Dismissed

Johny v. Surabhi Movies

Kerala HC8 Aug 2018RCRev./261/2018

Case brief

AI extract

What is this about?

The Kerala HC dismissed a rent control revision challenging eviction orders. Upholding lower courts' findings, the court held the tenants failed to prove bona fide need for their own use and discredited evidence that they resided in the premises, justifying eviction for lawful business purposes.

What did the court decide?

The revision petition was dismissed as tenant's case for subletting and bona fides were successfully proved by petitioner.

Johny Vs Surabhi Movies — Landlord and Tenant | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN

¶4

WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940

¶5

RCRev..No. 261 of 2018

¶6

AGAINST THE ORDER/JUDGMENT IN RCA 171/2016 of ADDITIONAL DISTRICT COURT, IRINJALAKUDA DATED 30-06-2018 AGAINST THE ORDER IN (OP) RC 3/2015 of RENT CONTROL COURT, CHALAKUDY DATED 31-10-2016

¶7

REVISION PETITIONER(S)/APPELLANT /RESPONDENT:

¶8

1 JOHNY, S/O.NAMBADAN OUSEPH,

¶9

AGED 59 YEARS, WEST CHALAKUDY VILLAGE,

¶10

CHALAKKUDY, THRISSUR.

¶11

NOW RESIDING AT AMBALLUR VILLAGE,

¶12

MUKUNDAPURAM TALUK, THRISSUR-680 307.

¶13

2 N.K.REGHU, S/O.UDAYANNOOR KESAVAN,

¶14

AGED 46 YEARS, THRIKKUR VILALGE, MUKUNDAPURAM TALUK,

¶15

THRISSUR. NOW AT U.K.AYURVEDA PHARMACY,

¶16

SURABHI COMPLEX, CHALAKUDY, THRISSUR-680 307.

¶17

BY ADV.SRI.S.SUNIL KUMAR (PALAKKAD)

¶18

RESPONDENT(S)/RESPONDENTS/PETITIONERS:

¶19

SURABHI MOVIES, SOUTH JUNCTION, CHALAKUDY, REPRESENTED BY MANAGING PARTNER-SAMSON,

¶20

S/O. LONAPPAN PANADAN, CHALAKUDY, THRISSUR - 680 307.

¶21

DAVIS, S/O. NAMBADAN OUSEPH, AGED 54 YEARS, KIZHAKKE CHALAKUDY VILLAGE, CHALAKUDY, THRISSUR - 680 307.

¶22

THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶23

RCRev..No. 261 of 2018

¶24

: 2 :

¶25

PETITIONER'S ANNEXURES:

¶26

ANNEXURE A1: CERTIFIED COPY OF THE ORDER IN RCP NO.3/2015 DATED 31.10.2016 OF RENT CONTROL COURT, CHALAKUDY.

¶27

ANNEXURE A2: CERTIFIED COPY OF THE JUDGMENT IN RCA NO.171/2016 IN OP(RC) NO. 3 OF 2015 DATED 30.06.2018 OF THE RENT CONTROL APPELLATE AUTHORITY, IRINJALAKUDA.

¶28

RESPONDENTS' ANNEXURES: NIL

/True Copy/

PS to Judge.

K. HARILAL & ANNIE JOHN, JJ. ------------------------------------------R.C.R No.261 of 2018

¶33

-----------------------------------------Dated this the 8^th day of August, 2018.

¶34

ORDER

¶35

K. Harilal,J.

¶36

The revision petitioners are the tenants who are confronting with an order of eviction concurrently passed under Sections 11(3), 11(4)(i) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short).

¶37

The first respondent herein filed (O.P) RC No. 3 of 2015 before the Rent Control Court, Chalakudy seeking an order of eviction under Sections 11(3), 11(8) and 11(4)(i) of the Act. The parties are referred to as in the Original Petition. According to petitioner, he bona fide needs the petition schedule building for starting a digital press, including wedding photography. Now he is doing his digital press in a small shop room which forms part of the building in which the petition schedule shop room is situated. Thus, an additional accommodation is required for the expansion of his existing business. The respondents are not mainly depending on the income from the business carried on in the petition schedule building and several other vacant rooms are available in the locality to shift their business. The petitioner has no other buildings of his own for the additional accommodation.

