Abdul Salam v. Kadeeja and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 17TH DAY OF MARCH 2017/26TH PHALGUNA, 1938** **RCRev..No. 13 of 2017 (E) -------------------------** **AGAINST THE JUDGMENT IN RCA.64/2014 of ADDL. DISTRICT COURT, TIRUR DATED 31.10.2016** **AGAINST THE ORDER IN RCP.13/2013 of COURT OF RENT CONTROLLER, TIRUR DATED 30-09-2014** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **-----------------------------------------** **ABDUL SALAM, AGED 58 YEARS S/O. KUNHIKAMU, PALAMPARAMBIL HOUSE NIRAMARUTHUR AMSOM DESOM, TIRUR TALUK.** **BY ADVS.SRI.V.T.RAGHUNATH SMT.C.V.RAJALAKSHMI** ## **RESPONDENTS/RESPONDENTS/ PETITIONERS:** **-------------------------------------** **1. KADEEJA, AGED 50 YEARS W/O. KUNNEKKATT ABOOBACKER, THRIKANDIYUR AMSOM, MUTHUR DESOM, TIRUR TALUK MALAPPURAM DISTRICT-676101.** **2. MUHAMMED FAIZAL, AGED 30 YEARS S/O.KUNNEKKATT ABOOBACKER, THRIKANDIYUR AMSOM, MUTHUR DESOM, TIRUR TALUK MALAPPURAM DISTRICT-676101.** **3. MUHAMMED FAZIL, AGED 23 YEARS S/O. KUNNEKKATT ABOOBACKER, THRIKANDIYUR AMSOM, MUTHUR DESOM, TIRUR TALUK MALAPPURAM DISTRICT-676101.** **R1,R3 BY ADV. SRI.ARUN MATHEW VADAKKAN R1,R3 BY ADV. SRI.K.P.SUDHEER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**OKB**_ K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. --------------------------R.C.R. No.13 of 2017 --------------------------Dated this the 17[th] day of March, 2017 ## O R D E R ## Harilal, J. The revision petitioner is the tenant against whom the respondents have obtained an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, 'the Act'), which stands confirmed in appeal. The legality and propriety of the concurrent findings whereby the courts below granted eviction under Section 11(3) are challenged in this Revision. (The parties are referred to as in the Rent Control Petition.) 2. The landlord-tenant relationship is not disputed. According to the petitioners, the second petitioner has a temporary job as driver and the third petitioner has no job or any kind of avocation for his livelihood. The only income of their family is the earning of the second petitioner and RCR.13/17-E **:2:** the rent from the shop rooms. Hence the third petitioner needs the petition schedule shop rooms for starting a workshop-cum-spare parts sales shop. The respondent is not depending on the income from the business in the petition schedule shop rooms and there are many vacant buildings and shop rooms in the locality for shifting the business of the respondent from the petition schedule shop rooms. 3. On the other hand, the respondent contended that the bona fide need claimed by the petitioners is a ruse for eviction only and he is mainly depending on the income derived from his business in the petition schedule shop rooms. The petition schedule shop rooms form a part of the building, which consists of five rooms, and at the time of filing the petition, the petitioners were in possession of one vacant room, which was surrendered by another tenant, by name Ali Akbar. Earlier, the said room was let out to Ali Akbar for running a tea stall & cool bar and he had surrendered the said room to the petitioners before the RCR.13/17-E **:3:** filing of the RCP and it was let out to one Pramod and now he is running a tailoring shop and lottery ticket sales agency in that room. The third petitioner is an autorikshaw driver having sufficient means. The second petitioner has a goods autorikshaw. The petition is filed on the refusal of the respondent to give exorbitant rent demanded by the petitioners. After considering the evidence on record, the trial court found that the need put forward by the petitioners is a bona fide one and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. 4. Heard the learned counsel for the revision petitioner/tenant and the learned counsel appearing for the respondents/landlords. 5. The learned counsel appearing for the revision petitioner advanced his arguments assailing the findings under the first proviso to Section 11(3) of the Act. The learned counsel contends that it has come out in evidence that before filing the RCP another tenant by name Ali RCR.13/17-E **:4:** Akbar had surrendered the shop room which was in his possession and the respondents again let out the said shop room to one Pramod. Therefore it was incumbent upon them to assign special reasons for not occupying the shop room which was surrendered by Ali Akbar for starting the proposed business. According to the learned counsel, the courts below miserably failed to consider the evidence on record with respect to the first proviso to Section 11(3) of the Act, in its correct perspective. 6. On the other hand, the learned counsel for the respondents submits that the specific case of the petitioners in the RCP is that they need two adjacent rooms for starting the workshop-cum-spare parts sales shop and after getting possession of the petition schedule shop room the petition schedule shop rooms together can be made use of for the said purpose by removing the wall separating the two rooms. The shop room which was vacated by Ali Akbar is not an adjacently situated one, and it cannot be made use of jointly with anyone of the petition schedule shop RCR.13/17-E **:5:** rooms. Therefore, there was no circumstance to satisfy the court with special reason for not occupying the shop room, which was surrendered by Ali Akbar. In support of the aforesaid argument, the learned counsel for the respondents cited the decision of this Court reported in **George T.I. v. K.L. Stanley [2013 (4) KHC 543].