Abdul Samad v. Amina C.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 16TH DAY OF AUGUST 2017/25TH SRAVANA, 1939 RCRev..No. 51 of 2016 () ------------------------RCA 24/2014 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KALPETTA, WAYANADU DATED 29-10-2015 RCP 4/2013 of RENT CONTROLLER (MUNSIFF-MAGISTRATE), SULTHAN BATHERI DATED 30-08-2014 REVISION PETITIONER/APPELLANT IN R.C.A NO 24/2014 AND RESPONDENT IN R.C.P NO.4 2013: -------------------------------------------------------------------------------------- ABDUL SAMAD, AGED 43 YEARS, S/O. MAYINKUTTY,NOW RESIDING AT PADIKKAMANNIL HOUSE, CHUNDALE P.O, VYTHIRI TALUK, WAYANADU DISTRICT BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENTS/RESPONDENTS IN R.C.A NO 24/2014 AND PETITIONERS IN R.C.P NO 4/13: ------------------------------------------------------------------------------- AMINA.C,W/O. CHARUVIL AHMMEDKUTTY, AGED 63 YEARS, REPRESENTED BY POWER OF ATTORNEY HOLDER, AHAMMEDKUTTY, AGED 66 YEARS, S/O. HAMZA HAJI, CHARUVILA HOUSE, THERVAYAL, KUPPADI AMSOM & DESOM, SULTHAN BATHERY TALUK BY ADV. SRI.C.P..MOHAMMED NIAS (CAVEATOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16-082017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R.51 of 2016 - - - - - - - - - - - - - - - - Dated : 16[th] August, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## A.M.Babu, J. - 1.Tenant is in revision. His eviction was sought under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short the Act). The rent control court as well as the appellate authority found the need of the landlady to be bona fide. Parties are referred to in this order as they are shown in the rent control petition or as landlady and tenant. - 2.The case of the petitioner may be briefly stated as follows : She owns the room shown in the schedule to the rent control petition. The same was tenanted to the respondent. The petitioner needs the tenanted room in order to accommodate her husband to enable him to do business in vegetables. The petitioner is not in possession ## **RCP.51/2016** 2 of any room for the said purpose except the one on the rear side of the main building. The said room is not at all suitable for the business proposed to be conducted by the husband of the petitioner. 3.The respondent/tenant raised the following contentions : The husband of the petitioner who filed the petition as the power of attorney holder had no right to file it. Therefore the petition itself is not maintainable. The husband of the petitioner is not depending on her. The husband has other properties in which he can do business. The petitioner also has several other rooms in her possession. The petitioner and her husband being multimillionaires cannot be expected to do business in vegetables in the premises tenanted to the respondent. RCP 5/2012 filed by the petitioner for eviction on the very same ground was dismissed. The intention of the petitioner is to evict the tenant somehow or other. He is depending for his livelihood solely on the income derived from the business run in **RCP.51/2016** 3 - the tenanted premises. He has no other means for his livelihood. No suitable alternative building is available in the locality for him to carry on his business. - 4.Before the trial court PW1 and RW1 were examined and Exts A1 to A6 and B1 to B10 were marked. The trial court as well as the appellate authority found the need of the petitioner to be bona fide. It was also found that the respondent was not entitled to be protected under the 2[nd] proviso to Sec.11(3) of the Act. - 5.Heard Sri.Varghese C.Kuriakose, the learned counsel for the tenant. Heard Sri.C.P.Mohammed Nias who appears for the landlady. - 6.The eviction of the tenant was sought and granted under Sec.11(3) of the Act. The need alleged by the petitioner was to accommodate her husband to do business in vegetables. Both the courts below on appraisal of the evidence found the ground bona fide. **RCP.51/2016** 4 - 7.The learned counsel for the tenant raised two technical contentions. One of the contentions was that the petitioner was not the landlady. It was contended that the landlord was her husband who was examined as PW1. In this connection the learned counsel submitted that Ext A1 power of attorney and Ext A2 lease agreement would form part of the pleadings and that Exts A1 and A2 would suggest that the petitioner was not the landlady, but her husband was the landlord. It was submitted that the agreement was directly between PW1 and the tenant. It was also pointed out that in the objection filed by the tenant it was specifically disputed the right of the petitioner to file the rent control petition. We shall consider these submissions. - 8.Admittedly the petitioner is the owner of the building. Ext A1 is the power of attorney executed by her in favour of her husband. As per Ext A1 she had given the authority to him to lease out the premises, collect rent et cetera. **RCP.51/2016** **==> picture [7 x 9] intentionally omitted <==** Ext A2 lease agreement was executed under the authority granted under Ext P1 power of attorney. Therefore we do not find any merit in the argument that the person who filed the rent control petition had no authority to file it or that the person who was entitled to file the petition was PW1. 