned, the trial and first appellate courts have held that it is not shown that appellant has any other source of income and hence it must be taken that his main source of livelihood is the income from the welding work he is conducting in the schedule room.

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But that alone is not sufficient. The second limb of the second proviso of Sec.11(3) of the Act is also to be satisfied. I am inclined to think, having regard to the various authoritative pronouncements on the question that the burden of proving the second limb of the second proviso as well is on the appellanttenant.

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Learned counsel for appellant has invited my attention to Ext.C1, report of the Advocate Commissioner where he has referred to certain shop rooms in the locality (which according to P.W.1 is 25 metres away from the shop room in question) remaining vacant. Learned counsel contends that the Advocate Commissioner has reported that enquiry with the landlords of the rooms referred to in Ext.C1 revealed that they were not agreeable to let out those rooms or, they have already entered into agreement with others for letting out the same.

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What exactly is the suitability of the room so far as the appellant is concerned is a matter within the knowledge of the appellant. True that the Advocate Commissioner referred to various rooms some of which are not available for letting out as stated by the Advocate Commissioner. But it was the responsibility of the appellant to summon the landlords of the rooms referred to in Ext.C1 and show that those rooms are not available for letting for whatever reason it be. That obligation is not discharged by the appellant.

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It was also necessary for the appellant to show that apart from the shop room referred to in Ext.C1 no other rooms are available in the locality. For that purpose it was open to the appellant to summon the Accommodation Controller. That has not been done. In that view of the matter I am not inclined to think that appellant has discharged the burden of proving the second limb of the second proviso to Sec.11(3) of the Act.

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Having heard learned counsel on both sides and gone through the judgments under challenge and the evidence on record I do not find any reason to interfere with the finding entered by the first appellate court.

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Substantial questions of law framed are answered as

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above.

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Learned counsel for appellant made an alternative request that six months' time may be granted to the appellant to vacate the schedule room. It is pointed out that appellant is engaged in welding work and he has to find out alternative, suitable accommodation. Learned counsel for respondent resisted the request. It is pointed out that the litigation started in the year, 1997 and in the meantime appellant ought to have looked for the alternative accommodation rather than waiting for the penultimate stage of dismissal the second appeal.

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Having heard learned counsel on both sides and having regard to the difficulties of appellant expressed by the learned counsel, I am inclined to grant some time to the appellant to vacate the schedule room.

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The Second Appeal is dismissed. Appellant is granted three months' time from this day to vacate the schedule room subject to the following conditions:

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(i) Appellant shall vacate the schedule room on the expiry of three months granted hereby without putting forth any claim or objection on any ground whatsoever.

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(ii) Appellant shall not, during the above period induct third parties into possession of the schedule room.

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(iii) I make it clear that the time granted hereby will not preclude the appellant from requesting the executing court to grant further time after three months if such a circumstance is warranted.

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(iv) If any such request is made the executing court shall consider the same and pass appropriate orders after hearing the respondent as well.

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(v) Appellant shall discharge the rent arrears within six weeks from this day and continue to pay damages for use and occupation at the rate of rent from this day until expiry of the three months granted hereby or till the time that may extend by the executing court after hearing both sides or till appellant vacates the schedule room, whichever is earlier.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Mukundan v. Nalini Amma

Case brief

What is this about?

What did the court decide?

Mukundan v. Nalini Amma

Case brief

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