Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 RCREV. NO. 32 OF 2020 AGAINST THE ORDER/JUDGMENTRCP 49/2014 OF PRINCIPAL MUNSIFF COURT , KOTTAYAM RCA 14/2015 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOTTAYAM / II ADDITIONAL MACT, KOTTAYAM REVISION PETITIONER/S:
SASI CHANDRAN AGED 69 YEARS S/O.KESAVAN, GURUMANDIRAM HOUSE, KOOTICKAL KARA, KOOTICKAL VILLAGE, KOTTAYAM BY ADVS.
SURIN GEORGE IPE SHRI.SREEDEV U RESPONDENT/S:
POTHEN VARGHESE AGED 42 YEARS S/O.K.P.VARGHSE, KAATHURUTHEL HOUSE, MUTTAMBALAM.P.O., MUTTAMBALAM VILLAGE, KOTTAYAM- 686004 BY ADV SRI.S.ANANTHAKRISHNAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19/12/2022, THE COURT ON 22.12.2022 DELIVERED THE FOLLOWING:
A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.
----------------------------------------- R.C.R.No.32/2020 ----------------------------------------- Dated this the 22nd day of December, 2022 J U D G M E N T A.Muhamed Mustaque, J.
The tenant, who is ordered to be evicted under Section 11(8) of the Kerala Building (Lease and Rent Control) Act, 1965 is before us with this revision. Section 11(8) relates to eviction for the need of the landlord if he is in occupation of a part of the building. The landlord is having a sanitary wear shop on the ground floor. The tenanted premises is on the upstairs. The landlord wants to expand his business by occupying the rooms now in the possession of the tenant. For a safer side, the need was projected under Section 11(3) on
R.C.R.No.32 of 2020 -:2:- the ground of bona fide need as well. The Rent Controller found that the need was projected as a ruse to evict the tenant. The Rent Controller noted a strained relationship between the landlord and the tenant. It appears that there was some dispute between the landlord and the tenant in regard to the parking area. The Rent Controller also found that the tenant had expended huge money for furnishing the tenanted premises and, on a comparative assessment of the advantages and the disadvantages found that, if an eviction is granted and on weighing the advantages that may be derived by the landlord, hardship will be more to the tenant. Accordingly, the Rent Controller dismissed the claim for eviction. In appeal, the appellate authority reversed the order of the Rent Controller and ordered eviction under Section 11(8). Taking note of the volume and the nature of
R.C.R.No.32 of 2020 -:3:- the business, the appellate authority was of the firm view that the need is bona fide and, having an additional room would allow the landlord to expand his present business. Though the appellate authority had not adverted much to the ill motives, it appears that the appellate authority was not persuaded to hold that the petitioner lacks bona fides while allowing the eviction petition.
2.
In this revision, an attempt was made by the tenant to adduce additional evidences by way of interlocutory applications Nos.1/2022 and 3/2022. As per I.A.No.1/2022, the revision petitioner tenant produced an advertisement in Malayalam daily. This advertisement would go to show that the building itself has been put up for sale. In I.A.No.3/2022, two documents have been produced, one is the screen shot of a bill board
R.C.R.No.32 of 2020 -:4:- to show that the building is put up for sale. The other is screen shot of website pertaining to GST details of the landlord. We are not able to admit the documents produced along with I.A.No.3/2022 as the same are in the nature of secondary evidence and we cannot admit these documents. Therefore, we dismiss I.A.No.3/2022. However, we allow IA.1/2022 being the original document of the advertisement produced before us and marked it as Ext.B21.
3.
The claim of the landlord cannot be doubted to hold that it lacks bona fide. Merely because there exist past dispute between the parties in regard to parking, that will not lead to a conclusion that the need of the landlord is ill motivated. The landlord is having an existing business.
The landlord has also produced sufficient documents to prove the same. In
R.C.R.No.32 of 2020 -:5:- counter to the claim of the tenant that the landlord has stopped business in the revision stage, the landlord produced additional documents along with I.A. No.2/2022. These are purchase tax invoices and sale bills etc. We are of the view that this application can be allowed and those documents can be marked as Ext.A11 to A19. These documents would show that the landlord is conducting business in the building in question.
The tenant appears to have another business as referred in Ext.A6. He has not adduced any evidence to show that the main source of income is from the existing business. The landlord has not disputed the advertisement appeared in the newspaper. In the counter it is stated that his wife, without his knowledge made an advertisement in a desperation to liquidate the property to discharge financial commitments. We are of the
R.C.R.No.32 of 2020 -:6:- view that merely because an attempt was made by the landlord's wife in a desperation to liquidate liability, it cannot be treated as a proof of a dishonest motive to evict the tenant. The landlord takes the stand that he needs the building for expanding his business. The factum that he continues the business itself would show that the attempt to sell also has not been materialised. The advertisement was on 22/1/2022.
On an overall circumstances, we find that the landlord has made out a case of eviction under Section 11(8) of the Act. The eviction ordered by the appellate authority warrants no interference and the revision petition is only to be dismissed.
4. Therefore, the revision fails and it is, accordingly, dismissed. However, the revision petitioner is granted three months time to vacate the building on the following conditions:
R.C.R.No.32 of 2020 -:7:- i.
The tenant shall file an undertaking that he will vacate the building on or before 22/3/2023, before the Rent Control Court within three weeks from today.
ii. The tenant shall clear the entire arrears of rent and continue to pay the rent till 22/3/2023. If there are arrears, it shall be cleared within one month from today. No order as to costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE Sd/-
SHOBA ANNAMMA EAPEN, JUDGE ms