A. Muraleedharan v. C. P. Mohammed Hassan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 16TH DAY OF OCTOBER 2017/24TH ASWINA, 1939** **RCRev..No. 356 of 2016 (D) --------------------------** **RCA 90/2015 of RENT CONTROL APPELLATE AUTHORITY-II/ II ADDL.DISTRICT COURT, KOZHIKODE** **RCP 84/2012 of RENT CONTROL COURT/I ADDL. MUNSIFF COURT,KOZHIKIDE** **REVISION PETITIONER/APPELLANT/RESPONDENT:** **-------------------** **A. MURALEEDHARAN AGED 45 YEARS, S/O C.P.UNNIKURUP, AM STORE, CIVIL STATION P.O., NEAR GANDHI ASHRAMAM, KOZHIKODE-673010.** **BY ADVS.SRI.K.B.SIVARAMAKRISHNAN SRI.K.SANEESH KUMAR** **RESPONDENT/RESPONDENT/PETITIONER:** **----------** **C. P. MOHAMMED HASSAN AGED 66 YEARS, S/O. LATE ABOOBACKER KOYA, VENGERI VILLAGE, NEDUNGOTTUR DESOM, KOZHIKODE TALUK.** ## **BY ADV. SRI.JAYKAR.K.S.,CAVEATOR** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **OKB** K.HARILAL & A.M.BABU, JJ. --------------------------R.C.R. No.356 of 2016 --------------------------Dated this the 16[th] day of October, 2017 ## O R D E R ## **Harilal, J.** The concurrent findings of the courts below granting an order of eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”) have come up in this revision filed by the respondent/tenant. (The parties are referred to as in the Rent Control Petition). 2. According to the petitioner, the lease arrangement between the petitioner and the respondent had commenced under Ext.A1 lease deed and thereafter the respondent has been occupying the petition schedule shop room and conducting grocery business. The petitioner's son Roshan Hassan is aged 24 years and now he is working as a salesman in a business concern namely White Field. He is getting only a meager income from the RCR.356/16 **:2:** said job and he is not in a position to maintain a family after his marriage. Therefore the petitioner bona fide needs the vacant possession of the petition schedule shop room to start a hardware business for his son. He has no other shop room of his own in his possession to start the said business and several other shop rooms are available in the locality to shift the business from the petition schedule shop room. 3. The respondent resisted the claim for eviction under Section 11(3) contending that the need projected in the petition is a only pretext for eviction. According to him, the possession of the petition schedule shop room was handed over to him under Ext.B1 and not under Ext.A1 and as per the recitals in Ext.B1 he is not liable to vacate the petition schedule shop room. So also he claimed protection under the second proviso to Section 11(3) of the Act contending that he is mainly depending on the income from the tenanted premises and no other vacant shop rooms are available in the locality to shift his business. RCR.356/16 **:3:** 4. On the aforesaid rival pleadings both parties adduced evidence and after considering the evidence on record the Rent Control Court passed an order granting eviction under Section 11(3) of the Act. Though he had preferred an appeal, the Appellate Authority also confirmed the order of eviction granted under Section 11 (3) and dismissed the appeal. 5. Heard the learned counsel for the revision petitioner and the learned counsel appearing for the respondent. 6. The learned counsel for the respondent advanced arguments challenging the concurrent findings of the courts below under Section 11(3) of the Act. It is mainly contended that the non-examination of the dependent, for whose need the petition schedule shop room is required, is fatal and as per the recitals in Ext.B1 the respondent is not liable to vacate the petition schedule shop room at the time of filing the Rent Control Petition. As regards the non- examination of the dependent son, for whose need the RCR.356/16 **:4:** petition schedule shop room is required, it is not fatal, because the legal position stands well settled by this Court in **Devayani v. Pulickaparambil Hamsa Haji [1997 (1) KLJ 230], Musthafa Haji v. Umbichi [2004 (2) KLT 1110]** and **Kannur Drug House v. Abdul Aziz [2013 KHC 2518]** . In all the above decisions, this Court unequivocally held that the need is always that of the landlord and the non-examination of the dependent is not fatal. In the instant case, the landlord was examined as PW1 and the courts below concurrently placed reliance on his oral testimony on a finding that he has succeeded the test of bona fide in cross-examination by the petitioner. Here, the respondent has no case that the courts below have omitted to consider any valuable evidence or placed reliance on any irrelevant evidence or wrong proposition of law. Therefore we are not inclined to interfere with the concurrent findings of the courts below on the question of bona fide need, in exercise of the revisional jurisdiction under Section 20 of the Act. RCR.356/16 **:5:** 7. Coming to the next point, it is the case of the respondent that as per the recitals in Ext.B1 he is not liable to vacate the petition schedule shop room at the time of filing the Rent Control Petition. Going by the impugned judgment passed by the Appellate Authority, it is seen that the respondent had made an attempt to make out a case that the transaction granting possession of the petition schedule shop room has commenced under Ext.B1 and not under Ext.A1. The courts below rightly rejected the said contention and found that the actual lease arrangement has commenced under Ext.A1 and Ext.B1 was a preliminary agreement to execute Ext.A1 agreement only. We are of the opinion that the recitals in the documents as regards right of eviction are of no consequence at all in view of the non obstante clause incorporated under Section 11 of the Act. In short, notwithstanding the recitals in Ext.A1 the petitioner is entitled to get an order of eviction, if he succeeds to prove the specific grounds enumerated under Section 11 of the Act. In the above view, we reject RCR.356/16 **:6:** the said argument also. 8. As regards the first proviso, the respondent has no case that the petitioner has another building of his own in his possession to start the proposed business. Coming to the second proviso to Section 11(3) of the Act, the courts below concurrently found that the respondent has miserably failed to discharge the burden of proof under the second proviso to Section 11(3) of the Act. In the absence of any positive evidence to prove the facts constituting the ingredients under the second proviso to Section 11(3), we do not find any reason to interfere with the concurrent findings of the courts below. There is no illegality or impropriety in any of the findings in the concurrent findings of the courts below. Hence the revision is dismissed. 9. The learned counsel for the revision petitioner prayed for granting one year time to vacate the tenanted premises. Having regard to the entire facts and circumstances of the case, six months time is granted to RCR.356/16 **:7:** vacate the tenanted premises on the following conditions. (1). The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today. (2). The revision petitioner/tenant shall deposit entire arrears, if any, within one month from today, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay rent without default. (3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order. All pending interlocutory applications will stand closed. Sd/- (K.HARILAL, JUDGE) Sd/- (A.M.BABU, JUDGE) okb.