¶38

The respondents resisted the said petition contending that the bona fide need projected in the petition is a ruse for eviction only.

¶39

RCR No.261/2018

¶40

-2-

¶41

According to respondents 1 and 2, they have not sublet the the petition schedule building to the third respondent and they are mainly depending upon the income from the business carried on in the petition schedule shop room. They denied the allegation that they have sublet the petition schedule building to the third respondent. Further, according to them, the petition schedule shop room is not actually required for the expansion of the said business. No other buildings are available in the locality to shift their business from the tenanted premises. The third respondent is not the Proprietor of the business concern and he is only an employee of the first respondent and the rent deed does not prohibit subletting.

¶42

On the rival pleas, both parties adduced evidence and after considering the evidence on record, the Rent Control Court passed an order of eviction under Sections 11(3), 11(4)(i) and 11(8) of the Act on the findings that the need projected in the petition is bona fide , that respondents 1 and 2 are not entitled to get protection under the second proviso to Section 11(3) of the Act, and that respondents 1 and 2 have sublet the petition schedule building to the third respondent and that the petition schedule building is required for additional accommodation, thereby the petitioner is entitled to get vacant possession of the shop room under Sections 11(4)(i), 11(3) and 11(8) of the Act. Eventhough the respondents had preferred an appeal as RCA No. 171 of 2016 before

¶43

RCR No.261/2018 -3-

¶44

the appellate authority, after re-appreciating the evidence on record, the appellate authority also concurred with the findings of the Rent Control Court and dismissed the appeal. Thus the concurrent findings whereby the courts below have granted an order of eviction under Sections 11(3), 11(8) and 11(4)(i) of he Act are challenged in this revision.

¶45

At the outset, we must remind ourselves the limited scope and extent of interference in this revision petition, which is confined to the legality, propriety and regularity of the findings of the courts below only. This Court is not inclined to interfere with the factual findings, unless there is any kind of perversity in the appreciation of evidence or the findings are vitiated by non-consideration of material facts. In the instant case, the revision petitioner has no such case. Though this revision petition has been filed on various grounds, the learned counsel for the revision petitioner mainly contended that the courts below have failed to appreciate the evidence on record under Section 11(4)(i) and 11(3) of the Act in its correct perspective. According to the learned counsel for the petitioner, there is absolutely no evidence to prove that the first respondent has sublet the petition schedule building to the third respondent and there is bona fides in the need. Therefore, the sole question that arises for consideration in this revision is whether there is any illegality or impropriety in the concurrent findings of the courts below that the petitioner has succeeded in proving his case that he bona

¶46

RCR No.261/2018

¶47

-4-

¶48

fide needs the tenanted premises and the first respondent had sublet the petition schedule building to the third respondent. No other point has been raised in this Revision. In order to prove the bona fides of the need and subletting of the petition schedule building, the petitioner was examined as PW2 and two other witnesses were examined as PWs 1 and 3. He has produced the documentary evidence, Exts.A1 to A11. Ext. X1 was also marked as witness exhibit.

¶49

The landlord-tenant relationship between the petitioner and respondents 1 and 2 is not disputed. Ext.B1 is the lease agreement executed by respondents 1 and 2 in favour of the petitioner. The petitioner has sworn to a proof affidavit in tune with the averments in the petition and disclosing the bona fides of the need and the alleged subletting of the petition schedule building in favour of the third respondent. After analysing the oral evidence of PW1, the courts below concurrently found that nothing has been brought out in the crossexamination of PW1 to discredit his evidence. Thus, the courts below have reposed confidence in the oral testimony of PW1 with respect to the bona fide of the need and the alleged subletting of the petition schedule building. We do not find any reason to take a different view.

