Kerala High Court
Thattankandil Baburaj vs K.Vasantha on 11 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA,
1944
RCREV. NO. 27 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 17.10.2018 IN RCA NO.2
OF 2015 OF ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, THALASSERY CONCURRING WITH THE
COMMON ORDER IN RCP NO.168 OF 2013 DATED 31.10.2014 OF
MUNSIFF COURT, THALASSERY
REVISION PETITIONER/APPELLANT/REPONDENT:
THATTANKANDIL BABURAJ,
AGED 53 YEARS, S/O.GOPALAN, GOLD SMITH,
MOKERI AMSOM, DESOM, P.O.MOKERI, THALASSERY.
BY ADVS.
R.PARTHASARATHY
SRI.RAJESH V.NAIR
RESPONDENT/RESPONDENT:
K.VASANTHA,
AGED 63 YEARS, W/O.BALAN, HOUSE WIFE, RESIDING
AT MANGALODHAYAM, VELLUPARAMBATH, PANOOR AMSOM,
DESOM, P.O.PANOOR, THALASSERY TALUK.
BY ADV SRI.C.K.SREEJITH
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.C.Rev No.27 of 2019 2
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
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R.C.Rev. No.27 of 2019
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Dated this the 11th day of January, 2023
ORDER
P.B.Suresh Kumar, J.
The tenant in a proceedings for eviction under
Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and
Rent Control) Act, 1965 (the Act) has come up in this revision
petition challenging the order of eviction passed against him as
also the judgment affirming the same in appeal.
2. The subject matter of the proceedings is a
premises taken on lease by the tenant from the landlady for
conducting jewellery business. There are a few other rooms as
well in the building of which the tenanted premises is a part. It
was alleged by the landlady in the eviction petition that the
tenant is not paying rent from the year 2012 onwards and that
she needs the premises for starting a ladies tailoring shop. It is
stated in the eviction petition that the landlady does not have in
her possession any other premises where she could conduct
the proposed business. It is also stated by the landlady in the
eviction petition that her son who is also a co-owner of the
premises, is doing stationery business in the only vacant
premises in her possession in the building. It is on the aforesaid
basis that the landlady sought eviction of the tenant under
Sections 11(2)(b) and 11(3) of the Act. The tenant raised
objections in the proceedings contending, among others, that
rent is not in arrears and that the need set out by the landlady
for eviction is not bona fide. According to the tenant, the
landlady has in her possession other vacant premises, if at all
she wants to set up a ladies tailoring shop and that she does
not have any experience in the ladies tailoring business.
3. The Rent Control Court repelled the contentions
of the tenant and ordered eviction under both heads, holding
that the rent of the premises is in arrears; that the need set out
by the landlady is bona fide and that the landlady is not in
possession of any other premises where she could carry on the
proposed business. The tenant challenged the decision of the
Rent Control Court in appeal. After the disposal of the eviction
petition, the landlady instituted a proceedings for eviction of
another tenant in the very same building as R.C.P No.77 of
2016 for starting a DTP Computer centre for her son. A copy of
the eviction petition in R.C.P No.77 of 2016 which was produced
by the tenant in the appeal was accepted in evidence by the
Appellate Authority as Ext.B5. It is also stated by the landlady in
the eviction petition in R.C.P No.77 of 2016 that in one of the
rooms in the same building, she is conducting stationery and
cool drinks business. On the basis of the said averment, it is
seen that the tenant has argued before the Appellate Authority
that the case set out by the landlady that she has no avocation
and that she therefore needs the premises for conducting ladies
tailoring shop, cannot be accepted as a bona fide need. The
Appellate Authority affirmed the decision of the Rent Control
Court, rejecting the said contention. As noted, the tenant is
aggrieved by the concurrent decisions of the authorities below.
4. Heard the learned counsel for the tenant as
also the learned counsel for the landlady.
5. The learned counsel for the tenant took us
through the averments in the eviction petition in R.C.P No.77 of
2016 as also the averments in the eviction petition from which
the revision petition arises and contended persuasively that the
averments in the eviction petitions are mutually destructive and
the authorities below ought to have, therefore, held that the
claim of the landlady that she needs the premises for setting up
a ladies tailoring business is not bona fide. It was also argued
by the learned counsel, placing reliance on the decision of the
Apex Court in Hasmat Rai v. Raghunath Prasad, (1981) 3
SCC 103 that in order to sustain a claim for eviction on the
ground of bona fide need, the requirement must continue
throughout the progress of the proceedings and must exist on
the date of passing of the decree and in the case on hand, the
averments in the eviction petition, R.C.P No.77 of 2016 would
show that the requirement of the landlady does not exist.
