Aarummarakath Abdulla Musaliyar S/o Moideen Haji v Parol Abdul Nasser

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 RCRev..No. 19 of 2007() ----------------------- .................... ## REVISION PETITIONER/APPELLANT/PETITIONER: AARUMMARAKATH ABDULLA MUSALIYAR S/O.MOIDEEN HAJI, AGED 71 YEARS, BUSINESS, RESIDING AT TALIPARAMBA AMSON AND DESOM, TALIPARAMBA TALUK. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM ## RESPONDENT(S)/RESPONDENT: PAROL ABDUL NASSER, S/O.HASSANKUTTY, ARAB TRAVELS, HIGH WAY, TALIPARAMBA, TALIPARAMBA TALUK. ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28/02/2011, THE COURT ON THE SAME DAY PASSED THE ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. -----------------------R.C.R.No. 19 OF 2007** ## **------------------------** Dated this the 28[th] day of February, 2011 ## **O R D E R** Pius C.Kuriakose, J. The landlord is the revision petitioner. He challenges in this revision under Section 20 the judgment of the Rent Control Appellate Authority confirming the order of the Rent Control Court dismissing the Rent Control Petition filed by him invoking the ground under Section 11(3). The need projected by him in the Rent Control Petition was that the building in question, a fairly large room with two separate door numbers, is needed for accommodating his dependent family member and son Muhammed Fazal, so that Muhammed Fazal can conduct business in cement. 2. The bona fides of the need was disputed by the tenant contending that the rent control petition is liable to fail by virtue of the first proviso to sub section (3) of Section 11. It was also RCR.No.19/2007 2 contended that he is entitled to the protection of the second proviso to sub section (3) of Section 11. 3. Before the Rent Control Court, Sri.Muhammed Fazal was examined as PW1 and he deposed in terms of the need projected in the rent control petition. On the tenant's side Ext.B1 document was produced showing that the landlord was having vacant possession of rooms having door numbers 363, 364 and 370. The explanation of the landlord was that room having door number 370 alone is vacant and that the said room being in the first floor is not suitable for the need projected. The Rent Control Court was not impressed by the explanation offered by the landlord. That court found that the rent control petition is liable to fail by virtue of the first proviso to sub section (3) of Section 11. In view of that finding, the Rent Control Court did not enquire into the question whether the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11. Accordingly, the rent control petition was dismissed. 4. The learned Appellate Authority considering the appeal preferred by the landlord, not only confirmed the findings of the RCR.No.19/2007 3 Rent Control Court, but also enquired into the question of the tenant's eligibility for the protection of the second proviso to sub section (3) of Section 11. According to the Appellate Authority, the tenant is entitled for the protection of the second proviso. The Appellate Authority has thus confirmed the Rent Control Court's order fully apart from finding that the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11. 5. In this revision under Section 20, various grounds have been raised assailing the judgment of the Appellate Authority and Sri.T.P.Sajid, learned counsel for the revision petitioner/landlord would address us on the basis of those grounds. Mr.Sajid submitted that special reasons had been pleaded by the landlord as to why the landlord needs the petition schedule building itself for accomplishing his need. Even the exact words ...............................had been used in the rent control petition so submitted the learned counsel. Coming to the finding under the first proviso to sub section(3) of Section 11, Mr.Sajid submitted that entries in Ext.B1 notwithstanding, it is only the room having door number 370 which is available with RCR.No.19/2007 4 the landlord under the landlord's vacant possession. Room No.370 is in the first floor. It is quite unsuitable for conducting cement business. Mr.Sajid would assail the finding of the Appellate Authority conferring the benefit of the second proviso on the tenant. Binding judicial precedents in this regard have been ignored by the learned Appellate Authority who has cast the burden of proof wrongly on the landlord, so submitted the learned counsel. 6. Resisting the submissions of Mr.Sajid, the learned counsel for the respondent/tenant Sri.V.T.Madhavanunni, would support the impugned judgment. The learned counsel would refer to Section 20 and submit that there is no illegality, irregularity or impropriety as contemplated by that Section about the impugned judgment. It was admitted by the landlord that he is in vacant possession of room having door numbers 363,364 & 370. When such admission comes from the mouth of the landlord, he has to explain as to why he suppressed the above fact from the Rent Control Court. There is no warrant for interference, according to Mr.Madhavanunni. 