Abdul Rasheed S/o Muhammed Yusuf v. Seethalakshmi and others (Rent Control Revision)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939 RCRev..No. 257 of 2016 () -------------------------RCA 49/2011 of THE RENT CONTROL APPELLATE AUTHORITY,( II ADDL.DISTRICT COURT) ,PALAKKAD DATED 20-02-2016 RCP 38/2010 of THE RENT CONTROL COURT, (ADDL.MUNSIFF COURT), PALAKKAD DATED 29-07-2011 ## REVISION PETITIONER/APPELLANT/RESPONDENT: --------------------------------------------------------------- ABDUL RASHEED S/O. MUHAMMED YUSUF, AGED 65, LAILA TOBACCO STORES, DOOR NO. 31/664, MARKET ROAD, BIG BAZAAR, PALAKKAD-14, PALAKKAD TALUK AND DISTRICT. BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/RESPONDENTS NO. 2 TO 5/ LRS OF THE PETITIONER: ------------------------------------------------------------------------ ## 1. SEETHALAKSHMI W/O. LATE T.V.KRISHNA IYER, (WRONGLY SHOWN AS VENKITESWARA IYER IN THE IMPUGNED JUDGMENT), AGED ABOUT 75, NOORANI VILLAGE, NOORANI POST, PALAKKAD.- 678 508 ## 2. N.K.PARVATHY D/O. LATE T.V.KRISHNA IYER, AGED 56, NOORANI VILLAGE, NOORANI POST, PALAKKAD-678508 ## 3. N.K.VENKITARAMAN S/O. LATE T.V.KRISHNA IYER, AGED 46, NOORANI VILLAGE, NOORANI POST, PALAKKAD-678508 ## 4. N.K.LAKSHMANAN S/O. LATE T.V.KRISHNA IYER, AGED 46, NOORANI VILLAGE, NOORANI POST, PALAKKAD-678508 R1 BY ADV. SRI.O..RAMACHANDRAN NAMBIAR (CAVEATOR) R1-R4 BY ADV. SRI.O.RAMACHANDRAN NAMBIAR R1-R4 BY ADV. SRI.GEEN T.MATHEW THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-102017, ALONG WITH RCR. 299/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HARILAL & A.M.BABU, JJ. --------------------------R.C.R. Nos.257 & 299 of 2016 --------------------------Dated this the 20[th] day of October, 2017 ## **ORDER** ## Harilal, J 1.These revisions are filed against the common judgment passed in RCA Nos.49/2011 and 53/2011 on the files of the Rent Control Appellate Authority, Palakkad. RCA No.49/2011 was filed by the revision petitioner/tenant in RCR.257/2016 challenging the order of eviction passed against him under section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”) and RCA No.53/2011 was filed by the revision petitioners/tenants in RCR No.299/2016 challenging an order of eviction passed against him under section 11(3) of the Act. The parties are referred to as in the Rent Control Petition. 2.In RCR No.257/2016, the case of the petitioner ## **RCR.257 & 299/16** is that he is conducting tobacco business in the adjacent shop room and he is suffering from space constraint. He is being assisted by his two sons in his business and they need to expand the business so as to augment the income from the business. So, he bona fide needs the petition schedule building. His business is a seasonal business and during such seasons he has to collect the necessary stock which will need bulk space during supply periods, though at other times such a constraint may get relaxed to some extent, when stocks are sold out. So he can resolve the space constraint by getting additional space and accommodation for keeping the stocks of trade articles during seasons of availability. - 3.The respondents resisted the said claim for additional accommodation contending that so much space is not required for tobacco business. If the stock is kept for more than two months, there will be weight loss. The two sons of the petitioner were rarely seen in the shop and the ## **RCR.257 & 299/16** story of expansion is only a ruse for eviction. The petition schedule shop room is not required for expansion as the existing shop room is sufficient for the same. The income derived from the petition schedule shop room is the main livelihood of the respondents. Therefore, if they are evicted from the petition schedule shop room, they will be put to hardship and great loss. - 4.In R.C.P.39/2010, the case of the petitioner is that he bona fide needs the petition schedule shop room for shifting the business of his sons from Noorani, a place 5 Kms away from the petition schedule room. According to the petitioner, he has already filed R.C.P.38/2010 seeking additional accommodation for expanding his existing tobacco business with the assistance of his two sons who are conducting confectionery business at Noorani. If the business is shifted to the petition schedule room, the petitioner will get support of his sons. That apart, the petition schedule shop ## **RCR.257 & 299/16** room is situated in the commercial hub of Palakkad Town whereas the petitioner's sons' existing shop room is situated at a place 5 Kms away from the petition schedule shop room in a residential area. Neither the petitioner nor his sons are in possession of any vacant shop rooms of their own and several other vacant shop rooms are available in the locality for shifting the business of the respondent from the petition schedule shop room. 5.The respondent resisted the said contention contending that the bona fide need projected in the petition is a ruse for eviction only. The petitioner as well as his sons has other commercial enterprises within the Palakkad Municipality and the need for additional accommodation for expanding the existing business is also an utter falsehood. Further they contended that they are entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act, as they are mainly depending on the income from the tenanted premises and no other ## **RCR.257 & 299/16** alternative buildings are available in the locality. 6.On the aforesaid rival pleadings, both parties adduced evidence and after considering the evidence on record, the trial court allowed R.C.P.38/2010 on a finding that the need for additional accommodation projected in the petition is a bona fide one. Similarly, the Rent Control Court allowed R.C.P.39/2010 on a finding that the need projected in the petition is bona fide and the respondents are not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. Though both the tenants have preferred appeals, the Appellate Court also confirmed the findings of the Rent Control Court as such and dismissed the appeals. Thus, the legality and propriety of the concurrent findings under Sections 11(8) and 11(3) of the Act have come up in these Revisions. - 7.Heard the learned counsel for the revision petitioners and the learned counsel appearing **RCR.257 & 299/16** ## for the respondent. 