** 7. Going by the pleadings, it is seen that as rightly submitted by the learned counsel for the petitioners, the specific case of the petitioners is that they want two adjacent shop rooms for starting the proposed business. It is not disputed that the room which was surrendered earlier by the said Ali Akbar is not the one situated adjacent to anyone of the petition schedule shop rooms. We are of the opinion that if the landlord was in vacant possession of another shop room or he has subsequently acquired vacant possession of another shop room from another tenant during the pendency of the proceedings, the question to be considered is whether the other vacant shop room in the possession of the landlord or RCR.13/17-E **:6:** subsequently acquired vacant shop room would satisfy the requirements of the landlord to start the proposed business. If the shop room which he has before the filing of the petition or the vacant shop room which he acquired after the filing of the petition would not satisfy the requirements of the landlord, it is not obligatory on the part of the landlord to assign special reason in his pleadings or evidence for not occupying the shop rooms which he has or subsequently acquired. But, if the tenant succeeds in proving vacant shop rooms in the possession of the landlord, which he had or acquired after filing the petition, it is obligatory on the part of the landlord to rebut such evidence by providing special reasons for not occupying such vacant room in his possession. The above view is supported by the decision of this court in **Kunju v. Fathima and Others [2014 (3) KHC 127)** wherein this Court held that landlord need not plead or prove particulars of all buildings in his possession to claim order of eviction under first proviso to Section 11(3) of the Act. RCR.13/17-E **:7:** The above view is further supported by the decision of this Court in **George T.I. v. K.L. Stanley [2013 (4) KHC 543]** , wherein this Court held as follows: “Mere fact that the landlord had an opportunity to get vacant possession of another room and did not start business does not mean that bona fide need cannot be said to be genuine. Several factors would go into the mind of the landlord and once a choice is made by landlord to take a particular room or rooms for his own occupation, even if, during the pendency of eviction petition, he comes in possession of another room that may be immaterial.” 8. Coming to the instant case, it is the specific case of the petitioners that two rooms adjacently situated are required for starting the proposed business. But, admittedly, even if the allegation is true, only one room was surrendered before the filing of the petition and that room is not situated adjacent to any of the petition schedule shop rooms. Therefore, there was no circumstance to assign special reasons for not occupying RCR.13/17-E **:8:** the said one shop room either in pleadings or in his evidence, in view of the specific pleadings in the petition that they require adjacently situated two rooms for the purpose of their business. 9. That apart, going by the impugned judgment, it could be seen that the respondent has examined RW2 to prove that 15 days before filing the petition RW2 had surrendered his shop room to the petitioners and thereafter the petitioners have let out the said two shop rooms to one Pramod. But, after evaluating the evidence of RW2, the courts below concurrently arrived at a finding that RW2 is a neighbour of the respondent and his evidence cannot be relied on to arrive at a finding that he had surrendered the shop room before the filing of the RCP. Besides, the alleged date of surrender of the shop room was not specifically proved and even if the evidence of RW2 is taken at its face value, his evidence will not prove that he has surrendered the shop room before the filing of the petition. In the chief affidavit, the respondent RCR.13/17-E **:9:** has deposed that the name of the shop room was 'Royal Cool Bar'. In Ext.C3 Report, the Commissioner has reported that the name of the shop room under the possession of Pramod is also 'Royal Cool Bar'. More over, there is no explanation from the respondent for nonexamination of Pramod, the person to whom the shop was allegedly let out, just before the filing of the petition. The respondent himself as RW1 has admitted that Pramod started the business in the said room in July 2013. but the present Rent Control Petition was filed on 12.4.2013. So it could be reasonably presumed that Ali Akbar was in possession of the shop room at the time of filing the Rent Control Petition. The courts below analysed the aforesaid evidence and rejected the contention of the respondent and rightly found that the evidence of RW2 is insufficient to discharge the burden of proof of the respondent to establish that the landlord has another vacant shop room of his own in his possession in the same locality. 10. Coming to the second proviso to Section 11(3) of RCR.13/17-E **:10:** the Act, the court below concurrently found that no evidence has been adduced to prove that the respondent is depending mainly on the income derived from the petition schedule shop room and no steps had been taken to prove the non-availability of alternative vacant shop rooms in the locality. We do not find any reason to interfere with the concurrent findings on a factual issue. There is no illegality or impropriety in the concurrent findings of the courts below and no reason to interfere with the said findings. 11. At last, the learned counsel for the revision petitioner sought for some time to surrender the petition schedule shop room. The learned counsel for the respondents opposed the said request. But, this Court is of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule shop room, on terms. The revision petitioner shall surrender the petition schedule shop room within six months provided that he could comply the conditions given below within the RCR.13/17-E **:11:** ## specified time. - i) The revision petitioner shall file an affidavit before the Execution Court expressing an unconditional undertaking to surrender the petition schedule shop room within a period of six months from today and the said affidavit must be filed within one week from the date of receipt of a copy of this order. - ii) The revision petitioner shall pay entire arrears of rent to the respondents or deposit the same before the Execution Court within one week from the date of receipt of the copy of this order and he shall continue to pay rent without default. - iii) In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the respondents will be at liberty to proceed with the execution. This Rent Control Revision is dismissed. K.HARILAL, Judge. RAJA VIJAYARAGHAVAN.V. Judge. okb.