6. We have examined the contention raised by
the learned counsel for the tenant.
7. Before proceeding to deal with the argument
advanced by the learned counsel for the tenant, it is necessary
to remind ourselves as to the scope of the jurisdiction of this
Court under Section 20 of the Act. It is well settled that the
jurisdiction of this Court under Section 20 of the Act is only to
ensure that the decisions of the authorities below do not suffer
from any illegality, irregularity or impropriety. This Court
cannot, therefore, re-appreciate the evidence on record in order
to come to a different conclusion on any factual issues, unless
the findings can be said to be either erroneous or perverse. It
has been held by the Apex Court in Hindustan Petroleum
Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 that only
findings of facts which have been arrived at without
consideration of the material evidence, or findings which are
based on no evidence or misreading of the evidence, or findings
which, if allowed to stand, would result in gross miscarriage of
justice, alone could be said to be erroneous or perverse,
warranting correction under Section 20 of the Act.
8. Let us consider the argument advanced by the
learned counsel for the tenant keeping in mind the principles
aforesaid. True, it is stated by the landlady in the eviction
petition that she does not have at present any avocation; that
the one vacant room which is in her possession is used by her
son for conducting stationery business and that she, therefore
needs the premises for starting a ladies tailoring business.
Similarly, it is seen that it is stated by the landlady in R.C.P
No.77 of 2016 that she is conducting stationery and cool drinks
business in the only room which is in their possession and that
the income from the said business is the only source of income
for her family. We do not find any inconsistency in the
pleadings in the eviction petitions which would in any manner
affect the bona fides of the need set out by the landlady in the
present proceedings. The relevant pleading of the landlady in
the eviction petition reads thus:
"Now the petitioner is at present no avocation she bonafidly
require this building for starting a ladies tailoring shop by
employing proper persons. The one vacant building which is in
her possession is used by his son who is also a co-owner is
conducting stationary business."
The relevant pleading of the landlady in R.C.P No.77 of 2016
reads thus:
"The petitioner further begs to submit that the petition schedule
building is bonafidely require for starting a DTP Computer center
for her son Sreejith. He has completed his B.com decree and he
has undergoing computer courses. He is at present unemployed
and has no avocation. Sreejith is depending on the petitioner for
the above room to start the above business. The petitioner or her
son Sreejith did not have any vacant building in their possession.
In one room petitioner herself is conducting stationery and cool
drink business which is the only income for her family."
A combined reading of the pleadings aforesaid would indicate
that the landlady and her son are conducting stationery and
cool drinks business in the only room in her possession and that
they want the premises involved in the proceedings also, one
for the landlady to start a ladies tailoring shop and the other for
her son to start a DTP Computer Centre. Merely for the reason
that the landlady is running along with her son a stationery and
cool drinks business in the premises, it cannot be said that her
need to start a ladies tailoring shop is not bona fide. One who is
having a business may start another business also to augment
his/her income, and we fail to understand as to how the same
would affect in any manner the bona fides of the need set out
by the landlady, as it is by now settled through a catena of
decisions that what is to be seen by the Court in a proceedings
of the instant nature is as to whether the need set out is
natural, real and genuine. If it is found that the need is natural,
real and genuine and not a ruse for eviction of the tenant, it has
to be accepted as bona fide. There is no substance in the
argument advanced by the learned counsel for the tenant,
based on the decision of the Apex Court in Hasmat Rai (supra)
also, as merely for the reason that the landlady is running a
business of stationery and cool drinks in another premises
along with her son, it cannot be said that the need set out for
eviction does not exist. In the circumstances, we do not find any
illegality, irregularity or impropriety in the decisions of the
authorities below.
In the result, the revision petition is dismissed. The
tenant, however, is granted six months' time from today to
surrender vacant possession of the premises on condition that
he shall file an unconditional undertaking before the Rent
Control Court within two weeks from the date of receipt of a
copy of this order to vacate the tenanted premises within six
months and also that he shall pay the arrears of rent, if any,
within the aforesaid time limit and continue to pay the monthly
rent on or before the tenth day of every succeeding month till
he vacates the premises.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
YKB
