IN THE HIGH COURT OF KERALA AT ERNAKULAM RCRev..No. 179 of 2008() 1. P.GOVINDAN, PULAPPADI HOUSE ... Petitioner Vs 1. K.C.REMANI AMMA,DWARAKA, ... Respondent For Petitioner :SRI.G.UNNIKRISHNON For Respondent : No Appearance The Hon'ble MR. Justice P.R.RAMAN The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :07/08/2008 O R D E R P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.179 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of August, 2008. O R D E R
Ramachandran Nair, J.
The tenant is the revision petitioner. Eviction was sought by the
landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease
& Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’). The Rent
Control Court allowed eviction under Section 11(3) of the Act and the same
stands confirmed by the Appellate Authority as per the judgment impugned.
2. Learned counsel for the petitioner mainly raised the following
contentions:- It was submitted that the Appellate Authority has not entered
clear findings as to the genuineness of the bonafide need, that there are no
bonafides, as the landlady was clamouring for enhanced rent which is
evident from the facts pleaded and that the time lag between the date of
issuance of notice and the filing of the Rent Control Petition will show that
the bonafide need pleaded is not genuine.
3. To appreciate the said argument, some basic facts are necessary to
be stated. The landlady pleaded that the monthly rent was originally
Rs.450/- which was raised to Rs.1,500/- from 1.6.2001 onwards. The
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landlady and her husband are unemployed and they are intending to start a
business in ready made garments by getting eviction of the petition schedule
room and the room let out to another tenant by name Vilasini. In the
objections, the tenant contended that the initial rent was Rs.210/- which was
raised to Rs.320/- and later, to Rs.450/-. The allegation that the rent was
enhanced to Rs.1,500/- is not correct. On the bonafide need, it was
contended that the landlady and her husband are having large extent of
properties and they are getting income from cultivation which is quite
sufficient to meet their requirements and the necessity now pleaded to start a
business is only a pretext for evicting the tenant. The tenant and his son are
running a medical shop in the schedule room and they are depending mainly
on the income derived from the business and the entire family is depending
upon the said business income for their livelihood.
4. The Rent Control Court found that the bonafide need pleaded is
genuine. It was found that the tenant failed to prove that the landlady has
got substantial income from the properties and actually there was no
evidence on that aspect adduced by the tenant. It was found that the
landlady and her husband are having no employment and hence the idea to
start a business was genuine. The said court rejected the contention that
the claim for enhanced rent and the delay in filing the eviction petition goes
against the bonafide need pleaded by the landlady. The explanation offered
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by the landlady that her husband was laid up for a long time which delayed
the filing of the Rent Control Petition, was also noticed by the Rent Control
Court. These findings have been confirmed by the Appellate Authority also.
5. It is well settled that periodical requests for enhancement of rent
will not show that the bonafide need pleaded is not genuine. The said legal
position is well settled by the various decisions of this court and that of the
Apex Court (Sukesini Amma v. Nagarajalu (2004 (2) KLT 427).
Therefore, the argument that the bonafide need pleaded is not genuine as
there was a demand for increasing the rent, cannot hold good and we reject
the same.
6. The other aspect pointed out by the learned counsel for the
petitioner is the delay in filing the Rent Control Petition which, according to
him, casts a doubt on the bonafide need. It is pointed out that the notice to
the tenant was issued in the year 2003, whereas the eviction petition was
filed only in the year 2006. Ext.A2 notice is dated 2.3.2003. In fact, both
the authorities have noticed that the landlady had deposed that her husband
was laid up due to paralysis and there was no effective cross examination
on that point. Apart from that, we notice that there is no plea by the tenant
that there had been change of circumstances in the meanwhile to doubt the
genuineness of the bonafide need. In the absence of any such plea and
evidence to support the same, we find that merely because there was delay
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in filing the eviction petition after the notice was issued, the need pleaded
is not bonafide. If, on an overall assessment of evidence it is found that it is
not a mere desire of the landlady and that the need pleaded is genuine, then
eviction can be ordered. Therefore, we reject the said contention also.
7. As we have noticed earlier, the tenant has failed to prove that the
landlady has substantial income from the properties in their possession. The
finding as to their income is only that they are getting Rs.3,100/- per month
as rent from the tenants to whom various rooms have been let out. The
above aspects will show that the need projected to start a business to
augment the income of the family, is clearly genuine. To start the business,
she intends to avail financial assistance from Bank. Even though learned
counsel for the petitioner contended that there is no clear finding on that
aspect by the Appellate Authority, we find that on a reading of the
judgment, that the Appellate Authority has, after analysing the evidence in
detail, entered a clear finding in para 8 that the demand made by the
landlady for the room to start a business in ready made garments appears to
be true and genuine. We are also satisfied that on the evidence available,
the bonafide need pleaded is genuine. The findings cannot be said to be
perverse.
8. Then, the other aspect is the benefit of the second proviso to
Section 11(3) of the Act. As far as this aspect is concerned, the authorities
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have found that the tenant has failed to prove that he is depending mainly on
the income from the business in the schedule property. It has also been
found that the landlady has discharged her burden to prove that there are
other buildings available in the locality. Learned counsel for the petitioner
submitted that Ext.B26 will show that the tenant had filed a petition before
the Accommodation Controller to get details regarding the rooms available
in the locality and thus the tenant has discharged his burden. We are not
impressed by the above argument, because P.W.1 has pointed out various
buildings available in the locality along with the names of the owners of the
buildings, but the tenant did not examine any of these persons as witnesses
or produce documentary evidence by way of assessment registers
maintained by the Panchayat, etc. to prove that the rooms as pointed out by
the landlady are not available. Thus, there is total failure on the part of the
tenant to discharge the burden of proof regarding that aspect also.
Therefore, as far as the said question is concerned, the finding rendered by
the Appellate Authority and the Rent Control Court does not require any
interference.
For all these reasons, we find that there is no ground to interfere with
the view taken by the Appellate Authority and we dismiss the revision
petition.
In the facts and circumstances of the case, we grant four months time
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from today to the petitioner to vacate the premises on condition that he files
an undertaking in the form of an affidavit before the Rent Control Court
undertaking to vacate the premises unconditionally on or before the expiry
of four months from today and also to pay the arrears of rent, if any, due
and continue to pay the monthly rent till the premises are vacated. The
affidavit shall be filed within three weeks from today. The petitioner shall
also deposit the entire arrears of rent, if any, within the aforesaid period of
three weeks and shall continue to pay an amount equivalent to the rent
payable, towards compensation for use and occupation, till possession
is surrendered. If any of the conditions aforesaid is violated, then the
order of eviction will become enforceable at once.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/