The High Court dismissed a revision petition against an eviction order. It held that age and inexperience do not negate bona fide business needs and that the tenant failed to prove sole dependence on tenanted premises income.
Interim order granting eight months' time for vacating possession subject to compliance conditions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943
R.C.REV.NO. 63 OF 2021
AGAINST THE JUDGMENT DATED 04.02.2019 IN R.C.A.NO.104 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), THALASSERY AND THE ORDER DATED 29.02.2016 IN R.C.P.NO.28 OF 2014 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), KANNUR
REVISION PETITIONER:
LANGULATH VAZHAYIL NISAR AGED 53 YEARS, S/O.MUSTHAFA, RESIDING AT SAMEERA'S, HAJI ROAD, KANNUR - 670 001.
BY ADV K.RAJESH SUKUMARAN
RESPONDENTS:
7 SUMA, AGED 58 YEARS, D/O.JANAKI AMMA, (ALL THE RESPONDENTS ARE RESIDING AT PARAPURATH PUTHIYAPURAYIL, CHIRAKKAL AMSOM DESOM, P.O.ALAVIL, KANNUR - 670 008).
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8 K.RAJEEV,*
S/O. LATE ROHINI, AGED 65 YEARS,RESIDING AT KALATHIL HOUSE, PALLIYAMOOLA. P.O, ALAVIL, KANNUR -670008.
9 AJITHA K.P*
D/O. LATE ROHINI, AGED 63 YEARS, RESIDING AT VELLUVAKANDY HOUSE, P.O. VALAPATTANAM, MANNA, KANNUR -670010.
*ADDL RESPONDENTS R8 & R9 BEING THE LEGAL HEIRS OF THE DECEASED IST RESPONDENT ARE IMPLEADED AS PER THE ORDER DATED 11/11/2021 IN I.A.NO.3 OF 2021 IN R.C.REV.NO.63 OF 2021)
BY ADVS.
LIJIN THAMBAN
G.S.KRISHNAN KARTHA
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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O R D E R
Ajithkumar, J.
This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 was filed by the petitioner-tenant. The respondents filed a petition for eviction under Section 11(3) of the Act before the Rent Control Court (Additional Munsiff), Kannur as R.C.P.No.28 of 2014. That R.C.P. was allowed. The petitioner filed R.C.A.No.104 of 2016 under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-I), Thalassery. The appeal was dismissed. Feeling aggrieved of the judgment in R.C.A.No.104 of 2016, this revision was filed.
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daughter and son-in-law are well placed and there is no reason or purpose for the 5th respondent to start such a business. But the authorities below did not consider the matter in the proper perspective and ordered eviction on an erroneous understanding of the facts and the law. The learned counsel also contended that the petitioner is entitled to get the benefit of the second proviso to Section 11 of the Act, but that claim was also erroneously declined.
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unemployed and her daughter and son-in-law having been away, working in the State of Madhya Pradesh, she wanted to start a fancy shop in the petition schedule shop room. She denied the assertion of the petitioner that her daughter and son-in-law are well placed. However, she admitted that both of them are employed. The said evidence was considered by the authorities below in detail and come to the conclusion that the need urged by the 5th respondent, who is one of the landlords, is bonafide and genuine.
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court held that old age or affluency cannot be taken as a ground to doubt the bona fide need to start a new business, particularly when the respondent has no case that the petitioner is physically weak or disabled. "Where there is a will, there is a way". Therefore, the need was held to be bona fide, irrespective of the old age or affluency.
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experience in the business is not a precondition.
'49. In Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465] a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line
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of decisions and the courts below have rightly placed reliance upon those decisions. Vide: Narayanan Nair v. Pachumma [1980 KLT 430], Prasannan v. Haris [2005 (2) KLT 365], Vineethan v. Fathima and others [2016 (1) KHC 631]. In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant.
That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatsoever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal
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provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act.'
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petition schedule shop room. In the absence of any documentary evidence with regard to the income being derived by the petitioner from the business, his oral testimony alone is not enough to find that his sole source of income is the said business. As regards non-availability of buildings/rooms for availing on rent in the locality also, there is no evidence. Considering that evidence, we are of the view that the authorities below correctly had held that the petitioner failed to prove his entitlement to get the benefit of the second proviso to Section 11(3) of the Act.
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necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant six months’ time.
(i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the petitioners-landlord within eight months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further that he will conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities;
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(iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioners-landlord will be at liberty to proceed with the execution of the order of eviction.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
3 issues framed by the court
Whether age and inexperience disqualify a landlord from claiming bona fide need for eviction to start a business.
Whether a tenant must prove income solely from the tenanted premises to resist eviction under the second proviso to Section 11(3).
Whether the High Court should interfere with the eviction order on grounds of illegality, irregularity, or impropriety.
Colour shows how this judgement treated each authority
Sunny Padamadan Rafael @ Sunny Padamadan v. Vijaya SheonyReferred¶44
Sunny Padamadan Rafael @ Sunny Padamadan v. Vijaya Sheony [2019 (2) KHC 90]
Mohinder Prasad Jain v. Manohar Lal JainExplained¶48
Mohinder Prasad Jain v. Manohar Lal Jain [(2006) 2 SCC 724] · Who else cites this
George T.I. v. K.L.StanleyRelied on¶52
George T.I. v. K.L.Stanley [2013 (4) KHC 543]
T.P.Gireeshbabu v. JameelaRelied on¶54
T.P.Gireeshbabu v. Jameela [2021 KHC 650]
Ammeer Hamsa v. Ramabhadran and anotherExplained¶55
Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]
2 provisions across 1 enactments
Langulath Vazhayil Nisar
Rohini
Soundimini
Shylaja
Rajendran
Neena
Anil K. Narendra
P.G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
