Dismissed

Kdasseri Biju v. Sajivan Mundiadi

Kerala HC1 Oct 2013RCRev./409/2011

Case brief

AI extract

What is this about?

Rent Control Appellate Authority upheld eviction of tenant based on landlord's bonafide need to shift bakery business, rejecting claims of bad faith regarding adjacent room usage and shifting to less important locality; High Court confirmed order granting time for vacancy.

What did the court decide?

Petitioner granted time until 31.7.2014 to vacate premises subject to payment of arrears, undertaking affidavit, and continued rent until possession handed over.

Kdasseri Biju Vs Sajivan Mundiadi — Landlord and Tenant | Kerala HC (2013)

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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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TUESDAY, THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935

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RCRev..No. 409 of 2011 ( ) ---------------------------

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AGAINST THE ORDER/JUDGMENT IN RCA 94/2007 of RENT CONTROL APPELLATE AUTHORITY AND ADDL.D.C. KOZHIKODE-III DATED 27-09-2011

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AGAINST THE ORDER/JUDGMENT IN RCP 121/2006 of RENT CONTROL COURT/PRL.M.C.KOZHIKODE-I DATED 30-06-2007 REVISION PETITIONER(S)/RESPONDENT/RESPONDENT:

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KDASSERI BIJU S/O.ASHOKAN, AGED 42 YEARS, PUTHALATHU PARAMBA P.O.EDAKKAD, KOZHIKODE. BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA

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RESPONDENT(S)/APPELLANT/PETITIONER: -

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SAJIVAN MUNDIADI

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S/O.CHANDUKUTTY, AGED 42 YEARS, MUNDIADI VEEDU HOUSE EAST HILL, KACHERI AMSOM, DESOM WEST HILL, KOZHIKODE-673005.

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R,R1 BY ADV. SRI.SRINATH GIRISH R,R1 BY ADV. SRI.K.S.VINAYAK PRATAP

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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APPENDIX

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PETITIONER(S) EXHIBITS

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ANNEXURE A TRUE COPY OF EXTRACT OF LICENCE FEE REGISTER.

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RESPONDENTS' EXHIBITS

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NIL

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P.S. TO JUDGE

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

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

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R.C.R. No. 409 of 2011

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DATED THIS THE 1st DAY OF OCTOBER, 2013

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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 by the tenant of a room who is conducting a fancy store, aggrieved by the judgment of the Appellate Authority by which eviction has been ordered in favour of the landlord. It is a case where the Rent Control Court disallowed the eviction sought by the landlord under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), for bonafide need,

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The order is under attack by the learned counsel for the petitioner, Shri K.M. Firoz mainly by pointing out that there is lack of bonafides on the part of the landlord since it is in evidence that he was having possession of another room, viz. room No.2/49 very near to the petition schedule building and that was given to his brother for conducting hardware business, five days prior to the issuance of the notice for eviction. It is also stated that earlier the landlord had filed O.S. NO.238/2004 stating that the agreement between the parties is a licence and seeking for a eviction. In the said suit,

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RCR No.409/2011

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a finding was rendered that the transaction between the parties is a lease and not a licence and immediately the present Rent Control Petition has been filed.

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It is also submitted that what is produced by the landlord in evidence before the Rent Control Court to support his case that his brother is doing hardware business in room No.2/91, is only Ext.A7, a receipt showing payment of renewal licence fee which was actually produced after his examination, at the fag end of the trial. It is further submitted that the landlord is doing business in bakery in another locality, viz. in West Hill Junction and the plea raised is that he wants to shift the same to the petition schedule room. It is in evidence that his own brother is conducting bakery business in the nearby building, very near to room No.2/49 and therefore it is not normal that the very same business will be shifted to the same locality.

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We had the advantage of hearing learned counsel for the respondent/landlord, Shri Srinath Girish, who submitted that all the above pleas have been correctly answered by the Appellate Authority, by taking the view that since the landlord is doing business in a rented building and

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RCR No.409/2011

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he is paying a higher rent than the rent he is getting for the petition schedule room and merely because the brother is having a bakery business in the very same locality, it will not affect the bonafide need. It is upto the landlord to adjust to the circumstances and the Appellate Authority has relied upon various decisions in that context. It is submitted that as far as room No.2/49 is concerned, actually his brother is having hardware business since four years and it was stated in evidence by P.W.1 that the brother was already occupying that room and therefore actually the same was not vacant on the date of filing of the eviction petition and hence the first proviso to Section 11(3) of the Act will not apply to the facts of this case.

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The Rent Control Court, after analysing the evidence, accepted the case of the tenant. It was mainly found that when the brother of the landlord is conducting the very same business in the locality, normally he will not think of shifting it very near to the building wherein his brother is conducting business. It is also found by the Rent Control Court that as far as the locality where the landlord is now conducting business is concerned, it is more an important one and therefore it will not be normal for a person to shift that business to a less important locality. It is also found by the Rent

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RCR No.409/2011

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Control Court that it is not a case where the landlord wants to have a branch of his bakery unit in the petition schedule building. With regard to building No.2/49, the Rent Control Court observed that the plea raised by the tenant is acceptable and as the landlord has not specifically proved that his brother is doing hardware business in the said room, it can only be found that the room is in the possession of the landlord himself.

