Landlord sought tenant's eviction for arrears, bona fide need and building destruction. Appellate Authority upheld bona fide need but denied eviction via the second proviso to Section 11(3), as the tenant proved no suitable alternative building. The High Court found the findings well-founded and dismissed the revision petition.
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 AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946
RCREV. NO. 31 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 28.10.2021 IN RCA NO.18 OF 2019
OF ADDITIONAL DISTRICT COURT - IV, THIRUVANANTHAPURAM ARISING OUT
OF THE ORDER/JUDGMENT DATED 4.6.2019 IN RC(OP)NO.1 OF 2016 OF RENT
CONTROL COURT, THIRUVANANTHAPURAM
REVISION PETITIONER/APPELLABNT/PETITIONER:
SAROJAM
AGED 57 YEARS
D/O RAGHAVAN, CHITHIRA, TEACHERS COLONY,
SREENIVASAPURAM , VARKALA, THIRUVANANTHAPURAM-695 141
BY ADVS.
M.R.ANANDAKUTTAN
M.A.ZOHRA
MAHESH ANANDAKUTTAN
SHREEJI R. NAIR
RESPONDENT/RESPONDENT/COUNTER PETITIONER:
BEENA ROY
W/O SHAJI, SHEBIN LAND, SREENIVASAPURAM DESOM,
CHEMARUTHY VILLAGE, VARKALA TALUK,
THIRUVANANTHAPURAM-695 141
BY ADV R.S.KALKURA
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
11.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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ORDER
Amit Rawal, J.
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were sent seeking eviction. It was also alleged that the respondent - tenant has another shop room bearing No. CPXVI/506 situated 1km away.
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petition schedule shop room?
brought on record Exts.A1 to A9 and X1. Besides herself, she examined three more witnesses PW2, PW3 and PW4. On the other hand, respondent – tenant examined himself as DW1 and other three witnesses DW2, DW3 and DW4 and brought on record Ext.B1 to B4; B5; B5(a); B6 to B19 and X2 to X2(c). Learned Rent Controller on examination of the evidences, found that there was no bonafides in the claim and declined the eviction. The aforementioned order was assailed before the Appellate Authority vide RCA No.18/2019 by petitioner-landlord. Ground of personal necessity was upheld but rejected eviction by invoking second proviso to
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sub section 3 of section 11 of the Act as the respondent – tenant was able to discharge the onus with regard to non availability of suitable accommodation on rent in an adjoining area and dismissed the appeal.
I. The findings of the Learned Appellate Authority are fallacious for the reason that tenant failed to take the assistance of an Advocate Commissioner for pressing the second proviso to section 11(3). In absence of the same, the burden remained undischarged and therefore, the landlord was not required to lead any evidence in rebuttal.
II. There is no denial to the fact that the husband of the respondent – tenant is doing a business near the SN College Junction, therefore, the second proviso could not have been brought into force.
III. The second proviso could have only been brought
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into force, had the landlord been not able to comply with the first proviso. Bonafide need has to be examined from the angle of the landlord and not from the tenant. In other words, tenant cannot dictate the terms to the landlord. Filing of the suit was just a ploy to delay the adjudication of rent petition and create an evidence in favor of the tenant. If all these factors had been looked in cumulatively, appeal would not have been dismissed, thus there is an abdication.
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an additional to meet out the day to day expenses.
under:
“Section 11(3) A landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him:
Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special
RCREV. NO. 31 OF 2022
8
reasons, in any particular case it will be just and proper to do so:
Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available m the locality for such person to carry on such trade or business. Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument;
Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put m possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.”
RCREV. NO. 31 OF 2022
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10
livelihood mainly on the income derived from any trade or business carried on in the petition schedule building and there is no other suitable building available in the locality. It is the settled position that the burden is on the tenant to prove that she is entitled to get benefit of both the limbs of second proviso to Sec.11(3) and the landlord is not bound to plead that the tenant is not entitled to the benefit of the second proviso and it is sufficient if the contentions of tenant are suitably met by the landlord during evidence as laid down in Kurian.K.Kuriakose v. Usha Cheriyan reported in 2008
(1) KLT 739
13. The aforementioned findings in our considered
view are based upon the appreciation of both oral and documentary evidence. Tenant had been very fair and honest
RCREV. NO. 31 OF 2022
11
in the pleading by explaining that the business carried on by her husband in a different building was a contributory factor to run the family, but not a profitable business as the footfall of customer to the shop was very less. Landlord also failed to plead that the tenant had suitable building available in the locality in case the eviction is ordered. Once the aforementioned onus was discharged by the respondenttenant, landlord was enjoined upon an obligation to rebut the same either by taking the assistance of an Advocate Commissioner or through the testimony of other witnesses in the area to overcome the aforementioned objection. Having failed to do so, we are of the view that findings of the fact and law arrived at by both the courts below do not require any different interpretation in the absence of any illegality and perversity.
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petitioner – landlord to give the details of the arrears of rent to the respondent – tenant and on tallying the aforementioned accounts, the respondent – tenant if not able
to show the proof, will be liable to pay or, of a different period in case of any proof. In the absence of any dispute regarding the arrears, the landlord will be at liberty to claim arrears in accordance with law.
No ground for interference is made out. R.C.Rev. stands dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
nak
2 issues framed by the court
Whether the tenant discharged the onus under the second proviso to Section 11(3) of proving dependence on the premises and non-availability of a suitable building in the locality.
Whether the landlord's failure to rebut the tenant's evidence warranted eviction despite bona fide need.
Colour shows how this judgement treated each authority
Kurian K. Kuriakose v. Usha CheriyanRelied on¶12
2008 (1) KLT 739
2 provisions across 1 enactments
Sarojam
Beena Roy
Amit Rawal
Easwaran S.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court