Dismissed

Ittimathew, v. Rosily

Kerala HC13 Feb 2019RCRev./58/2019

Case brief

AI extract

What is this about?

High Court Kerala dismissed the revision petition against an eviction order under Section 11(3). The tenant failed to prove unavailability of alternative premises and discharge the burden of proof regarding the landlord's bona fide need. The court granted a six-month period for eviction subject to conditions.

What did the court decide?

Eviction granted; tenants given six months to vacate subject to depositing arrears and filing an affidavit of undertaking.

Ittimathew, Vs Rosily — Landlord and Tenant | Kerala HC (2019)

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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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WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940

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RCRev..No. 58 of 2019

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AGAINST THE ORDER/JUDGMENT IN RCA 45/2011 of II ADDITIONAL DISTRICT COURT, THRISSUR DATED 30-10-2018

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AGAINST THE ORDER/JUDGMENT IN RCP 24/2007 of PINCIPAL MUNSIFF COURT,THRISSUR DATED 22-12-2010

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REVISION PETITIONER/S:

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1. ITTIMATHEW, S/O.CHEERANVEETTIL CHERU, MISSION QUARTERS, THRISSUR DESOM, TALUK, VILLAGE, (DIED)

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2. OMANA, W/O.ITTIMATHEW, CHEERANVEETTIL, CHEMPUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK.

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3. LINCY, D/O.ITTIMATHEW, CHEERAN HOUSE, CHEMPUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK.

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4. SHINY, D/O.ITTIMATHEW, CHEERAN HOUSE, CHEMPUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK.

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5. NEENA, D/O.ITTIMATHEW, CHEERAN HOUSE, CHEMPUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK.

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6. SUJO, D/O.ITTIMATHEW, CHEERAN HOUSE, CHEMPUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK.

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R.C.R.No.58/2019

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7. JOCY CHEERAN, S/O.ITTIMATHEW, CHEERAN HOUSE, CHEMPUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK.

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8. SHAJI CHEERAN, S/O.ITTIMATHEW, CHEERAN HOUSE, CHEMPUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK.

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BY ADV. SRI.A.R.GEORGE

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RESPONDENT/S:

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1. ROSILY, W/O.NEDUMBILLY CHANDU, MISSIONS QUARTERS, CHEMPUKAVU VILLAGE, THRISSUR TALUK-680 020.

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2. CV DAVY, PROPRIETOR, NOBLE TRADERS, NEAR METHER STREET, BROADWAY, ERNAKULAM, COCHIN-682 031.

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BY ADV. SRI.AJITH VISWANATHAN

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

R.C.R.No.58/2019

O R D E R

K.Harilal, J.

The revision petitioner is the tenant, who is confronting with an order of eviction passed under Section 11 (2) and 11(3) of the Building (Lease and Rent Control Act) against him. The parties are referred to as in the Rent Control Petition.

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The petitioner filed R.C.P.No.24 of 2007 before the Rent Control Court, Thrissur seeking an order of eviction under Section 11(2) and 11 (3) of the Act. According to the petitioner, the rent was in arrears and she bona fide needs the petition schedule shop room for starting business of ready made garments. The respondent resisted the claim for eviction contending that the need projected in the petition is not bona fide and it is for eviction only.

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According to the respondent the petitioner is

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aged 64 years and she has several other sources of

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R.C.R.No.58/2019

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income for her livelihood. She has other vacant rooms in her possession to start her proposed business. The respondent is entitled to get protection under the second proviso as no other buildings are available in the locality and he is depending on the income derived from the business conducted in the petition schedule shop room.

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Both parties adduced evidence on the said pleadings. The Rent Control Court passed an order of eviction under Section 11(3) of the Act, directing the respondent to put the landlord in possession of the petition schedule property. In appeal the Appellate Authority also confirmed the said finding.