9.The learned counsel for the tenant has submitted that although several powers have been given to the husband by the wife under Ext A1 power of attorney, no power was granted under it to give evidence in the case. We do not find it necessary that such a specific power should be given so as to examine PW1 as a witness. PW1 is not a party in the case, but only a witness. It was for accommodating the said witness eviction was sought. He is therefore the most competent witness to speak to his intention and plan to do the proposed business. That apart, the husband is entitled to give evidence on behalf of his wife as permitted under Sec.120 of the Indian Evidence Act. But the husband who gives evidence **RCP.51/2016** 6 on behalf of the wife should depose to the facts directly from his knowledge. In the present case it is so since the very need of the wife to evict the tenant is to accommodate the husband who gave evidence as PW1. - 10.The next technical contention of the learned counsel for the petitioner is that the rent control petition is barred under Sec.15 of the Act. Sec.15 directs summary rejection of an application for eviction filed under Sub-Sec. (2), (3), (4), (5), (7) or (8) of Sec.11 of the Act which raises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided in a former proceedings under the Act. It is clear from Sec.15 itself that such summary rejection of an application is possible only if the issues substantially the same have been finally decided in a former proceedings. The word carefully used in Sec.15 is 'issues' and not the 'case'. Sec.15 is not that if a case has been finally decided, the **RCP.51/2016** **==> picture [7 x 9] intentionally omitted <==** second application should be summarily rejected. It therefore goes without saying that in order to attract Sc.15 there must be a decision on the merits of the case. In this connection we place reliance on Radha Lekshmi G. v. Indian Saree House (2014 (2) KHC 567). The earlier Rent Control Petition, RCP 5/2012, was dismissed for default. Such a dismissal will not bar a second application. 11.We are not in agreement with the technical objections raised by the learned counsel for the tenant. On merits the tenant has no case at all. The courts below discussed the evidence in the case in detail and came to a conclusion which could not be held illegal or perverse. PW1 may be a multimillionaire as stated by the learned counsel for the tenant. That does not mean that he cannot or he has no idea to do trade in vegetables. The vegetable business can also be done in a large scale. If PW1 is wealthy, it only means that he has sufficient means to start the business even in large scale. We find that **RCP.51/2016** 8 the evidence of PW1 on the point has not been shaken in cross-examination. - 12.Admittedly the petitioner is in possession of another room. Admittedly the said room is on the back side of the building. The room without road frontage is not suitable to run a vegetable shop as held by both the courts below. It is indeed a special reason within the meaning of the 1[st] proviso to Sec.11(3) of the Act. - 13.The tenant claimed protection under the 2[nd] proviso to Sec.11(3) of the Act. The 1[st] limb of the proviso was found in favour of the tenant by the courts below. We leave it there. So far as the 2[nd] limb is concerned, the evidence suggests that PW1 had pointed out the availability of several vacant rooms in the locality. It is clear from the evidence of RW1 that he did not do anything seriously to search for an alternative accommodation. All these matters have been considered by the courts below. It is not necessary to reproduce the evidence in the **RCP.51/2016** 9 case as we find no perversity or illegality in the decision taken by the courts below. We therefore find no merit in the revision. The same deserves only a dismissal. 14.At this juncture the learned counsel for the tenant has submitted that the business run in the tenanted premises being a medical shop some time is necessary to shift the business. The learned counsel requests for one year's time which we are not inclined to grant. However, we consider the facts that the petitioner is running a medical shop and that he may require a breathing time to shift his business to another premises. We find it just and proper to grant the tenant a period of eight months from today to vacate the premises subject to the conditions we impose. - 15.The revision is dismissed. In the circumstance of the case, we direct the parties to suffer their own costs. The tenant is given a period of eight months to vacate the premises on the 10 ## **RCP.51/2016** following conditions. He shall file an affidavit before the rent control court undertaking to vacate the premises within a period of eight months from today (16.08.2017). The affidavit shall be filed within a period of two weeks from today. Arrears of rent, if any, shall be cleared within a period of one month. Rent shall be paid till vacating the premises on or before the due date. Sd/- **K.HARILAL Judge** **Sd/A.M.BABU Judge** Mrcs/16.8 //True Copy// P.S.To Judge