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2014 Supreme(Online)(KER) 28964
HIGH COURT OF KERALA
K.T.SANKARAN, P.UBAID, JJ
NINAN – Appellant
Versus
JAYAGOPAL – Respondent
RENT CONTROL REVISION 42/2014
The judgment clarified that the landlord must demonstrate bona fide need for eviction under the Act, while also emphasizing tenant's burden to prove entitlement to protective provisions.
Headnote:
Bona Fide Need - Tenant Eviction - Kerala Buildings (Lease and Rent Control) Act - Sections 11(3), 11(8) - The court affirmed the findings of the trial and appellate courts that the landlord’s need for the entire space was bona fide, supporting eviction under Section 11(3), while tenant's claims lacked evidence.
Fact of the Case:
The tenant challenged the eviction order based on the landlord's claimed bona fide need for commercial space. The landlord, wishing to utilize the entire first floor for business, had previously surrendered a portion of the space. The tenant denied the landlord's claims and asserted his dependence on the tenancy for income.
Finding of the Court:
The court concluded that the landlord's need for the entire space was genuine, emphasizing that prior claims by the tenant regarding alternative spaces were unsubstantiated. The evidence supported the landlord's position that smaller spaces would not suffice for his proposed business.
Issues: Whether the landlord's claim of bona fide need was substantiated and whether the tenant was entitled to protections under the Act.
Ratio Decidendi: The court held that the burden of proof for demonstrating bona fide need lies on the landlord, but the tenant must also sufficiently substantiate claims for protections under the Act, which in this case, he failed to do.
Final Decision: The Rent Control Revision was dismissed, allowing the landlord to proceed with eviction.
O R D E R
Ubaid, J.
The tenant in the trial court challenges the concurrent findings of the two authorities below against him on bona fide need under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The entire first floor of a double storeyed building belonging to the landlord was entrusted to the revision petitioner on lease as per a lease deed dated 16.7.1998. Subsequently, a portion of the first floor having a space of 565 sq.ft. was surrendered by the tenant, and now the said portion is in the possession of the landlord. The total space is 1365 sq.ft. The landlord was employed in Beharin as Assistant Technical Manager in an office automation centre. Now he wants to come back and settle here with some business of his own. His case is that he requires the space in the possession of the tenant for starting an office automation centre with sale and service of computer and computer spare parts. The space of 565 sq.ft. which is already in his possession is not sufficient for the said purpose. He requires the total space of 1365 sq.ft. for the said business, and on the said claim, the landlord brought eviction petition as R.C.P.No.11 of 2010 before the Rent Control Court (Principal Munsiff's Court), Kollam.
2. The tenant entered appearance and resisted the eviction proceedings on the contention that the need alleged by the landlord is not bona fide at all, that the landlord has no such intention to start a business of his own, that the landlord has income from other sources, that the landlord has other buildings in his possession if at all he wants to start a business of his own, that other suitable buildings or rooms are not available in the locality for the tenant for shifting his present business, and that he is solely dependant on the income derived from the business being conducted in the tenanted premises.
3. The parties adduced evidence during trial in the trial court.
The landlord was examined as PW1 and Exts.A1 to A23 were marked on his side. The tenant examined himself as RW1 and Exts.B1 to B5 were marked on his side. During the proceedings, an Advocate Commissioner was appointed by the trial court to inspect the premises and submit report. The reports and mahzars submitted by the Advocate Commissioner were marked as Exts.C1, C1(a), C2 and C2(a). The petition was, in fact, filed by the landlord under Sections 11 (3) and 11(8) of the Act. During the proceedings, the claim under Section 11 (8) of the Act was abandoned by the landlord. On an appreciation of the evidence, the trial court found in favour of the landlord, that the need projected by the landlord is bona fide, that the landlord does not have any other convenient space or building in his possession for the proposed business, and that the tenant is not entitled for the protection under the second proviso to (3) of the Act. Accordingly, the Rent Control Court granted eviction in favour of the landlord under (3) of the Act, by order dated
22.11.2010 in R.C.P.No.11 of 2010.
4. Aggrieved by the order of eviction, the tenant approached the Appellate Authority (District Court) Kollam with R.C.A.No.1 of
2011. On an appreciation of the evidence, the Appellate Authority concurred with the findings of the trial court and confirmed the order of eviction under Section 11 (3) of the Act. Now the tenant is before this Court in revision under Section 20 of the Act, challenging the legality and correctness of the findings and orders of the authorities below.
5. The need projected by the landlord in this case is that he wants to start a business of office automation including sale and service of computer and computer spare parts. He requires the entire first floor of the building, having a total area of 1365 sq.ft., for the said business. Originally, the entire space was let out to the tenant, but in 2005, an area of 565 sq.ft. was surrendered by the tenant, and a new tenancy with respect to the remaining portion was created
