Abdulla Paika v. Abbas M.A.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 23RD DAY OF JANUARY 2018 / 3RD MAGHA, 1939** **RCRev..No. 29 of 2018** **AGAINST THE JUDGMENT IN RCA 22/2016 of D.C. & SESSIONS & MACT,KASARAGOD DATED 24-10-2017** **AGAINST THE ORDER IN RCP 4/2016 of PRL.MUNSIFF, KASARAGOD DATED 28-10-2016** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **ABDULLA PAIKA AGED 52 YEARS, S/O ABDULKHADER, RESIDING AT PAI COMPOUND, BADADKA ROAD, KUMBLA. P.O., MANJESHWAR TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.KODOTH SREEDHARAN SMT.C.B.SUMA DEVI** ## **RESPONDENT/RESPONDENT/PETITIONER:** **ABBAS.M.A AGED 45 YEARS, S/O MOHAMMED HAJEE,BR/AT KUNDUVAKILU HOUSE,(NOW WORKING AT BATTA OF RIYAD), ICHILAMPADY VILLAGE, KODIYAMMA P.O., KASARAGOD DISTRICT.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.01.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 29 of 2018** **2** ## C.T. RAVIKUMAR & MARY JOSEPH, JJ. ## ========================= ## R.C.R. No.29 of 2018 ========================= Dated this the 23[rd] day of January, 2018 ## O R D E R ## C. T. Ravikumar, J. This revision petition is directed against a concurrent finding of the courts below in an application filed seeking eviction of the revision petitioner under Sections 11(2) and 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for brevity). The respondent herein, the landlord, moved the said petition raising grounds of non-payment of rent and his bonafide need for non-occupation. In the petition, it has been stated that he is employed abroad and since the working situation therein became worse he returned India and to earn his livelihood he wanted to start a business of household articles in the tenanted premises. The revision petitioner herein/the respondent therein controverted the contentions stating that the landlord is a multimillionaire and therefore, it is nothing but a ruse to evict him and he did not really have an intention to start the business. Before the Rent Controller Court, the landlord gave evidence as PW1 and the revision petitioner gave evidence as RW1. Besides getting himself examined on the side of the respondent/the landlord, he got marked Exts.A1 to A5. No documentary evidence was adduced on the side of the Revision Petitioner. The Rent Control Court evaluated the evidence on record and appreciated the rival **RCRev..No. 29 of 2018** **3** contentions and passed an order allowing the petition under both the grounds mentioned hereinbefore. Dissatisfied with the said order passed by the Rent Control Court, the revision petitioner herein preferred an appeal as RCA No.22/2016. However, the Appellate Authority declined to accept his contentions and consequently confirmed the order passed by the Rent Control Court. Hence this Revision Petition. 2. Before adverting to the contentions raised by the Revision Petitioner herein to canvass the case of perverse appreciation of evidence while considering the question whether the respondent-landlord had established the bonafide need, it is only worthwhile to refer to a Constitution Bench decision of the Hon'ble Apex Court in Hindustan Petroleum Corporation (L) v. Dilbahar singh [2014 (4) KLT 182] on the question of jurisdictional limit of this Court in the matter of exercise of revisional power. In paragraph No.45 therein, the Hon'ble Apex Court dealt with the matter. As per the decision a finding of fact recorded by authorities below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, it is open to correction because it is not treated then as a finding according to law. The Apex Court went on to held that in such circumstances the High Court could exercise its revisional jurisdiction under the Rent Control Act and the High Court would be entitled to set aside the impugned order as being not legal or proper. Bearing in mind the exposition of the law by the Hon'ble Apex Court in the said decision, we will appreciate the contentions raised by the learned counsel to **RCRev..No. 29 of 2018** **4** compel us to exercise the revisional jurisdiction. 3. There is no dispute regarding the tenancy. As noticed hereinbefore, the bonafide need projected by the respondent/landlord is that he intended to start a business of household articles in the petition schedule building. The very contention of the revision petitioner herein/the respondent therein that the petitioner is a multimillionaire, itself would reveal that he did not dispute the ability of the respondent landlord to start such a business. But his case is that, being a multimillionaire he would not start a business in household articles in the petition schedule building. We afraid, the said contention cannot be countenanced. There can be little doubt with respect to the position that it is for the landlord to decide what business he should start. One cannot say that being a multimillionaire one could not start a business of household articles. The core contention of the revision petitioner is that earlier the respondent/the landlord had issued a notice, viz., Ext.P1 notice, dated 26.03.2015, requiring him to surrender vacant possession of the petition schedule property. It is to be noted that in Ext.P1 also starting of a business was projected as the requirement. The contention of the revision petitioner is that after issuing such a notice without filing a petition for evicting the revision petitioner the respondent/the landlord went abroad to pursue with his employment there. In such circumstances, according to the revision petitioner the respondent/the landlord could not be heard to contend that the need projected in the petition is a bonafide one and it is in the said circumstances that he would contend that it is nothing but a ruse to evict him from the tenanted premises. 