IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.UBAID THURSDAY, THE20H DAY OF FEBRUARY20141ST PHALGUNA, 1935 RCRev..No. 241 of 2011 ( ) --------------------------- AGAINST THE JUDGMENT
IN RCA82008 of ADDL.D.C. KOZHIKODE-III DATED2312-2010 AGAINST THE ORDER
IN RCP12007 of MUNI-MAGI.COURT, PERAMBARA DATED1411-2007 REVISION PETITIONER/APPELLANT/PETITIONER: ------------------------------------------------------ KALLAT KATHEESA, D/O.KUNHIMOITHEEN HAJI, AGED46YEARS, NADUKKANDIYIL ERAVATTOOR VILLAGE, KIZHINHANNIAM DESOM, P.O.PERAMBRA KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S)/RESPONDENT/RESPONDENT: ----------------------------------------------------- EDAPPARA KUNHAMMED, S/O.THARUVAYIKKUTTY, AGED56YEARS, EDAPPARA TRADERS, PERAMBRA MENHANNIAM AMSOM DESOM, P.O.PERAMBRA, KOYILANDY TALUK KOZHIKODE DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON0402-2014, THE COURT ON2002-2014 PASSED THE FOLLOWING: K.T.SANKARAN & P.UBAID, JJ.
----------------------------------------- R.C.R No. 241 of 2011 ------------------------------------------ Dated this the 20th day of February, 2014 ORDER
Concurrent findings of the Rent Control Court and the Rent Control Appellate Authority, against the revision petitioner herein in a proceeding for eviction brought under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') are under challenge in this revision brought by the landlady. The petition schedule building was entrusted to the respondent/tenant in 1991, and now the rent being paid by the tenant is Rs.725/- per month for the petition schedule building consisting of four rooms covering a total space of more than 500 sq.ft. The landlady filed R.C.P. No.1/2007 before the Rent Control Court/Munsiff Court, Perambra under Section 11(3) of the Act on contention that she needs the petition schedule building for starting a lady's fancy shop of her own, for her livelihood. Her further case is that she does not have any other building in her possession for the said R.C.R No. 241 of 2011 2 purpose, that the tenant is not solely dependent on the income derived from the business being conducted by him in the petition schedule building, and that so many vacant rooms are available in the same locality for shifting the business of the tenant, in case of eviction.
2. The respondent/tenant entered appearance and filed counter statement contending that the need alleged by the petitioner is in fact a ruse for eviction, she is not in fact in need of having a business of her own when she has income from other sources, that the income from his business, being conducted in the tenanted premises, is his sole source of income for livelihood, and that there is no vacant room in the locality for shifting his business.
3. On the basis of the pleadings, the trial court formulated the points for decision and the case proceeded for trial. During trial, the petitioner examined herself as PW1 and marked Exts.A1 to A6 on her side. The respondent/tenant and three other witnesses were examined on his side and Ext.B1 document was marked. On an appreciation of oral and documentary evidence, the trial court found that the need projected by the landlady is in fact bonafide, but she is not entitled to get an order of eviction under Section 11(3) of the Act for the reason that the tenant is entitled for the protection R.C.R No. 241 of 2011 3 under the 2nd proviso to Section 11(3) of the Act. The finding of the trial court is that the tenant's business in the tenanted premises is his only source of income, and that vacant rooms are not available in the same locality for shifting the tenant's business. Accordingly, the trial court dismissed R.C.P No.1/2007 by order dated 4.11.2007. Aggrieved by the dismissal of the eviction petition, the landlady filed appeal before the appellate authority (District Court, Kozhikode) as R.C.A No.8/2008. The tenant also filed a cross objection challenging the findings of the trial court that the landlady bonafidely needs the building for her own purposes. By judgment dated 23.12.2010, the appellate authority dismissed the rent control appeal and also the cross appeal brought by the tenant, on the finding that the trial court has made correct findings and decisions on the points in dispute. Now the concurrent findings of the authorities below are challenged by the landlady in this revision petition, where the scope of enquiry is only to find whether there is any illegality, irregularity or impropriety in the decisions and orders of the authorities below.
4. On an appreciation of the evidence adduced by the parties, we find no scope for interference in the findings of the authorities below on facts. The landlady examined as PW1, R.C.R No. 241 of 2011 4 has given definite and consistent evidence proving her case that she does not have any definite source of income, and that she is determined to start a business of her own in the petition schedule building, which is very convenient for such a business in lady's fancy goods. That the petitioner is a lady, or that some mediation talks were made pending the proceedings for enhancement of rent, or for purchase of the building by the tenant, cannot at all be a ground to doubt the genuineness of the claim made by the landlady. The landlady has been residing separately from her husband, with two daughters, as an abandoned wife, and nobody will dispute the fact that she wants a source of income of her own for her livelihood. It stands proved that she has the required capabilities and resources, and she has also men and relatives to help her in the proposed business. We do not find any reason to doubt the genuineness of the claim made by her, and we do not find any ground for interference in the findings of the courts below on facts as regards the bonafide need alleged under Section 11(3) of the Act, on the ground of any irregularity, illegality or impropriety. We find that the cross objection brought by the tenant was rightly disallowed by the appellate authority.
