Abdul Gafoor v. M. Sivadasan and Bhaskar NamBIAR

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 RCRev..No. 293 of 2008() -----------------------RCA.45/2007 of RENT CONTROL APPELLATE AUTHROITY ,KOZHIKODE RCP.189/2004 of PRL.M.C.KOZHIKODE-I .................... REVISION PETITIONER/ APPELLANT/PETITIONER: ----------------------------------------- ABDUL GAFOOR, S/O.MAMU, RESIDING AT PUTHUKUNNATH, POOLAKKODE AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): RESPONDENTS/RESPONDENTS: --------------------------------------- 1. M.SIVADASAN, S/O.MULLERI LAKSHMI AMMA, RESIDING AT P.O.CHATHAMANGALAM, CHATHAMANGALAM AMSOM DESOM, KOZHIKODE. 2. BHASKARAN NAMBIAR, S/O.LAKSHMI AMMA, CHATHAMANGALAM AMSOM DESOM, KOZHIKODE. ADV. SRI.K.A.SALIL NARAYANAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. -----------------------R.C.R.No.293 OF 2008 ------------------------** Dated this the 2nd day of December, 2010 ## **O R D E R** ## Pius C.Kuriakose, J. The landlord is the revision petitioner. He challenges the judgment of the rent control appellate authority confirming the order of the rent control court declining eviction on the grounds under sub section(3) of Section 11 and clause (iii) of sub section (4) of Section 11. He also challenges the judgment declining eviction on the ground of arrears of rent and sub lessee. As regards the challenge on the order declining eviction on the ground of sub letting and arrears of rent, we will notice immediately that, having gone through the judgment of the appellate authority and having heard the submissions, we are not at all impressed by such challenge. Hence, we straight away confirm the order of the statutory authorities declining eviction RCR.No.293/2008 2 on the ground of arrears of rent as well as sub letting. In fact, the learned counsel for the revision petitioner also in his submissions gave more thrust to the challenge against the order declining eviction on the ground of bona fide need for own occupation and the ground under section 11(4)(iii). 2. We shall first deal with the ground under section 11 (4) (iii). The above ground was raised by the landlord on the basis that another building situated not far away from the petition schedule building is possessed by the tenant. The other building belongs to the 2[nd] respondent in the rent control petition, who was alleged to be a sub lessee. The The 2[nd] respondent is none other than the brother of the first respondent in the rent control petition. It has come out in evidence that in that building, the first respondent tenant is conducting offset printing. Thus, in fact it is practically admitted that the first respondent tenant is in possession of that building on the basis of some arrangement with his brother, the 2[nd] respondent. The defence of the tenant was that the said building is not reasonably sufficient for his requirements. 3. Even though Sri.P.A.Harish, learned counsel for the RCR.No.293/2008 3 revision petitioner, assailed the concurrent findings of the statutory authorities in favour of the tenant regarding ground under section 11 (4)(iii), we are not inclined to interfere with those findings. The petition schedule building has a total carpet area of roughly 450 sq.ft. The other building belonging to the 2[nd] respondent has hardly 100 sq.ft. The question to be asked and answered in any case under Section 11 (4)(iii) is whether the building additionally possessed by the tenant is reasonably sufficient for the purposes to which the building, which is subject matter of the rent control proceedings, is being put by the tenant. It is not at all difficult for us to answer that question in favour of the tenant. We hold that the building belonging to the 2[nd] respondent in the rent control petition cannot be reasonably sufficient for accommodating the entire business which the tenant is conducting in the petition schedule building. We, therefore, confirm the judgment of the appellant authority in the context of ground under section 11 (4)(iii). 4. Now we come to the ground of bona fide need for own occupation. We find that the learned appellate authority in its judgment has very clearly found that the need projected by the RCR.No.293/2008 4 landlord, which is for conducting business in stationery and fruits' juice, is a bona fide one. The above finding is not challenged by the tenant. Having gone through the judgment of the appellate authority and the order of the rent control court and having made a survey of the evidence available on record, we do not find any infirmity about that finding. We, therefore, confirm that finding that the need is bona fide. 5. The tenant claimed protection of the second proviso to sub section (3) of Section 11. Both the statutory authorities have concurrently found that the second