8.Though, the learned counsel for the revision petitions argued exhaustively challenging the concurrent findings of the court below, they mainly focused their argument on three points. Firstly, it is contended that the original landlord/petitioner has died on 20.05.2015 and thereby the bona fides of the need projected in both petitions has ceased to exist. Though the petitioner in R.C.P.39/2010 has filed an I.A.2008/2015 with a prayer to reopen the RCP in view of the death of the original landlord, enabling the respondents to adduce further evidence, the said application was not considered by the Appellate Authority. Therefore, according to the learned counsel appearing for the respondents, the subsequent events having fundamental impact on the bona fides of the need projected in the petition requires a fresh consideration. Secondly, it is contended that though the petitioner was crossexamined exhaustively assailing the bona fides ## **RCR.257 & 299/16** of the need, the matters elicited in crossexamination were not considered by the courts below. According to the learned counsel for the respondent in R.C.P.38/2010, it has come out in evidence that the vacant space available in the existing shop room is sufficient to stock five times of the existing stock. But the courts below have omitted to consider the availability of existing vacant space while considering the need for additional accommodation. Thirdly, it is contended that the Rent Control Court has not properly considered the comparative hardship contemplated under Section 11(10) of the Act and the Appellate Authority has omitted to consider the findings of the Rent Control Court in the appeal. 9.Per contra, the learned counsel for the respondent advanced arguments to justify the concurrent findings of the courts below under Section 11(8) and 11(3) of the Act. According to the learned counsel, the evidence available on record would justify the concurrent findings of ## **RCR.257 & 299/16** the courts below. It is also contended that though the original landlord expired during the pendency of the appeal, his sons continued to do the business and they also require the additional accommodation for expanding their business. 10.We have meticulously analyzed the concurrent findings of the courts below, in view of the arguments at the bar. It is not disputed that the original landlord expired on 20.05.2015. According to the respondents in both RCPs, the death of the original landlord caused fundamental impact on the bona fides of the need in both petitions. The said contention stands fortified by the application filed by the respondent in R.C.P.39/2010 before the Appellate Authority to reopen the case to assess the impact of the death on the bona fides of the need projected in the petition. In R.C.R.257/2016, the respondents in R.C.P.38/2010 has filed a petition stating that the death of the original petitioner has caused fundamental ## **RCR.257 & 299/16** impact on the bona fides of the need as the said shop is seldom open for business after the death of the original landlord and the said fact would clearly come out if monthly Kerala Valued Added Tax Returns, Annual Value Tax returns, Annual statement of accounts of trading and statement of bank accounts for the period 2014-2017 in connection with the business in the tenanted premises are produced in evidence. They prayed for issuance of a direction to the petitioner to produce the aforesaid documents. 11.Though the petitioner has filed a counter statement denying the said contention, nothing has been stated as regards the continuation of the business and the payment of tax after the death of the original landlord. The learned counsel for the petitioner submits that they are ready to produce the aforesaid documents if required. Both petitions are filed under the bona fides of the need for additional accommodation and the need for shifting the exiting business of the original petitioner's ## **RCR.257 & 299/16** sons from distant place to the petition schedule shop room in R.C.P.39/2010. 12.Needless to say, the bona fide need is a state of mind perceived in the mind of the deceased original landlord only and the need is always that of the landlord. Certainly the legal heirs have right to continue the business after the death of landlord and the same is recognized by the Act also. As far as the additional accommodation is concerned, there arises a question whether the legal heirs also need the petition schedule shop room for additional accommodation so as to expand their existing business. We are of the opinion that if they ceased to continue the business, it cannot be said that the bona fide need projected in the petition is still existing. Same is the position in the case of R.C.P.39/2010 also. In short, we find that in both R.C.Ps the death of the original landlord has caused fundamental impact on the bona fides of the additional accommodation and the need projected in the ## **RCR.257 & 299/16** ## petition. - 13.In the decisions in Pratap Raj Tanwani v. Uttam Chand (2005 (1) KLT 124) and in Sumathi v. Rabia (2012 (1) KLT 595) the court held that if the subsequent events have fundamental impact on the bona fides of the need the same also can be considered during the continuation of the litigation. In the instant case, after the death of respondent in R.C.P.39/2010, an application was filed for assessing the bona fides of the need. But the said application was not considered by the appellate Authority. In the above view we find that the bona fide needs require fresh consideration in view of the subsequent events. - 14.As rightly contended by the learned counsel for the respondent we find that though the petitioner was meticulously cross-examined at length, nothing was considered while considering the bona fides of the need. We have gone through the cross examination and we find that the bona ## **RCR.257 & 299/16** fide need for additional accommodation requires fresh consideration in view of the evidence elicited in cross-examination of PW1. 15.Coming to the comparative hardship, going by the order passed by the Rent Control Court, we find that the Rent Control Court has not properly considered the above point. Similarly the Appellate Court has not considered the evidence available on record or the findings of the Rent Control Court under the comparative hardship contemplated under Section 11(10) of the Act. - 16.In the above analysis, we set aside the impugned order and judgment passed by the Courts below and the Rent Control Petitions are remitted back to the Rent Control Court for fresh consideration and disposal, after affording both parties to adduce further evidence and to amend respective pleadings also. Needless to say, the remand is an open remand and the Rent Control Court shall dispose of the ## **RCR.257 & 299/16** Rent Control Petitions at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this order. The parties shall appear before the trial Court on 15.11.2017. Sd/- **K.HARILAL Judge** **Sd/A.M.BABU Judge** Mrcs/20.10 //True Copy// P.S.To Judge