A. Yahiya v. A. Noushad

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943 RCRev..No.290 OF 2019 AGAINST THE ORDER DATED 16.03.2019 IN RCA NO.26/2017 ON THE FILE OF THE ADDITIONAL RENT CONTROL APPELLATE JUDGE-IV, KOLLAM AGAINST THE ORDER DATED 31.7.2017 IN RCP NO.42/2013 ON THE FILE OF THE PRINCIPAL RENT CONTROL COURT, KOLLAM. ## REVISION PETITIONER/APPELLANT/COUNTER PETITIONER: A. YAHIYA AGED 69 YEARS S/O.HAJI ABDUL RASAQUE, RESIDING AT NIMMI HOUSE, EP VI/587, KAYYALAKKAL CHERRY, VADAKKEVILA POST, KOLLAM. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI KUM.NEETU VINOD ## RESPONDENT/RESPONDENT/PETITIONER: A. NOUSHAD, AGED 54 YEARS, S/O.HAJI ABDUL RASAQUE, ASHIK MANZIL, AZAD NAGAR NO.37, VADAKKEVILA POST, ERAVIPURAM VILLAGE, KOLLAM-691011. R1 BY ADV. SRI.V.PREMCHAND THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C.R.No.290 of 2019 2 ## O R D E R Dated this the 22nd day of March 2021 ... ## Ziyad Rahman A.A., J. This Revision Petition is filed by the tenant in the Rent Control Petition which was filed by the landlord seeking eviction of the tenant from the petition schedule building under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control)Act,1965 (for short ‘the Act’). Both the authorities under the Act have concurrently found that, the need put forward by the landlord is with bonafides and therefore the eviction was ordered. 2. The averments contained in the Rent Control Petition (for short RCP) are as follows: The respondent/landlord obtained title over the petition schedule building as per sale deed No.4196 of 2010 of Eravipuram Sub Registrar Office. The Revision Petitioner/tenant had taken the petition schedule building from the respondent/landlord on 15.12.2010 for a period of 11 months for a monthly rent of Rs.3,000/-. Thereafter, the Revision Petitioner was conducting the business of scrap materials in the petition schedule building. It was contended that, the landlord is conducting a business of R.C.R.No.290 of 2019 3 hardware and steel accessories in the name and style MAR Steels in a rented premises. According to landlord, he is in urgent need of accommodation of the petition schedule building for storing various materials in connection with the said business. It is contended that the petition schedule building is suitable for the said purpose and therefore he requires the vacant possession of the same. Apart from the above, the tenant defaulted in paying the rent. Even though the landlord sent a registered notice to the tenant on 23.11.2013 demanding the arrears of rent and for surrendering the vacant possession of the building, he did not paid the arrears of rent and also refused to hand over the possession of the said building. The Rent Control Petition was filed in the above circumstances. 3. The tenant appeared and filed a counter statement raising the contention that the need urged by the landlord is not with bonafides. It was contended by the tenant that the landlord filed the Rent Control Petition by suppressing material facts. It was contended that the landlord owns 9 cents of land beside the Thammarakkulam road in Sy. No.8231 situated hardly 300 meters away from his place of business. It was further contended that in the year, 2013, the landlord constructed a building in the said property and after completion thereof, it was leased out to another R.C.R.No.290 of 2019 4 tenant. Therefore, by relying upon the same, it was contended by the tenant that if the landlord was actually in need of an additional accommodation, he would not have leased out the said building to others. In the above circumstances, he sought for rejection of the said petition. 4. The evidence in this case consists of oral evidence of PW1 and documentary evidence of Exts.P1 to P4 from the side of the landlord. From the side of the respondent, RW1 was examined and Exts.R1 to R6 were marked. The Commission report as well as mahazar prepared by the Advocate Commissioner were marked as Exts.C1 and C1(a). 5. After the trial, the Rent Control Court found that, the tenant is liable to be evicted under Sections 11(2)(b) as well as Section 11(3) of the Act. Accordingly, the tenant was directed to put the landlord in possession of the petition schedule building within two months from the date of the order. Challenging the aforesaid order passed in R.C.(OP)No.42 of 2013 by the Principal Rent Control Court, Kollam, the tenant filed R.C.A.No.26 of 2017 before the Additional Rent Control Appellate Authority, Kollam. After hearing both sides, the appeal was dismissed confirming the order of eviction passed by the Rent Control Court under Section 11(3) of the Act. As far as the order R.C.R.No.290 of 2019 5 of eviction under Section 11(2)(b) is concerned, as it was submitted by the learned counsel for the landlord that the entire arrears of rent was cleared by the tenant, it was vacated. 