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The Appellate Authority has considered various aspects from para

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11 onwards of the judgment. After analysing the evidence of P.W.1, the Appellate Authority found that as far as the present room where the landlord is conducting business in West Hill Junction is concerned, he is paying rent at Rs.1,450/-, whereas he is getting only a lesser rent from the petition schedule room, viz. Rs.550/-. It is also stated that the finding by the Rent Control Court that the locality where the petition schedule room situates, is less important and is not having commercial importance for pursuing the landlord to shift the present business, may not be correct for want of evidence. The Appellate Authority finally found that both the rooms are situated in important junctions in Calicut city. Importantly, the Appellate Authority also found that there are various places in the city itself where

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RCR No.409/2011

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similar types of business are being conducted side by side and therefore the plea raised by the tenant cannot be taken on its face value and in para 16 of the judgment it was held that number of bakeries are situated in nearby rooms i in the same city, owned by relatives. It was thus held that the bonafide need is not a genuine one and it cannot be doubted.

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As far as the aspect of bonafide need is concerned, what is pleaded is that the landlord wants to shift his business from the tenanted premises, to his own building. Such an idea by the landlord, going by the decisions of the Apex Court and this Court, cannot be attacked on the plea that the landlord could have adjusted to the earlier premises. It is settled law that once the court finds that there is bonafide need, the choice of the premises is the subjective satisfaction of the landlord. But Shri K.M. Firoz, learned counsel for the petitioner tried to address another argument that it is a case where the landlord is in occupation of another vacant room and therefore if the said fact is analysed along with the attempt to shift the business, this Court can come to only one conclusion that the need of the landlord is not bonafide. The Appellate Authority has answered the above point by stating that the evidence in the case shows that room No.2/49 was given to the

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RCR No.409/2011

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brother of the landlord for doing hardware business. It was also held that the burden is on the tenant to prove that the landlord is in vacant possession of the room. In para 23, it was found that there is no available evidence to show that room No.2/49 is vacant and in possession of the landlord. On that point the case of the landlord was accepted by the Appellate Authority.

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The question is whether the views taken are perverse. Of course,

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if the room was remaining vacant and without disclosing any special reason the landlord had approached the court by filing an eviction petition, the court may have to go into the various details to find out whether the plea is bonafide. It is submitted by Shri K.M. Firoz that during the pendency of the appeal, the landlord has sold out a building to his brother to put up a new building there and the photograph of the new building has been produced in this revision petition. According to the learned counsel, it was only an attempt to defeat the pleas of the tenant. But going by the decisions of this Court, even if the landlord sells out a building during the pendency of the eviction petition, that cannot a ground to deny the eviction of the petition schedule building, since the requirement of the landlord for that building is the subjective satisfaction of the landlord himself and the court

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RCR No.409/2011

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cannot dictate terms in that matter and the tenant also cannot insist that the landlord should have occupied the other room. Therefore, merely because the landlord sold out a building during the pendency of the appeal, that also to the very same brother, we cannot agree with the argument of the learned counsel for the petitioner that the same has an adverse reflection on the bonafide need of the landlord.

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The plea raised by the landlord being that he wants to shift his business to the petition schedule building, even if the brother is conducting another business in the very same locality and as he is paying a higher rent, we are also of the view that the conclusion arrived at by the Appellate Authority being a plausible one, the same does not require interference in the revision petition.

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Regarding the adjustment between the brothers with regard to room No.2/49 also, there is a reasonable explanation on the part of the landlord and it may not be proper for this Court to insist that the landlord should have occupied that building and should have adjusted with the same. In fact, whien examined as P.W.1, the landlord has explained that if that room is occupied by him, then the bakery business will be very adjacent to

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RCR No.409/2011

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the room where his brother is doing business and therefore he has preferred the petition schedule room. By no stretch of imagination the court can substitute that view of the landlord by insisting that he should occupy room No.2/49 itself. Therefore, we reject the said contention.

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As far as the benefit of the second proviso to Section 11(3) of the Act is concerned, the findings on both the limbs are against the tenant. He has failed to prove that he is depending solely on the income derived from the business being conducted in the petition schedule building. It has come out in evidence that he is having another fancy store in the very same city. Since the same is an admitted fact, the Appellate Authority was justified in entering a finding against the tenant. With regard to the availability of alternate room also, the finding is against the tenant.

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We, therefore, confirm the judgment rendered by the Appellate Authority and dismiss the revision petition.

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At this stage, learned counsel for the petitioner sought a larger time to vacate the room in question. We grant time upto 31.7.2014 for the petitioner to vacate the petition schedule premises on the following conditions:

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RCR No.409/2011

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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/

Kdasseri Biju v. Sajivan Mundiadi

Case brief

What is this about?

What did the court decide?

Kdasseri Biju v. Sajivan Mundiadi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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