Disposed

Poyyil Chemmeri Vijayan v. K.K.P Safiya Umma

Kerala HC22 Nov 2018RCRev./372/2018

Case brief

AI extract

What is this about?

Revision against eviction order under Section 11(3) of Kerala Buildings (Lease and Rent Control) Act, 1965. Court held subsequent starting of flour mill does not vitiate bona fide need. Petitioner allowed 7 months to vacate on conditions.

What did the court decide?

Petitioner granted 7 months to vacate subject to conditions; finding of Appellate Authority upheld; revision otherwise dismissed.

Poyyil Chemmeri Vijayan Vs K.K.P Safiya Umma — Contract and Commercial Disputes | Kerala HC (2018)

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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 K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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THURSDAY ,THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940

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RCRev..No. 372 of 2018

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AGAINST THE JUDGMENT IN RCA 62/2014 of ADDL.DC - II, THALASSERY DATED 29-06-2018

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AGAINST THE ORDER IN RCP 307/2012 of PRL.M.C.,KANNUR DATED 27-012014

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REVISION PETITIONER/RESPONDENT/RESPONDENT:

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POYYIL CHEMMERI VIJAYAN AGED 64 YEARS S/O CHATHUKUTTY, RESIDING AT KOLACHERY AMSOM, KAMBIL DESOM, P O KOLACHERY, KANNUR DISTRICT-670601

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BY ADV. SRI.K.MOHANAKANNAN

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RESPONDENT/PETITIONER/APPELLANT:

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K.K.P SAFIYA UMMA AGED 71 YEARS D/O KUNHI POKKER, RESIDING AT K K P HOUSE, KAMBIL, PO KOLACHERY, KANNUR DISTRICT-670601

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O R D E R

K.Harilal,J.

The revision petitioner is the tenant against whom an order of eviction has been passed concurrently by the courts below under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act').

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2. According to the petitioner/landlord, her son Sidhique, who is aged 33 years has no job or avocation and he is a dependent on her. He intends to start a ready-made garment business in the petition schedule shop rooms. Hence she bona fide requires the petition schedule shop rooms for starting a ready-made garment business for her son, who is a dependent on her. According to her, neither the petitioner nor the dependent has any other

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building of their own in their possession to start the proposed business of ready-made garments. But, several other buildings are available in the locality to shift the business of the respondent from the tenanted premises. With the aforesaid averments the petitioner prayed for an order of eviction under Section 11(3) of the Act.

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3. The respondent resisted the claim for eviction under Section 11(3) of the Act contending that the need projected is not bona fide and he further contended that the petitioner's son is working abroad and that he has many businesses in the native place. Further, it is contended that the petitioner has other buildings of her own to start the proposed business. He is entitled to get protection under the second proviso to Section

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11(3) of the Act as no other vacant buildings are available in the locality and he is depending mainly on the income derived from the business in the tenanted premises.

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4. After considering the evidence on record, the Rent Control Court found that the need projected is not bona fide; but the respondent is not entitled to get protection under the second proviso and the claim for eviction is not barred by the first proviso to Section 11(3) of the Act.

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5. Feeling aggrieved, the petitioner preferred an appeal before the Appellate Authority and the Appellate Authority, after re-appreciating the evidence on record, reversed the findings of the Rent Control Court and found that the need projected in the petition is bona fide. The Appellate Authority

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also concurred with the findings of the Rent Control Court that the respondent is not entitled to protection under the second proviso to Section 11(3) of the Act and the claim for eviction is not barred by the first proviso to Section 11(3) of the Act. Thus, the legality and propriety of the divergent findings on the bona fides of the need projected by the petitioner have come up in revision before us.

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6. Heard the learned counsel for the

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petitioner.

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7. The learned counsel for the tenant mainly canvassed the point that the Rent Control Court has rightly appreciated the evidence on record under the bona fides of the need and rightly arrived at a finding that the need projected in the petition is

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not bona fide; whereas the Appellate Authority reversed the said finding without appreciating the evidence on record on the bona fides of the need, in its correct perspective.

