Judgment:
K. Ramakrishnan, J.
1. R.C.R.No.237/2014 was filed by the tenant while R.C.R.No.283/2014 was filed by the landlord in R.C.P.No.55 of 2010 on the file of the Rent Control Court, Kollam. For the purpose of convenience, we are referring the status of the parties as 'landlord' and 'tenant' in these revisions.
2. The landlord filed the application for eviction on the ground of arrears of rent, bonafide need and subsequent acquisition of building by the tenant under Section 11 (2)(b), 11(3) and 11 (4)(iii) of the Kerala Building Lease and Rent Control Act (hereinafter called the Act ). The case of the landlord was that the petition schedule building belongs to him and it was let out to the respondent by their mother on a rent of Rs.950/- and thereafter it was enhanced to Rs.1,550/- per month. The tenant paid rent up to August 2008 and thereafter kept the rent in arrears. The mother of the petitioner died and the petitioner and his sisters became the legal heirs of their mother and became the joint owners of the petition schedule building and the other legal heirs have relinquished their right over the property in his favour as per Sale Deed No.6080/2010 dated 6.11.2010 of Kundara Sub-Registrar's Office and he has become the sole owner of the petition schedule building. The respondent is conducting textile business in the petition schedule building and he had constructed a house near his own house and doing his present business there. It is situated half a kilometer away from the petitioner's building and he is not earning out his livelihood from the business conducted in the petition scheduled building and he has got sufficient space in the newly constructed building for conducting the business. The petitioner is a retired Administrative Officer from Kerala State Road Transport Corporation and he is without any employment and he intended to start a business in household articles in the petition scheduled building. The petitioner sent a notice to the tenant to vacate the premises stating these reasons, but he did not sent any reply. He had not vacated the premises as well. He has got sufficient experience and resource to start the business. Further he had also stated that the petition scheduled building is close to his residential building and if a door is provided on the southern wall of the building, he can have entrance to the petition scheduled building from his house and that will be convenient for him to conduct the business as well. So the petitioner filed application for eviction under Section 11 (2)(b),11(3) and 11 (4)(iii) of the Act.
3. The respondent filed counter contending as follows:
At the time when the application was filed, he has not become the owner of the property and he is only a co-owner and without juncture of others, the petitioner is not entitled to maintain an application for eviction. He had also contended that he is not in possession of any building and the property belong to one, Annie John. He had also submitted that he is conducting a textiles business in a building and he is solely depending on the income derived from the business that is being conducted in the petition schedule building. The allegation that the rent was kept in arrears was not correct. He had sent a reply notice stating that he is willing to pay the rent and wanted the landlord to furnish the bank account in which the amount had to be deposited. But no reply was sent to the same by the landlord and that was how the rent happened to be in arrears. Since he is solely depending on the income derived from the business, he is not liable to be evicted from the petition scheduled building. Thereafter, he had amended the counter statement stating that after the filing of the petition, the landlord had come into possession of another building. Further, he is also having a building behind the petition scheduled building which he is using it as a godown and that can be converted into a shop room wherein he can conduct the intended business. So there is no bonafides on the part of the petitioner in filing the application. He also denied the bonafide need alleged. According to him, the landlord is a wealthy person and there is no necessity for him to start a business and the intention to start a business is put forward only as a ruse for eviction. So he prayed for dismissal of the application.
4. The petitioner in the Rent Control Court was examined as PW1 and Ext.A1 to A4 were marked on his side. The tenant was examined as RW1 and Ext.B1 to B9 were marked on his side. The Commissioner was examined as CW1 and Exts.C1 and C1 (a) were marked throught Court witness as Court documents. After considering the evidence on record, the court below though raised a point as a ground for eviction under Section 11 (2) of the Act, the same was not answered. No point for consideration was raised regarding the ground for eviction under Section 11 (4)(iii) of the Act, though eviction was sought on that ground as well. Further after considering the evidence, the court below only answered the question of bonafide need alone and came to the conclusion that the landlord is a wealthy person and he has no prior experience in conducting the business and held that the bonafide need alleged was not genuine and found that the tenant is earning out his livelihood from the income derived from the business conducted in the petition scheduled building and thereby he is entitled to get the second proviso protection under Section 11 (3) of the Act and dismissed the application without answering the ground for eviction under Section 11 (2) (b) and 11 (4)(iii) of the Act.