¶50

Coming to the provisos, it is needless to say that both the limbs of the second proviso are conjunctive and the burden of proof is on the tenant. But, no evidence has been adduced to discharge the burden of

¶51

RCR No.261/2018

¶52

-5-

¶53

proof under the second proviso. Therefore, the courts below are justified in granting an order of eviction concurrently under Section 11(3) of the Act.

¶54

As regards the order of eviction under Section 11(4)(i) of the Act, the petitioner has adduced oral evidence in tune with the averments in the Rent Control Petition with respect to the alleged sublease in favour of the third respondent. That apart, an Advocate Commissioner was appointed on the application of the petitioner to inspect the petition schedule building and to report about the conduct of the business. The Advocate Commissioner, as per Ext.C1 report, reported that at the time of inspection of the petition schedule building, the third respondent was found conducting the business in the petition schedule building and nobody other than the third respondent was present in the shop. That apart, PW1, the Assistant Labour Officer, was examined and the copy of the register maintained in the office of the Labour Office was marked as Ext.X1. As per Ext.X1, the third respondent is the owner of the business carried on in the petition schedule building by name 'U.K. Ayurveda Pharmacy'. PW1 has further deposed that at the time of inspection, the third respondent was found conducting the business and nobody other than him was present in the petition schedule shop room. Further he deposed that had there been any employee in the shop, certainly the names of the employees would have found a place in Ext.X1 register.

¶55

RCR No.261/2018

¶56

-6-

¶57

The courts below have placed reliance on the oral testimony of PW1 and the entries in Ext.X1 register maintained in the office of the Labour Office. We do not find any reason to discredit the evidence of PW1 and the entries in Ext.X1 register. It shows that the petitioner has succeeded in discharging the initial burden under Section 11(4)(i) of the Act. Then the burden will shift to the respondents.

¶58

Coming to the evidence adduced by the respondents with respect to Section 11(4)(i), Exts.B13 and B14 were produced in evidence. Ext.B13 is the registration certificate issued by the Commissioner of Food Safety and it was obtained after the filing of the Rent Control Petition alleging subletting. Therefore, no reliance can be placed on Ext.B13. Ext.B14 is the identity card issued by Food Safety Standard Authority of India and it shows that the first respondent is a Food Business Operator. It does not show that he is the owner of the business concern by name 'U.K.. Ayurveda Pharmacy'. As rightly held by the court below, the name of the business concern itself indicates that the third respondent is the owner of the said business concern. The name of the aforesaid business concern does not find a place in Ext.B14 identity card issued by the Food Safety Standard Authority of India. Therefore, it cannot be held that Ext.B14 was issued with respect to the business which is being carried on in the petition schedule building. No other evidence was adduced to rebut the evidence of PW1, the entries in

¶59

RCR No.261/2018

¶60

-7-

¶61

Ext.C1 and the report filed by the Advocate Commissioner. Therefore, we find that the respondents have miserably failed to rebut the evidence adduced by the petitioner. It follows that the petitioner has succeeded in proving the alleged sublease. We do not find any kind of illegality or impropriety in the findings, whereby the courts below granted an order of eviction under Section 11(4)(i) of the Act.

¶62

Accordingly, this RCR is dismissed.

¶63

K. HARILAL, JUDGE.

¶64

ANNIE JOHN, JUDGE.

¶65

¶66

RCR No.261/2018 -8-

Johny v. Surabhi Movies

Case brief

What is this about?

What did the court decide?

Johny v. Surabhi Movies

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Tomy Mathew Vs Siby C. Jose

Kuniyil Komalam Vs Kruppamkandy Premarajan

Chetti Parambath Yusaf Vs Keerampally Sumangala Devi

Shani Khader Vs Muhammed Hakkim

Pradeep Menon Vs Rajesh

Moideenkunju @ Mullakoya Vs Usmankutty