Kerala High Court

Maya vs Maya on 18 February, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

             THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                 &

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                       RCRev..No.188 OF 2019

 AGAINST THE ORDER/JUDGMENT IN RCP 24/2011 OF ADDITIONAL MUNSIFF
                          COURT, KOLLAM

   AGAINST THE ORDER/JUDGMENT IN RCA 12/2016 OF III ADDITIONAL
                     DISTRICT COURT, KOLLAM


REVISION PETITIONER/APPELLANTS/RESPONDENTS:

      1      MAYA
             AGED 68 YEARS
             W/O. LATE GOPALA PILLAI,
             RESIDING AT REVATHI HOUSE,
             KAVANADU, KOLLAM-691001

      2      SAJI
             S/O. LATE GOPALA PILLAI,
             RESIDING AT REVATHI HOUSE,
             KAVANADU, KOLLAM-691 001

      3      SREYA LAKSHMI,
             D/O.LATE GOPALA PILLAI,
             RESIDING AT REVATHI HOUSE,
             KAVANADU, KOLLAM-691 001
             (MINOR) REPRESENTED BY FATHER SAJI

             BY ADV. SRI.B.MOHANLAL

RESPONDENT/RESPONDENT/PETITIONER:

             SHABINA SIDIQUE/SHABEENA
             AGED 54 YEARS
             D/O.AHAMMED KABEER, VENGOLA,
             VYPPAL NAGAR, KOTTARAM WARD,
             KOLLAM. 691001

             R1 BY ADV. SRI.V.PREMCHAND

     THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11-02-
2021, THE COURT ON 18-02-2021 PASSED THE FOLLOWING:
 R.C.R.No.188 OF 2019

                                       2


               A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ
                 -------------------------------------------------
                             R.C.R No. 188 of 2019
                            --------------------------------
                Dated this the 18th day of February 2021


                                O R D E R

P.V.KUNHIKRISHNAN, J.

Revision petitioners are the respondents in RC(OP) No.24/2011

on the file of the Additional Rent Controller, Kollam. The respondent

herein is the petitioner in the above Rent Control Petition. Rent

Control Petition was filed by the respondent under Sections 11(2)(b)

and 11(3) of the Kerala Buildings Lease and Rent Control Act, 1965

(for short 'the Act, 1965'). Hereinafter the parties are mentioned in

accordance with their rank before the Rent Control Court.

2. The case of the petitioner, in brief, is like this:- The

petition schedule building was taken on lease by Late P.K.Gopala

Pillai of Polayil veedu, Manayilkulangara, Kollam from the petitioner

after executing a rent deed in her favour on 22.04.1997.

Subsequently, Gopala Pillai died in 2008 and the 1st counter

petitioner who is his wife, and counter petitioners 2 and 3 who are

his children succeeded to his tenancy right. The petitioner R.C.R.No.188 OF 2019

contended that there is arrears of rent. The petitioner also

contended that she intends to start a business in readymade

garments for kids and ladies in petition schedule building. The

petitioner along with her sister, Shabeera Kalam wants to start a

business by making use of the petition schedule building and also

the adjoining room owned by her sister. Hence the petition under

Section 11(3) and 11(2) (b) of the Act, 1965 was filed.

3. The counter petitioners filed objections disputing the

averments in the petition. The counter petitioners contended that

there is no bonafide in the claim raised by the petitioner. The

counter petitioners also contended that the petitioner is in

possession of more than two vacant shop rooms in the same

locality. The counsel for the counter petitioners submitted that

tenants are entitled to the benefits of the proviso to Section 11(3) of

the Act, 1965.

4. To substantiate the case the petitioner herself was

examined as PW1. Exts.A1 to A4 were marked on side of the

petitioner. RW1 was examined on side of the respondents. Exts.B1

to B3 are the Exhibits marked on side of the respondents. Exts.C1

and C1(a) are the Commission Report. After going through the

evidence and the documents, the Rent Control Court allowed the R.C.R.No.188 OF 2019

petition and directed the respondents to surrender vacant

possession of the petition schedule shop room.

