Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 RCREV. NO. 43 OF 2023 AGAINST THE ORDER/JUDGMENT IN RCA 3/2021 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE - II), KALPETTA RCP 21/2015 OF RENT CONTROLLER (MUNSIFF MAGISTRATE, SULTHAN BATHERY) REVISION PETITIONER/APPELLANT/RESPONDENT: MOHANAN AGED 60 YEARS, S/O.KUNHANANDAN, RESIDING AT VATTAKULATHIL HOUSE, KATTAYAD, SULTHAN BATHERY VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 670731 BY ADVS. JIKKU SEBAN GEORGE DEEPTI SUSAN GEORGE RESPONDENT/RESPONDENT/PETITIONER: PULICKAL BIJU, AGED 49 YEARS, S/O.NARAYANAN, RESIDING AT PULICKAL HOUSE, POOTHADI AMSOM DESOM, ATHIRATTUKUNNU P.O, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 673596 BY ADV A.R.NIMOD(K/539/2008) (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28.03.2023, THE COURT ON 31.03.2023 DELIVERED THE FOLLOWING: RCRev No.43 of 2023 2 P.B SURESHKUMAR &
SOPHY THOMAS, JJ.
------------------------------------------- Rent Control Revision No.43 of 2023 ------------------------------------------- Dated this the 31st day of March, 2023
ORDER
Sophy Thomas, J.
The tenant in RCP No.21 of 2015 on the file of Rent Control Court, Sultan Bathery is the revision petitioner herein, assailing the judgment of the Rent Control Appellate Authority in RCA No.3 of 2021.
2. The petitioner in RCP No.21 of 2015 is the son of the
original landlord. His case was that, his father, as per settlement deed dated 01.11.2013, settled the petition schedule property in favour of the petitioner and hence he became the landlord. He filed RCP No.21 of 2015 for evicting the tenant under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred as ‘the Act’). His case was that, the rent was in arrears and he was in bonafide need of RCRev No.43 of 2023 3 the tenanted premises for starting a stationery business. The tenant opposed that petition contending that, the rent was never in arrears and the petitioner had no locus standi to file such a petition, as he was having no right over the petition schedule
room. According to him, the schedule shop room was taken on lease from the father of the petitioner on 27.04.2012. He never knew that the petitioner became the owner of that property. Moreover, since one year had not been elapsed from the date of transfer, the petition filed by the petitioner was not maintainable. The tenant was in possession of the schedule shop room since 1990 and the income derived from the business in that shop room was the main source of his livelihood. The petitioner was having income from other sources and the desire expressed by him to start a stationery business in the schedule shop room, was not bonafide. The schedule shop room was not suitable for starting a
stationery business. The only intention of the petitioner was to evict the tenant from the schedule shop room by whatever means.
3. Before the Rent Control Court, PW1 was examined and RCRev No.43 of 2023 4 Exts.A1 to A5, C1 and C1(a) were marked from the side of the landlord, RW1 was examined and Exts.B1 to B10 were marked from the side of the tenant.
4. Since the tenant deposited the rent arrears upto February, 2021, the eviction sought under Section 11(2)(b) was
rejected. The Rent Control Court considered the relief sought under Section 11(3) of the Act and found that the intention of the landlord to start a stationery business in the schedule shop room was a bonafide one and the tenant was not eligible to get the benefit of the first and second provisos to Section 11(3) of the Act. So, as per order dated 26.03.2021, the Rent Control Court ordered eviction under Section 11(3) of the Act.
5. Aggrieved by the order of eviction, the tenant preferred
RCA No.3 of 2021 before the Rent Control Appellate Authority, Kalpetta. The appellate authority affirmed the order of the Rent Control Court finding that, the need projected by the landlord was a bonafide one and the tenant was not eligible to get the benefit of the provisos under Section 11(3) of the Act. Aggrieved by the concurrent orders of eviction under Section 11(3) of the Act, the
RCRev No.43 of 2023 5 tenant has come up with this revision.
6. We are called upon to find out whether there is any illegality, irregularity or impropriety in the judgment impugned, warranting interference of this Court.
7. Heard learned counsel Sri.Jikku Seban George, appearing for the revision petitioner/tenant and learned counsel Sri.A.R Nimod, appearing for the respondent/landlord.