6. Heard the learned counsel for the Revision Petitioner/tenant and the learned counsel for the respondent/landlord. 7. The main contention urged by the learned counsel for the Revision Petitioner/tenant is that, the Rent Control Petition is liable to be dismissed, as the respondent/landlord failed to mention about the building which was in his possession at the time of filing the Rent Control Petition. It is contended by the learned counsel for the Revision Petitioner that, despite the fact that the respondent was having a suitable building nearby his place of business in his own ownership, he had not mentioned about the same in the Rent Control Petition. Instead of that, in the Rent Control Petition, the respondent asserted that, he has no space in his possession in which he can now carry on the intended business of his own. The learned counsel for the Revision Petition brought the attention of this Court the averments made at paragraph 5 of the Rent Control Petition which is extracted hereunder: R.C.R.No.290 of 2019 6 _“Petitioner is now conducting a business in Hard Ware and Steel Accessories in the name and style of MAR Steel, in a rented premises. He is in urgent need of an accommodation for storing various materials, for keeping stocks and also for the purpose of assembling steel equipments for his existing business. The scheduled premises is quite suitable for the said purposes. The said need of petitioner is bona fide and he is not in possession of any premises for putting to his said need. There is no space in the rented premises in his possession in which he is now carrying on his business, for being put to the aforesaid need of petitioner.”_ In support of his contention, the learned counsel for the tenant relied upon the judgment rendered by this Court reported in Bhargavi Amma P. v. K.P.Ajayakumar [2016(1)KHC 347]. Strong reliance was placed by him, on the contents of paragraph 8 of the said judgment, which reads as follows: _8. In the present case, when he was examined as PW1, the landlord has very clearly stated that he has two rooms in his occupation. The said admission is clear for the reason that, he has specifically referred to Door numbers on each of the rooms in his possession. He has further gone on to state that, the said rooms were kept locked. It is his further case that all the rooms are of the same dimensions. It is true that, the tenant has not pleaded that, the landlord has other shop rooms in his possession. However, the fact remains that the landlord has also not disclosed in his Rent Control Petition that he was in possession of other vacant shop rooms. The counsel for the landlord contended before us that the non-disclosure of the said vacant shop rooms in the Rent Control Petition was neither willful nor deliberate. Be that as it may, the fact remains that the very relevant fact, namely that, the landlord was in possession of two vacant shop rooms of equal dimensions as the tenanted shop rooms in his possession was not disclosed in the Rent_ R.C.R.No.290 of 2019 7 _Control Petition. The said act of non-disclosure of a crucial fact cuts at the bona fides of the need that is put forward. It was incumbent on the landlord to have disclosed the fact that he was in possession of the said vacant rooms and to have put forward special reasons for not utilizing them for the satisfaction of the need that has been put forward. It is pertinent to note that the above crucial fact has been elicited from him in crossexamination. It cannot be said that the fact that has been elicited is a subsequent event that would come within the meaning of the said expression. The said term used by this Court in the decision in Chandran v. Sunil Kumar,2004 KHC 1145 : 2004(3) KLT 420 : 2004(2) KLJ 714 on which reliance has been placed by the Appellate Authority._ 8. After considering the relevant pleadings of the parties and also the observations made by this Court in the judgment in Bhargavi Amma’s case (supra), it is discernible that the principles laid down in the said judgment cannot be made applicable in this case. It is true that having vacant possession of another building with the landlord is a matter which attracts the stipulations contained in first proviso to Section 11(3) of the Act. However, the crucial aspect to be noticed in this regard is that whether the building in question is actually vacant at the relevant time and as to whether it is available for the landlord to be utilized for the intended purposes. In this case, going by the averments contained in the counter statement submitted by the tenant itself, it is