RAGHAVAN Vs. S.R. SUMATH BABU

JUDGEMENT

(1.) THE petitioner is the tenant in R.C.P. No. 179 of 2012 on the file of the Rent Control Court, Ernakulam. The respondent is the landlord therein. The respondent instituted R.C.P. No. 179 of 2012 under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the 'Act' for short, praying for an order of eviction in respect of a shop room having an area of 120 sq. ft. situate at Maradu Junction on the southern side of Maradu -Tripunithura Road. He contended that he bona fide needs the petition schedule building to start a fast food business. The petitioner herein filed a counter statement contending that the bona fide need alleged is not true, that the landlord is having other sources of income, that the statement in the rent control petition that he bona fide needs the petition schedule building for conducting a business to earn his livelihood is totally false and that the need put forward is not believable. The tenant further contended that he is depending for his livelihood mainly on the income derived by him from the bakery run in the petition schedule premises and that no other suitable room is available in the locality. He also contended that the petition schedule shop room is not suitable for running a fast food business and that the need put forward is only a ruse to evict him and to let out the same to the landlord's relative who is conducting a business in the room on the western side of the petition schedule building.

(2.) ON application filed by the landlord, an Advocate Commissioner was appointed and he submitted Ext. C1 report dated 11.12.2013 accompanied by Ext. C1(a) rough sketch. Before the Rent Control Court, the landlord examined himself as PW. 1 and the Advocate Commissioner as PW. 2. He also produced and marked Exts. A1 to A3. The tenant examined himself as RW. 1 and a resident of the locality as RW. 2. He also produced and marked as Ext. B1. The Rent Control Court considered the rival contentions and held that the need put forward is bona fide. The Rent Control Court also held that the tenant has not proved the ingredients of both the limbs of the second proviso to sub -section (3) of section 11 of the Act. An order for eviction was accordingly passed. Aggrieved thereby, the tenant filed R.C.A. No. 50 of 2014 on the file of the Rent Control Appellate Authority, Ernakulam. By judgment delivered on 31.01.2015, the Appellate Authority concurred with the Rent Control Court and dismissed the appeal. Hence, this revision petition.

(3.) PER contra, Sri C.K. Govindan, the learned counsel appearing for the respondent/landlord submitted that the landlord purchased the petition schedule shop room having an area of 120 sq. ft. in a court sale held on 03.04.2008, that the sale was confirmed on 05.07.2008, but the sale certificate was issued only on 12.03.2009. He submitted that in view of the fact that the room purchased by him was in the occupation of the petitioner/tenant, only symbolic delivery was effected and that it was done on 24.09.2009. The learned counsel contended that it was with a view to start a business in the petition schedule premises, that he had purchased the said shop room in court auction paying a sum of Rs. 5,05,000/ -, that the tenant had no case in Ext. A3 reply notice that the landlord is in possession of another building of his own building in the same city/town or village, that it was only during cross examination of PW. 1 that an attempt was made to establish that the landlord is running a business establishment under the name and style "Sreelakshmi Enterprises" in his own building, that the testimony tendered by PW. 1 discloses that the said business is conducted by the landlord's wife in a rented premises, that there is no material on record to show that the landlord is running the aforesaid establishment or that it is run in his own premises and, therefore, no exception can be taken to the findings entered by the Rent Control Court/Appellate Authority as regards the protection available to the tenant under the second proviso to section 11(3) of the Act. The learned counsel for the respondent/landlord contended that as rightly held by the courts below, the tenant has not discharged the burden to prove the two limbs of the second proviso to section 11(3) of the Act.