proviso to sub section (3) of Section 11 is in favour of the tenant. We have scanned the judgment of the appellate authority. We have made a survey of the evidence adduced by both sides in the context of the second proviso to sub section (3) of Section 11. It is trite by various decisions including the judgment of the Full Bench in Francis v. Sreedevi Varassiar (2003 (2) KLT 23) and the judgment of the Supreme Court in Kunhamma v.Akkali Purushothaman (2007 (3) KLT 599 (SC) that the burden to show that a tenant satisfies both the ingredients of the second proviso to section 11(3) is on the tenant and it is also trite that RCR.No.293/2008 5 both the ingredients are in the conjunctive and that unless the tenant establishes that he satisfies both the ingredients, he will not be entitled for the protection of the second proviso at all. In the instant case, it was only oral evidence that was adduced by the tenant for proving the first ingredient. He is admittedly running two establishments. Going by the nature of the business that he conducts (letter printing press & offset printing), there should be documents including accounts for proving the volume of business and the income derived from the business conducted in the two establishments. The non production of the documents is a circumstance which could justify drawal of adverse inference against the tenant. The same is the position as regards the availability of other buildings in the locality. The tenant adduced only oral evidence. The vacancy register or any other document was caused to be produced. He did not examine the accommodation controller to substantiate his contention that no other suitable buildings are available in the locality. He did not take out a commission for local inspection to show that no other buildings are available in the locality. Evidently the tenant was able to accommodate his offset printing press in 6 RCR.No.293/2008 another building just one year prior to the filing of the rent control petition. We are of the view that even regarding the second ingredient of the second proviso to sub section (3) of Section 11, the better evidence could have been adduced by the tenant. The finding by the learned appellate authority and by the rent control court that, the tenant has proved that he is entitled to the protection of the second proviso, is rendered on the basis of what is described by the learned appellate authority as admission from the mouth of PW1. We cannot agree with that finding . Oral evidence of PW1 or for that matter any witness is to be appreciated as a whole. When so appreciated it will be seen that PW1 has not made any such fatal admission as the learned appellate authority observes. 6. However we do not proceed to decide the issue finally. In view of the fervent request of Mr. Salil Narayanan, learned counsel for the tenant, that an opportunity be given to the tenant to adduce further evidence, we are inclined to grant such opportunity. however only on conditions. We notice that for the petition schedule building extending to about 450 sq.ft, the rent which is being paid by the tenant is only Rs.425/- per month. RCR.No.293/2008 7 This rate was fixed in the year 2000. The building is situated in Chathamangalam, where the Regional Engineering College and various other establishments and institutions are situated. We are sure that, if the building is let out today, the same will fetch at least 2000/- per month. We are inclined to refix the rent tentatively with effect from 1/1/2011 subject to the regular fixation of fair rent by the rent control court on application by either sides. 7. The result of the above discussion is, therefore, as follows; i). The order of the rent control court and the judgment of the appellate authority are set aside to the extent the same pertain to the finding that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. ii). The finding that the need is bona fide is confirmed. iii). The Rent control petition is remanded to the rent control court for considering the question whether the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. Both parties shall be at liberty to adduce whatever further evidence they want to in the context of the RCR.No.293/2008 8 above issue. iv). The rent payable by the respondent/tenant is fixed tentatively with effect from 1/1/2011 at Rs.2,000/- per month . This refixation is tentative and it is open to either party, if aggrieved, to approach the rent control court by filing regular applications under section 5(4) for fixation of fair rent. Till such time the fair rent fixed, the tenant shall pay rent at the rate of Rs.2000/- per month. v). The parties shall enter appearance before the rent control court on 22/12/2010. ## **PIUS C.KURIAKOSE,JUDGE** ## **P.S.GOPINATHAN, JUDGE** dpk