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Heard the learned counsel for the petitioner and the learned counsel for the respondent. The sum

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and substance of the argument advanced by the learned counsel for the petitioner is that the court below has

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not considered the bona fides of the need in its correct perspective in view of the evidence on record and the concurrent findings of the court below under

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R.C.R.No.58/2019

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the second proviso to Section 11(3) are perverse, warranting interference of this Court.

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Going by the impugned order, we find that the Appellate Authority specifically held that at the time of hearing the learned counsel for the respondent has confined to his arguments only to the second proviso to Section 11(3) only. In paragraph 13 also again the Appellate Authority reiterated that the respondent has no dispute regarding the bona fide need claimed by the landlord in appeal. In the ground stated in the memorandum of revision petition also the respondent has

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no case that the said finding of the Rent Control

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Appellate Authority is not correct or no opportunity was given to them to challenge the findings of bona

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fide need and the first proviso in appeal. In the

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absence of such a ground in the memorandum of revision petition, we do not find any reason to disbelieve the

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observation made by the Rent Control Appellate Authority in the impugned judgment. A contention which

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was not raised in appeal cannot be raised in a

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revision, while considering the legality and propriety of the findings of the courts below. Thus, we find that

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the scope and extent of consideration in this revision petition are confined to legality and propriety of the findings of the courts below on second proviso to Section 11(3) of the Act.

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Coming to the second proviso, it is needless to

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say, both limbs of the 2^nd proviso to Section 11 (3) are conjunctive and burden of proof is on the tenant. Going by paragraph 18 of the impugned judgment, it can be seen that the Appellate Authority has considered the

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entire evidence on record in respect of the facts pertaining to second proviso. The respondent was examined as RW1 and it is the sole evidence available on record from the part of the respondent under the 2^nd

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proviso to Section 11(3) of the Act. While RW1 was cross-examined in evidence he admitted that he is

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paying income tax, sales tax etc. and he is keeping all documents like ledger, day book etc. But none of those documents were produced in evidence to prove exact

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income of the respondent from the business in the tenanted premises.

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In the above context, decision of this Court in Shahul Hameed v.Abdu Razak [2016 (5) KHC 820] deserves relevancy and significance. In the aforesaid decision this Court held that it is for the tenant to produce evidence to prove his exact income from the business in the tenanted premises before this Court and the tenant who is hiding his income from the court is not entitled to get protection under the second proviso to Section

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11(3) of the Act. In the light of the aforesaid decision, it can be concluded that the petitioner has failed to discharge the burden of proof under the first limb of the second proviso.

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When coming to second limb of second proviso no

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evidence has been adduced by the respondent to prove the non availability of other alternative buildings in the locality. On the other hand, the landlord has

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taken a commission to ascertain and report the

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availability of vacant and suitable other buildings in

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the locality and in Ext.C1 report Advocate Commissioner has reported that several other buildings are available in the locality for taking on rent. In the above view, we find that the respondent has failed to discharge the

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burden of proof under the second proviso. We do not

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find any illegality or impropriety in any of the findings, whereby courts below granted an order of eviction under Section 11(3) of the Act. Hence, this revision petition fails and dismissed accordingly.

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The learned counsel for the respondent thus sought for one year time to evict the tenanted premises. Having regard to the submission at the Bar and the fact that the R.C.P was filed in the year 2007, the petitioner is given six month's time from today to evict the tenanted premises on following conditions:

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i) The respondents 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 six months, from today.

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ii) The respondents/tenants 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 stand automatically cancelled and the 1^st petitioners/landlords will be at liberty to proceed with the execution of the eviction order.

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The rent control revision is dismissed accordingly.

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Sd/-

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K.HARILAL

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JUDGE Sd/ANNIE JOHN JUDGE

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R.C.R.No.58/2019 10

Ittimathew, v. Rosily

Case brief

What is this about?

What did the court decide?

Ittimathew, v. Rosily

Case brief

What is this about?

What did the court decide?

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