7. We have very anxiously considered the rival submissions 5 RCR.No.19/2007 addressed at the Bar. We have gone through the judgment of the Appellate Authority and the order of the Rent Control Court carefully. It appears to us that the question, which seriously arises for consideration in this revision, is whether the rent control petition is liable to fail by virtue of the first proviso to sub section (3) of Section 11 and whether the finding by the Rent Control Appellate Authority that the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11 warrants interference. Even in cases where the landlord is in vacant possession of a building, eviction order under Section 11 (3) can be granted to the landlord if there are special reasons to justify the eviction order. In the instant case on going through the rent control petition ,what we find is that the landlord has given certain reasons as to why the petition schedule building is most suitable for the need projected. But, it is a fact that the landlord has not disclosed the availability of other buildings with the landlord and much less building numbers 370, 363 and 364. It was submitted before us by Mr.Sajid that building number 370 alone is under the vacant possession of the landlord. Since that building is in the first floor, the same may be the special RCR.No.19/2007 6 reason to exclude that building from reckoning for the purpose of the first proviso to sub section (3) of Section 11. It is not clear to us on appraising the evidence as to whether the landlord is having vacant possession of buildings bearing door numbers 363 & 364. We feel that the question whether the rent control petition is liable to fail by virtue of the first proviso to section 11 (3) requires a second look by the Rent Control Court. 8. Same is the position as regards the tenant's eligibility to the protection of the second proviso to sub Section (3) of Section 11. We are afraid that the learned Appellate Authority did not keep in mind the binding judicial precedents such as the judgment of a Full Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (FB) and the judgment of Supreme Court in Kunhamma v. Akkail Purushothaman (2007 (3) KLT 599 (SC) while taking the decision on that question. The learned Appellate Authority should have remembered that the burden is heavily on the tenant to show that he satisfies both the ingredients of the second proviso to sub section (3) of section 11. It is in evidence that the tenant is in possession of another building and that he is conducting some business in that RCR.No.19/2007 7 building. When that is the situation, he has a duty to produce evidence regarding the income derived by him from the business that is conducted by him in the two places and show that it is not the income derived by him from the business conducted by him in the subject premises that he is mainly depending on for his livelihood. No serious endeavour had been made by the tenant in this case to adduce evidence in that regard. Whatever that be, the finding of the Appellate Authority that the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11 is unsatisfactory. According to us, the above issue also should be reconsidered by the Rent Control Court. 9. We notice another aspect of the matter. The monthly rent which the tenant is paying for the petition schedule building, which appears to be a fairly a large room, is only Rs.750/- per month. We are sure that the above rate is far below the rent which the building may fetch if the same is let out today. We are, therefore inclined to refix the rent at Rs.1,500/- per month subject to the right of either party to move the Rent Control Court under Section 5 for regular fixation of fair rent. RCR.No.19/2007 8 ## 10. The result therefore is as follows; i). The Judgment of the Appellate Authority and the order of the Rent Control Court to the extent it finds that the rent control petition is liable to be dismissed for the first and the second provisos to sub section (3) of Section 11 are set aside. ii). It is found that the need is bona fide. The rent control petition is remanded to the Rent Control Court for taking fresh decision on the questions whether the rent control petition is liable to be rejected by virtue of the first proviso to sub section (3) of Section and also to decide whether the tenant is entitled for protection of the second proviso to sub section (3) of Section 11. The Rent Control Court will afford opportunity to both sides to adduce further evidence. Fresh decision will be taken on these issues on the basis of the evidence already on record and further evidence which may be adduced by the parties. Iii). The rent payable by the respondent/tenant is refixed with effect from 1-4-2011 at Rs.1,500/- per month . Till fair rent is fixed regularly, the respondent/tenant shall pay the rent to the landlord at the above rate. RCR.No.19/2007 9 iv). Parties will enter appearance before the Rent Control Court on 21/3/2011. The learned Rent Control Court will expedite matters and ensure that fresh order is passed within six weeks of the court reopening after mid summer holidays. **PIUS C.KURIAKOSE,JUDGE** **N.K.BALAKRISHNAN, JUDGE** dpk