Dismissed

Augustine v. Jovan

Kerala HC21 Nov 2013RCRev./323/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed revision petitions against orders allowing eviction of tenants under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act. The Court held the landlady proved bonafide need to start a hardware business and vacated the appellate authorities from acting perversely in rejecting tenant objections.

What did the court decide?

Revision petitions dismissed; tenants granted one month to deposit arrears and affidavit to vacate on or before 30.09.2004 subject to conditions.

Augustine Vs Jovan — Kerala HC (2013) — LawSathi Research

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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 T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935

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RCRev..No. 323 of 2013 ()

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AGAINST THE ORDER/JUDGMENT IN RCA 20/2011 of DISTRICT JUDGE AND RENT CONTROL APPELLATE AUTHORITY, NORTH PARUR

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AGAINST THE ORDER/JUDGMENT IN RCP 14/2009 of RENT CONTROL COURT, PARAVUR REVISION PETITIONER(S)/APPELLANT/RESPONDENT:

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AUGUSTIN AGED 56 YEARS S/O.OUSEPH, MANAVALAN, PARAVOOTHARA MURI PARAVUR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT.

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BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA

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RESPONDENT(S)/RESPONDENT/PETITIONER: ----------------------------------------------JOVAN, AGED 44 YEARS W/O.PAUL, MALIEKAL, PARAVOOTHARA MURI PARAVUR TALUK, PARAVUR VILLAGE ERNAKULAM DISTRICT. PIN-683 513. R1 BY ADV. SRI.P.VISWANATHAN R1 BY ADV. SRI.SUNIL N.SHENOI

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21-11-2013 ALONG WITH RCR 333/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.

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- - - - - - - - - - - - - - - - - - - - - - - - - -

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R.C.R.Nos. 323 & 333 of 2013

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DATED THIS THE 21ST DAY OF NOVEMBER, 2013

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O R D E R

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Ramachandran Nair, J.

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The respondent/landlady is the owner of four rooms in a shopping complex, viz. Maliekal Shopping Complex. Two rooms are in the ground floor and two in the first floor. The two rooms in the ground floor are occupied by the two tenants who are the petitioners in the respective revision petitions. The landlord filed R.C.P.Nos.13/2009 and 14/2009 for bonafide occupation of the premises under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act). Both the authorities have found in favour of the landlord. Aggrieved by the same, these revision petitions are filed.

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It is the case of the landlady that she wants to start a business in hardware and paints. The landlady is not having any vacant building for doing the proposed business. It was also contended that her son is studying and the business is intended for him also. The family members of the landlady are also in the same line of business.

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RCR Nos.323 & 333/2013

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The tenants raised various objections including that the landlady is affluent and it is not necessary for her to do a business. Her husband is also well placed and is having business income.

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Both sides adduced evidence in the matter. On the side of the landlady, P.Ws.1 and 2 were examined and Exts.A1 to A13 have been marked. On the side of the tenants, R.Ws.1 to 6 were examined and Exts.B1 to B26 have been marked. Exts.X1 to X9(d) were marked through witnesses. Ext.C1 is the commission report.

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We heard learned learned Senior Counsel for the petitioners, Shri Ranjith Thampan and Shri P. Viswanathan, learned counsel appearing for the respondent.

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It was contended by the learned Senior Counsel for the petitioners that there is no legal evidence to establish the ground pleaded under Section 11(3) of the Act. Mainly it is a case where the landlady's attempt is only to see that the tenants are evicted for no reason at all.

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These arguments were countered by learned counsel appearing for the respondent by pointing out that no error has been committed by both the authorities and the view taken is not perverse.

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The evidence of P.W.1 will show that she obtained the petition

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RCR Nos.323 & 333/2013

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schedule shop rooms as per Ext.A12 partition deed No.4708/1993. In the rooms in the upper floor the North Paravur branch of the State Bank of Travancore is functioning. The landlady has deposed that she is not having any job or income and the son is also dependent on her and she intends to start a business in hardware and paints in the petition schedule room. It was pointed out that the rooms in the possession of the State Bank of Travancore are not suitable for doing the said business.

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One of the objections raised by the tenants was that the evidence of the Manager of the State Bank of Travancore will show that earlier the landlady had informed as per Ext.X2 letter that the family wants to conduct a business in the shop rooms occupied by them. Later, discussions were made in the matter and the relevant communications have been produced as Exts.X4 and X5 also. It was vehemently contended by the tenants before the Rent Control Court and the Appellate Authority that the documents produced through the Manager of the S.B.T. will show that actually the landlady wanted to start business in the upper floor. The Rent Control Court was of the view that even though originally, going by Ext.X2 a proposal was originated to start a family business, it is clear from Ext.X3 that the landlady has withdrawn the family business. Therefore, the said

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RCR Nos.323 & 333/2013

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argument was not accepted. It was found that the evidence of the landlady as P.W.1 regarding the bonafide need stood unchallenged.

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On the benefit of the second proviso to Section 11(3) of the Act also, even though evidence was adduced by the tenants, it was found that they are not entitled for the benefit of the said proviso. In fact, the landlady had taken out a commission to show that there are vacant buildings in the locality and Ext.C1 is the report and the Commissioner was examined as P.W.2.

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The Appellate Authority also has considered the matter elaborately. After referring to the legal position declared by this Court in various decisions relating to Section 11(3) of the Act, it was found that the genuineness of the bonafide need pleaded cannot be doubted. It is in evidence that the income from the four shop rooms is the only income of the landlady. The fact that her husband is having another business, is not a relevant aspect as far as her projected need is concerned. The business is also intended for her son who is studying at present and the two rooms are required for starting the business. The rooms occupied by the S.B.T. Are in the first floor also. Accordingly, the Appellate Authority found that the bonafide need has been properly proved. It was also found that there was

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RCR Nos.323 & 333/2013

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some discussion with the S.B.T. Officials earlier and finally the landlady was satisfied with the higher rent offered by them, but it cannot be held that on that score the bonafide need can be said to be not genuine.

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The Appellate Authority also accepted the evidence of P.W.1 that other vacant buildings are available in the locality for the tenants to shift the business. The report of the Advocate Commissioner was also relied upon in that context.

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Regarding the question whether the tenants are depending upon solely on the income derived from the business conducted in the petition schedule building, for eking out their livelihood, the finding is against the petitioners.

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On an assessment of evidence, we are of the view that both the authorities have not acted perversely in ordering eviction. Hence, we dismiss the revision petitioners. Learned Senior Counsel for the petitioners submitted that the tenants have a contention that the security amounts have to be refunded. Since those are not issues which arose for consideration before the authorities below, we leave that question open. We grant time upto 30.9.2004 for the petitioners to vacate the petition schedule premises, on the following conditions:

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RCR Nos.323 & 333/2013

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i) The entire arrears of rent as on today will be paid/deposited within

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one month. If such deposit is made, the same will be disbursed to the respondent;

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ii) An affidavit will be filed by the petitioner before the Rent Control Court within one month from today, undertaking to vacate the premises within the time stipulated by this Court.

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iii) The petitioner will continue to pay at the same monthly rate for the use and occupation of the building till vacant peaceful possession is handed over to the respondent;

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iv) If the above conditions are not satisfied, the petitioner will not get the benefit of this order. No costs.

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(T.R.RAMACHANDRAN NAIR, JUDGE)

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(B. KEMAL PASHA, JUDGE)

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kav/

Augustine v. Jovan

Case brief

What is this about?

What did the court decide?

Augustine v. Jovan

Case brief

What is this about?

What did the court decide?

What the court decided

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Parties & counsel

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