5. Aggrieved by the order of dismissal of the rent control petition, the landlord filed R.C.A. No.3/2013 before the Rent Control Appellate Authority, Kollam which was made over to Additional Rent Control Appellate Authority for disposal and by judgment dated 15.7.2014, the Rent Control Appellate Authority allowed the application under Section 11 (2)(b) and 11 (3) of the Act but dismissed the application under Section 11 (4)(iii) of the Act. Aggrieved by the order allowing of the application under Section 11 (2)(b) and 11 (3) of the Act, the tenant preferred R.C.R.No. 237 of 2014 and aggrieved by the order of dismissal of the application under Section 11 (4)(iii), the landlord filed R.C.R.No. 283 of 2014. Since both these revisions arose out of the same judgment, we are disposing the revisions by a common judgment.
6. Heard Sri.S.V.Balakrishna Iyer, Senior counsel appearing for the landlord and Sri.Suresh Kumar, learned counsel appearing for the tenant.
7. The Senior Counsel appearing for the landlord submitted that the Rent Control Court did not even raise the point for consideration regarding the question of eviction sought under Section 11 (4)(iii) of the Act and even though a point for consideration was raised under Section 11 (2) (b), that was not answered. Further, though in the petition, the landlord had specifically mentioned that the tenant had constructed a building and started his business in textile in that room, but later after getting a notice, he closed down the business, that aspect was not denied in the counter statement. Further the Appellate Court did not also appreciate the question of eviction under Section 11 (4)(iii) of the Act and as such that aspect has to be interfered by this Court. The learned Senior Counsel also submitted that there is no interference called for on the question of order of eviction under Section 11 (3) of the Act as the Appellate Court had considered all the aspects in detail.
8. On the other hand, the learned counsel for the tenant submitted that the landlord is in possession of a room behind the line room in which the petition scheduled building is a part where earlier, one Chellappan had conducted a restaurant and after surrendering the building by Chellappan, the landlord is using the same as a godown which can be converted into a shop room and the present business can be started there. He had also contended that an amount of more than Rs.40 lakhs was invested in the business and lot of amount is due from the customers. If an order of eviction is passed, it will be difficult for him to collect the amount due from the customers. Further he is not in possession of any building and the building belongs to the brother of the tenant and he has no control over the same. So, according to learned counsel, the Appellate Court was not justified in ordering eviction under Section 11 (3) of the Act and both the courts were perfectly justified in dismissing the application under Section 11 (4)(iii) of the Act.
9. We have considered the rival contentions of both the parties.
10. The landlord filed an application for eviction on the ground of arrears of rent, bonafide need and subsequent acquisition of building by the tenant under Section 11 (2)(b), 11 (3) and 11 (4)(iii) of the Act. As far as arrears of rent is concerned, though the Rent Control Court had raised the point of consideration on this aspect, no finding was recorded by the Rent Control Court. But however, the Appellate Authority had found that the rent was kept in arrears and in spite of notice issued, within 15 days he had not remitted the amount and as such the landlord is entitled to get order of eviction under Section 11 (2)(b) of the Act and if at all the tenant had remitted the amount, subsequently, that can be considered in the application filed by him to vacate the order under Section 11 (2)(c) of the Act and ordered eviction under Section 11 (2)(b) of the Act. We don't find any reason to interfere with that finding.
11. As regards the bonafide need is concerned, the court below had rejected the claim of the landlord as not genuine on two grounds.
i) The landlord is a wealthy person getting sufficient income by way of rent and also getting a good pension and as such there is no necessity for him to start a business.
ii) The landlord has no prior experience in conducting the business.
12. On those two grounds, the Rent Control Court had denied the eviction under Section 11 (3) of the Act. Further the Rent Control Court has also found that the tenant is depending on the income derived from the textile business conducted in the petitioner scheduled building and as such he is entitled to get protection under second proviso of Section 11 (3) of the Act and denied order of eviction u/s 11(3) of the Act and dismissed application for eviction under Section 11(3) of the Act.