5. Now the very material question for decision is R.C.R No. 241 of 2011 5 whether the tenant in this case is entitled for the protection under the 2nd proviso to Section 11(3) of the Act. On a perusal of the case records including the materials brought in as evidence, we find that the landlady has no definite case, and there is also no definite evidence, that the tenant has any other source of income, or that the business being conducted in the tenanted premises is not his only source of income, or that he is solely dependant on the said business for his livelihood. On the other hand the respondent/tenant is definite in his evidence that he has no other source of income and that he is solely dependant on the income derived from the business being conducted in the tenanted premises. The evidence given by the tenant on this aspect is acceptable. Of course, the landlady has produced Exhibits A4 to A6 documents to prove her case that vacant buildings are available in the locality. As regards Ext.A6 document relating to seven rooms there is the definite finding on the basis of the evidence given by RW4 that those buildings mentioned in Ext.A6 document are occupied by different tenants, and that none of these rooms is available as vacant room. The evidence of RW4 stands not discredited. As regards the rooms mentioned in Exts.A4 and A5 documents also there is the evidence of RW3 that none of these rooms is available now as R.C.R No. 241 of 2011 6 vacant, and that all these rooms are occupied by different tenants. Of course, it is true that the burden is on the tenant to prove the protection under the twin limbs of the 2nd proviso. In discharge of the initial burden, the landlady produced Exts.A4 to A6 documents to substantiate her case that vacant rooms are available in the locality. But it stands proved by the evidence of RW3 and RW4 that all these rooms are occupied by different tenants. The landlady has no case that any other room or building than those covered by Exts.A4 to A6 documents is available as vacant room in the locality. In the above circumstances, we find that both the authorities below have come to the right finding that the tenant in this case is entitled for the protection of the 2nd proviso to Section 11(3) of the Act.
6. In the light of the above findings this revision is liable to be dismissed. The landlady cannot be granted an order of eviction, when the 2nd proviso to Section 11(3) of the Act stands in the way. We do not find any ground for interference in revision, in the concurrent findings of the authorities below, and we do not find anything erroneous, or anything illegal or irregular in the findings of the authorities below.
7. During the arguments in this revision petition, we R.C.R No. 241 of 2011 7 thought of resolving the dispute between the parties amicably, and accordingly we ascertained from both sides whether enhancement in rent will resolve the dispute for the time being. Of course, dismissal of the revision petition will do justice according to law, but we thought of doing some practical justice by way of resolution of the dispute amicably.
8. Learned counsel for the revision petitioner submitted that the landlady would consent for enhancement in rent if a reasonable amount, which she could otherwise expect from the proposed business, is offered by the tenant. In reply the learned counsel for the tenant/respondent submitted that the tenant is prepared to pay a reasonable amount of rent, and he made request to the court to fix the reasonable rent.
9. The petition schedule building was let out in the year 1991, and now we are in 2014. Nobody would dispute the fact that the present rate of rent requires considerable enhancement. We thought of doing justice to the landlady under some consensus arrangement, without doing any injustice to the tenant and without causing any hardship to him. On a consideration of the relevant aspects including the number of shop rooms, the total area covered by the four rooms, the commercial importance and prospects of the locality, and also the prospects of the tenant's business in the R.C.R No. 241 of 2011 8 premises, we think that ten times enhancement on the present rate can be made, and the tenant can be made liable for payment of Rs.7500/- per month from January 2013 onwards. Of course, it is true that there is no claim for enhancement of rent. But with the object of doing justice to the parties, and also with the object of resolving the dispute for the time being, we thought of making some enhancement in the amount of rent. At the same time, we would make it clear that this arrangement will not prejudice the right of the landlady to apply for eviction on change of circumstances, and also to make request before the proper forum for periodic enhancement, as and when reasons and necessities arise. Thus even while disposing of this revision petition by an order of dismissal we would like to make some orders regarding the rate of rent, on consent of both the parties. In the result, this revision petition is dismissed, subject to the following orders and conditions: i) The monthly rent for the petition schedule building is enhanced to Rs.7500/- per month, payable by the respondent/tenant with effect from January 2014, subject to periodic enhancement, but after one year from this date, as and when reasons and necessities arise for enhancement by judicial process. R.C.R No. 241 of 2011 9 ii) Enhancement in rent made hereby, and also the dismissal of the revision petition, will not prejudice the right of the landlady to apply for eviction on change of circumstances regarding the availability of other vacant buildings or rooms for shifting the business of the respondent/tenant. Such availability shall be decided as on the date of filing of the petition. iii) The above orders regarding the rate of rent will not stand in the way of the landlady seeking appropriate remedies under the law, which are otherwise available to her under the law. iv) Both the parties will honour the above orders, subject to the restrictions made hereby, in Clause (i) to (iii). v) The parties will bear their respective costs of the whole proceedings. Sd/- K.T.SANKARAN JUDGE Sd/- P.UBAID JUDGE ab /True copy/ P.A to Judge