8. In the revision, the main ground urged by the revision
petitioner is that the respondent could not prove his title over the schedule shop room and so, he had no locus standi to file the Rent Control Petition. He relied on the common law principle of
‘sublato fundamento, cadit opus’ which means ‘a foundation being removed, the superstructure falls’. He would submit that, as the respondent had no title over the schedule shop room, he will not get locus standi to file a petition for evicting the tenant. The original landlord is the father of the respondent herein, and the revision petitioner would say that, he had no information regarding transfer of the schedule shop room to the respondent. The main reason for such an averment seems to be on the ground
RCRev No.43 of 2023 6
that the Rent Control Court rejected Ext.A2, copy of settlement deed No.3834. In paragraph 6 of the order of the Rent Control Court, it was clearly mentioned that Ext.A2 was rejected since it was a photocopy. It does not mean that the respondent in whose favour the petition schedule shop room was settled by his father, will lose his right, title or interest over that property, because of the fact that the photocopy of that settlement deed was refused to be admitted in evidence by the Rent Control Court.
9. On going through the order of the Rent Control Court, it
could be seen that, though the tenant contended that the petitioner in the RCP had no right over the petition schedule property and he was bound to prove the title etc., it was not seen taken up as a serious contention. No evidence also was let in by the tenant challenging the title of the petitioner/landlord in the
schedule shop room. Though he is challenging the title of the petitioner/landlord, he failed to explain how that challenge is maintainable. He has no case that the father of the petitioner/landlord was not competent to execute such a settlement deed in favour of his son. He has also no case that the RCRev No.43 of 2023 7 document executed by the father of the petitioner/landlord was
vitiated in any manner known to law. He has no case that the petitioner/landlord was incompetent or legally prohibited from accepting such a settlement from his father. The tenant did not know about such a transfer, is not a ground to attack that document. The photocopy of that document was refused to be accepted by the Rent Control Court also, is not a ground to challenge the title conferred as per that document. In the appeal before the Rent Control Appellate Authority also, the challenge regarding title was not made an issue. Only before this Court, such a contention was advanced seriously, mainly because of the fact that, Ext.A2 photocopy of the settlement deed was seen rejected by the Rent Control Court.
10. The tenant is admitting that, he received Ext.A3 lawyer
notice sent by the landlord, in which the settlement deed executed in favour of the petitioner in the RCP was clearly mentioned. Ext.A2 settlement deed was dated 01.11.2013. The Rent Control Petition was filed in the year 2015. So, it was after one year of the transfer of the property, the RCP was filed. For all RCRev No.43 of 2023 8 these reasons, the challenge regarding title of the schedule shop room is untenable.
11. Now coming to the order of eviction under Section
11(3) of the Act, the Rent Control Court as well as the appellate court concurrently found that the need projected by the landlord was bonafide. He was having no job or income and so, he wanted to start a stationery business in the schedule shop room. During cross examination, PW1 admitted that he is in possession of three other rooms. But, the Rent Control Court as well as the appellate authority found that the schedule shop room was facing National Highway, as evident from Ext.B1 plan and so, it was the most suitable room to start the stationery business. So, the landlord has shown special reason to get vacant possession of the
schedule shop room for starting the stationery business. The landlord was not duty bound to plead in his petition regarding other rooms in his possession which, according to him, were not sufficient to meet his requirement. So, the revision petitioner was not eligible to get the benefit of the first proviso to Section 11(3) of the Act. RCRev No.43 of 2023 9
12. Regarding the second proviso to Section 11(3) of the
Act, though the tenant produced Ext.B2 series register to show that, he was mainly depending upon the income from the business in the schedule shop room for his livelihood, it was not showing the income derived from that business. He failed to produce any other documents such as income tax returns, to prove his income from the schedule shop room. Moreover, it was brought out in evidence as per Ext.A5 that, the tenant was conducting a business named ‘Arjun Ayurvedic Clinic’ in the shop room owned by his wife. Though he contended that, it was not his business, during cross examination, he conceded that the municipal licence in relation to the business ‘Arjun Ayurvedic Clinic’ is in his name. So, we can safely conclude that the income from the business in the schedule shop room was not the main source of his livelihood, as he is running another branch of ayurvedic medicine under the name and style ‘Arjun Ayurvedic Clinic’ in the shop room owned by his wife. Ext.C1 commission report also substantiates that fact.
13. From the foregoing discussion, we find no illegality, RCRev No.43 of 2023 10 irregularity or impropriety in the impugned judgment of the Rent Control Appellate Authority in RCA No.3 of 2021, by which the
order of the Rent Control Court in RCP No.21 of 2015 was
confirmed. So, the revision is liable to be dismissed. Having regard to the facts and circumstances of the case,
we deem it appropriate to grant six months time to the tenant to surrender vacant possession of the premises, on condition that he shall file an affidavit before the Rent Control Court on or before 22.05.2023, unconditionally undertaking to vacate the tenanted premises within six months, and agreeing to pay the arrears of rent, if any, within one month and continue to pay the monthly rent before the due dates, till he vacates the premises.
With these directions, the revision stands dismissed. Sd/- P.B SURESH KUMAR JUDGE Sd/- SOPHY THOMAS JUDGE smp/29.03.2023