13. As regards the first ground for rejection is concerned, the Appellate Court found relying on the decision of the Supreme Court in Dattatraya Laxman Kamble V. Abdul Rasul Moulali Kotkune (AIR 1999 SC 2226), the lack of experience is not a ground for discarding the claim of the appellant's bonafide need to start a business. Same view has been reiterated in the decision reported in Shamshad Ahmad and others V. Tilakraj Bajaj (2008 (9) SCC 1). In the decision reported in AbdulRub V. Jobby Tharian (2003 (3) KLT 733), it has been held that law does not require that impecunious (poor) landlord alone can think of starting an income generating activity in order that need set up will pass through the test of bonafide. Law does not insist that a landlord having other source of income shall not carry out another income activity or venture to start a new business. Further the evidence of PW1 will go to show that he was assisting another person who is doing business in such household articles and thereby he had acquired some experience and he had confidence in conducting the business. Further, he had produced documents to show that he was having sufficient means to invest as well. He had further stated that the building said to be in his possession is not having road frontage and it is an incomplete building without any municipal number and it is used as godown for keeping old household articles and other materials by him which is not sufficient to conduct the business. The Commissioner's report also will go to show that it is not having any road frontage with the main road and old articles are stocked there which is not sufficient to start the intended business by the landlord. So the Appellate Authority was perfectly justified in coming to the conclusion that the landlord is not in possession of any other suitable building for starting his business so as to denying eviction invoking the bar under first para proviso to Section 11(3) of the Act.
14. Further the mere difficulty for the tenant to shift his business to new premises and difficulty in collecting the amounts due from the customers is not a ground for denying the order of eviction on the ground of bonafide need. Merely because he is a retired employee and getting good income by way of rent and also pension is not a ground to come to the conclusion that he will have to sit idle and he is not entitled to conduct any business to augment his income. So it cannot be said that the need alleged by the landlord is only an irrational desire and it was raised as a ruse to evict the tenant from the building. So under the circumstances, the Appellate Authority was perfectly justified in coming to the conclusion that the need alleged by the landlord is bonafide and rightly set aside the finding of the Rent Control Court on this aspect.
15. Under second proviso of Section 11 (3) of the Act, even if the landlord is succeeded in his bonafide need, if tenant is able to establish that he is solely depending on the income derived from the business conducted in the petition schedule building, and no other suitable buildings are available, in the locality for shifting his existing business, then the Court can reject the claim for eviction under Section 11 (3) of the Act. It is settled law that both the limbs of second proviso of the Section 11 (3) of the Act have to be pleaded and proved by the tenant and the burden is on the tenant to prove both these ingredients. If any one of the ingredient is not proved by the tenant, then he is not entitled to get the benefit of the proviso.
16. In this case neither in the counter statement nor in the evidence he had contended that there are no other suitable buildings available in the locality. PW1 as well as the Commissioner had deposed that there are other vacant buildings available in the locality and the tenant had no case that he had made any enquiries regarding the same as well. So under the said circumstances, the Appellate Authority was perfectly justified in coming to the conclusion that the tenant is not entitled to get the second proviso protection and rightly ordered eviction under Section 11 (3) of the Act and we do not find any reason to interfere with the same.
17. As regards the rejection of claim under Section 11 (4)(iii) of the Act, though the landlord had a case that the tenant had acquired the building of his own, there is no acceptable evidence adduced on the side of the landlord to prove this fact. Further the materials available on record are not sufficient to come to the conclusion as to when the tenant had acquired the premises as well. So under the circumstances, due to want of materials available, though the rent control has not answered the question, the Appellate Authority had considered the same and rightly rejected the claim for eviction under Section 11 (4)(iii) of the Act. We do not find any reason to interfere with the same.
18. So both the revisions lack merit and same are liable to be dismissed. However, at the time when we were about to dispose of the revisions petitions, the counsel for the tenant sought for one year time for surrendering the building whereas the landlord opposed the same and submitted that the Court can fix a reasonable time for surrendering the building. Considering the nature of business and difficulties raised by the counsel for the tenant in shifting their business quickly, we feel that nine months' time from today can be granted to the tenant to vacate the premises. So nine months time from today is granted to the tenant to vacate the premises on the condition that the tenant will file an undertaking before the Rent Control Court or execution of court if any execution petition is filed that he will surrender the building after expiry of nine months' from today without any objection to the landlord and also pay arrears of rent if any, and continue to pay the rent at the rate agreed between the parties till the date of surrender, he shall file the undertaking within a period of one month from today. If the undertaking is not filed, then the tenant is not entitled to get the benefit of granting time to vacate the premises as observed by this Court. With the above directions and observations, both the revisions are dismissed.