evident that the aforesaid building was not in physical possession of the R.C.R.No.290 of 2019 8 landlord at the relevant time. The averments of the tenant as contained in paragraph 7 of his objection reads as follows: _7. The petitioner is conducting hardware business in a shop room near Parry & co junction in the heart of Kollam city. The petition scheduled shed is situated 7 kilometers away from the petitioner’s place of business. The petitioner have several other building in his possession in Kollam city quite suitable for his hardware business or for arranging additional accommodation. The petitioner owns 9 cents of land beside the Thammarakkulam road in survey No:8231 situated hardly 300 meters away from his place of business. In the year 2013 petitioner constructed a big building in that property quite suitable and spacious for doing any kind of business. After completing this building the petitioner leased out the building No:MCXVIII/1233/346 A-(TR No:45/4529) to Fast & Safe Parcel Service. The plinth area of the building comes to more than 3000 square feet. If the petitioner needed any additional accommodation he would not have leased out the building to others. After leasing out a brand new own building situated hardly 300 meters away from his place of business quite suitable for running hardware business or arranging additional accommodation petitioner is seeking eviction of the respondent from an open shed situated 7 kilometers away from his place of business as additional accommodation for his business. The need put forth by the petitioner is not bonafide._ From the said averments, it is evident that even according to the tenant, the said building has been let out even prior to the filing of the Rent Control Petition. Therefore, it is evident that as on the date of filing of R.C.R.No.290 of 2019 9 the Rent Control Petition, the landlord was not having the vacant possession of any other building. In the above circumstances, the landlord cannot be found fault with, in not mentioning about the said building in his pleadings. 9. It is further contended by the Learned Counsel for tenant that the act of leasing out the said building to the other parties, would indicate lack of bonafides on the part of the landlord. However, we are of the view that, merely because of the reason that another building was let out by the landlord before the filing of the Rent Control Petition, it cannot be assumed that the need put forward by the landlord is not bonafide. Several factors will be taken into consideration by the landlord, while taking a decision in this regard and the tenant is not supposed to dictate the landlord with regard to such decisions. If the landlord, had chosen to utilize the petition schedule building for his business, it is his discretion, which is available with him and tenant cannot be allowed to interfere with the same, unless the tenant is able to establish that the exercise of such discretion is with the sole object of evicting him. In this case the tenant could not point out any materials to doubt the bonafides of the landlord. After appreciation of evidence, both the Rent Control Authorities have concurrently found that the need R.C.R.No.290 of 2019 10 projected by the landlord is with bonafides. The scope of jurisdiction of this court under section 20 of the Act is very limited and we do not find any infirmity in the orders passed by the said authorities. 10. All the other contentions put forward by the learned counsel for the tenant are also in connection with factual findings, which were concurrently found against him by the Rent Control Authorities. Therefore, the said findings cannot be re-appreciated in a proceedings under Section 20 of the Kerala Buildings (Lease and Rent Control)Act. In the above circumstances, the Rent Control Revision is dismissed. However, taking into consideration of the fact that, the Revision Petitioner/tenant may require a reasonable time to find out alternative space to continue his business, the Revision Petitioner is granted a time till 31.11.2021 for vacating the premises subject to the following conditions: i) The Revision Petitioner/tenant will file an undertaking before the Rent Control Court to the effect that, he will vacate the petition schedule premises on or before 31.11.2021; R.C.R.No.290 of 2019 11 ii) The Revision Petitioner/tenant will pay the entire arrears of rent as on the date and also will continue to pay the contract rent as compensation for use and occupation of the building till he vacates the premises; iii) If any of the above two conditions are violated, the landlord is free to proceed with the execution of the eviction order. Sd/- A.HARIPRASAD JUDGE Sd/- ZIYAD RAHMAN A.A. JUDGE **pkk**