5. Aggrieved by the above eviction order the counter

petitioners filed an appeal before the Appellate Authority. The

appeal was considered by the Rent Control Appellate Authority (III

Additional District Judge), Kollam. The Appellate Authority

confirmed the eviction order and dismissed the appeal. Aggrieved

by the above, this Revision is filed.

6. Heard counsel for the petitioner and the respondents.

The Counsel for the respondents submitted that the orders of

eviction passed by the lower authorities are unsustainable. The

lower court has not considered the contention of the respondents

based on the proviso to Section 11(3) of the Act. The counsel for

the petitioner supported the eviction order passed by the lower

court and the counsel submitted that there is nothing to interfere

with the concurrent finding by the lower authorities.

7. After hearing both sides, we see no reason to interfere with

the impugned orders of eviction. The only point raised by the

counsel for the respondents is that the tenants are entitled to the

benefits of the first proviso to Section 11(3) of the Act. This point is

considered by both the courts in detail. The contention based on R.C.R.No.188 OF 2019

the first proviso to Section 11(3) of the Act 1965 by the appellate

authority is extracted hereunder:

"25. The burden of proof of establishing that the landlord has ownership and possession of another building in the same city, town or village is on the tenant, who claims the benefit of the first proviso. Existence of jointly owned building with other co-owners would not negative the right of the landlord to seek eviction u/s. 11(3). The respondent, in her petition stated that she is the owner of the rooms upstair of the petition scheduled room. It is occupied by tenants. There is no dispute between parties that the above rooms are occupied by tenants. The adjacent building belongs to the respondent and her sister. The old building in that property is under reconstruction after evicting the tenants. The construction of the building is not completed. It was constructed for the purpose of starting a hospital for the other co-owner, the sister of the respondent, who is a doctor. Respondent specifically stated that she has no other building owned by her in her possession in the city for starting a business. The appellants denied it. Appellants not proved that respondent landlord has another building of her own in her possession in the same city. Appellant also not proved that the property in which the building construction is in progress exclusively belongs to the respondent. So court below found that appellant is not entitled to the benefit of proviso to Section 11(3). Considering the law, the evidence and the arguments of both parties, I am of the view that there is no illegality in that finding of Court below. Appellant did not convince me that, conclusion of Court below is illegal. I find the conclusion of Court below is legal."

Similarly, contention based on the second proviso to Section 11(3)

of the Act, 1965 was also considered by the lower authorities. The

finding of the Appellate Authority on this point is extracted

hereunder:

"26. Second proviso to Section 11(3) says that Rent Control Court shall not give any direction u/s.11(3) 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 R.C.R.No.188 OF 2019

suitable building available in the locality for such person to carry on such trade or business. In order to get the benefit of the second proviso, the tenant has to prove that the income from the business is a substantiate one. If both these conditions are present simultaneously, the rent control Court can not order eviction on own use, though the landlord need the building for her bonafide needs. The burden of proof is on the tenant to prove that he is dependent on the income derived from the business in the demised premises and that there is no other building available in the locality to which he could shift his business. Suitability of alternate building means only reasonably suitable, certainly not identical with the building sought to be evicted. Here assertion by the tenant that there are no buildings available in the locality is not sufficient for shifting the burden of proof. The landlord is not under duty to mention in the petition that buildings are available in the locality for the tenant to shift by anticipating the case of the tenant."

8. We see no reason to interfere with the impugned eviction

order passed by the rent control court which is confirmed by the

Appellate Authority.

9. At this stage the counsel for the petitioner submitted that

the tenants may be given ten months to vacate the premises.

Admittedly the Rent Control Petition was filed in the year 2011.

Now almost ten years elapsed after filing the Rent Control Petition.

In such circumstances, we are not in a position to give ten months

to vacate the premises. Considering the facts and circumstances of

the case, we feel that six months can be granted.

10. Therefore, this Rent Control Revision is dismissed granting

six months to the counter petitioners/tenants for vacating the