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8. We have meticulously gone through the divergent findings rendered on the bona fides of the need by the Rent Control Court as well as the Appellate Authority. Prima facie, on a bare reading, we find that the findings of the Rent Control Court on the bona fides of the need are not satisfactory. The Rent Control Court has not considered the entire evidence on record before arriving at a finding that the need projected in the petition is not bona fide. Though the son of the petitioner, for whose need the building is sought to be evicted,

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was examined in evidence, the Rent Control Court has not considered the evidence of PW1 before arriving at a finding that the need projected is not bona fide. Though the Rent Control Court has stated that the petitioner has suppressed the material facts, the particulars of those suppressed facts were not disclosed or discussed in the Rent Control Petition. But, going by the impugned judgment passed by the Appellate Authority, we find that from paragraph Nos.12 to 14 the Appellate Authority has considered the evidence of PW1 and the contention of the respondent that the petitioner has suppressed material facts in

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the Rent Control Petition. There arises the question, whether there is any illegality or perversity in the findings of the Appellate

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Authority that the petitioner has not suppressed material facts in the Rent Control Petition.

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9. It is true that it has come out in evidence that subsequent on the filing of the Rent Control Petition the dependent, for whose need the building was required, started a flour mill. But, in the Rent Control Petition, it was specifically averred that the said dependent has no job or income or avocation. It is not disputed that the dependent has started the flour mill after filing the Rent Control Petition. There is no evidence to prove that at the time of filing the Rent Control Petition the dependent has any job or income or avocation. In the absence of any kind of evidence to prove any job, income or

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avocation at the time of filing the Rent Control Petition, it cannot be held that the petitioner has suppressed material facts in the Rent Control Petition.

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10. Next, the question is, what is the effect and impact of the subsequent events on the bona fides of the need. The legal position stands well settled by the decision of this Court in Iritty Co-operative Hospital Society Limited v. C.C.Damodaran and another [2010 (4) KHC 368], wherein this Court held that only those subsequent events which completely eclipse the need projected by the landlord or those which have a fundamental impact either on the right of the landlord to get eviction or on the liability of the tenant to suffer eviction need be considered. As rightly observed by

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the court below, the subsequent acquisition of a new business to eke out income for livelihood during the pendency of the Rent Control Petition has no significance or fundamental impact, as the petitioner or the dependent, who filed Rent Control Petition, has a right to start several business to augment their income. In Kaniyattayil Azeez v. Kaniyattayil Muhammed [2014 (4) KHC 768], this Court held that there is no requirement that the landlord or dependent of the landlord should be seeking eviction, only when he is in dire need to generate income for his subsistence. In Balakrishnan v. Bachisoleemantakathathima [2014 KHC 3677], this Court held that starting a business or doing some trade subsequent to the filing of Rent Control Petition will not have any

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adverse consequence upon bona fide need. Even if any such business is started subsequent to the filing of eviction petition in another building, it will not have an impact upon the eviction petition or on the bona fide need pleaded by the landlord.

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11. In the light of the aforesaid decisions, we find that the subsequent starting of another flour mill after filing the Rent Control Petition has no fundamental impact on the need projected in the Rent Control Petition and there is no suppression of material facts in the Rent Control Petition as the starting of flour mill was after the filing of the Rent Control Petition. We do not find any kind of illegality or impropriety in the findings of

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the Appellate Authority that the need projected in the petition is bona fide. We do not find any reason to interfere with the findings of the court below.

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12. However, having regard to the facts and circumstances of the case, the revision petitioner is given seven months time from today to vacate the tenanted premises, on the following conditions:

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i. The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within seven months from today.

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ii. The respondent/tenant shall deposit the entire arrears of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default.

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iii. In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will

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stand automatically cancelled and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order.

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The rent control revision is dismissed

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accordingly.