4. In that context, it is to be noted that under Section 11(2) of the Act **RCRev..No. 29 of 2018** **5** issuance of notice is not mandatory except in a case covered by Section 11(2) of the Act. In such circumstances, merely because after issuing such a notice, the respondent/the landlord went abroad cannot be taken as a circumstance to doubt the bonafide need projected by the landlord in the Rent Control Petition. Even otherwise, that cannot be a reason for holding that subsequently, it cannot be projected as a ground taking note of the Act he had not then approached the Rent Control Court with that requirement unsuccessfully. That apart, he had explained while being examined as PW1 that he went abroad as he did not want to sit idle at home. It is also to be noted that the revision petitioner did not have a case that the respondent was given a reply revealing his readiness to give vacant possession. Be that as it may, as noticed hereinbefore, the evidence on record would reveal that the respondent/the landlord is having the capacity and ability to start a business on household articles even going by the case of the revision petitioner. Though the revision petitioner contended that the landlord is having his own shop room abroad and is conducting business there, the landlord repudiated such contentions and he deposed that he is conducting only a business in a room belonging to an Arab native. Furthermore, he deposed that the working condition abroad is becoming worse and that virtually persuaded him to return home and start a business. That apart, even if a person who works abroad intends to come back and start some business how can a tenant say that the landlord should remain there so as to enable him go on with his business. No person can be compelled to continue to stay back in a foreign country and pursue with his employment there and it is essentially for that person to decide when he should return home. On going **RCRev..No. 29 of 2018** **6** through the manner in which the evidence on record for deciding the issue of bonafide need was considered by the courts below, we do not find absolutely no reason at all to hold that it is a perverse finding or it is a finding unsupported by any evidence. So also, it cannot be said that it is an outcome of misreading of the evidence. In such circumstances, in the light of the decision of the Hon'ble Apex Court in Dilbahar Singh's case (supra), we do not find any reason to interfere with the finding of the courts below that the respondent/the landlord had established his bonafide need. Then the question is whether the other contention of the revision petitioner that his entitlement to the benefits under the first and second provisos to Section 11(3) was perversely considered by the courts below. In that regard, it is to be noted that his own evidence as RW1 would reveal that the up-stair rooms available in the tenanted premises are not suitable for conducting a business. While being examined as RW1, he would admit the fact that they are not suitable for shifting his business. He also deposed while being cross examining that the width of the stair case to the up-stairs is very less and therefore, no business could be conducted there. Furthermore, he deposed that there is leakage in up-stairs room. Thus, his own evidence would reveal that no business could be conducted profitably in the space available in the up-stairs. In this context, it is also to be noted that the landlord had offered such accommodation to the revision petitioner and it is to reject the said offer of accommodation that he revision petitioner assigned such a reason. When he himself brought out a case that the rooms in the upstairs are not suitable for conducting a business profitably, the mere existence of such rooms cannot be a reason to decline an order in favour of the respondent- **RCRev..No. 29 of 2018** **7** landlord. Coming to the question whether the revision petitioner is entitled to get the benefit under the second proviso to Section 11(3) of the act, it is relevant to refer to certain facts. According to him, he is conducting business in ready-made textiles, fancies, books, stationery and mobile phone. The authorities below found that it is highly unbelievable that such a person who is conducting such business is not keeping books of account. In such circumstances, it is held by the authorities below that mere assertion that, he depends mainly on the income derived from the business being conducted in the petition schedule buildings cannot be accepted and acted upon for the purpose of arriving at a conclusion that it is his main source of income. That apart, it has come out in his evidence that he had not conducted an enquiry about the availability of vacant rooms in the locality for the purpose of shifting his business. In other words, he has not proved non-availability of any suitable vacant room in the locality to shift the business being conducted in the tenanted shop room. 6. In such circumstances, we are of the view that the conclusions arrived at by the authorities below that the revision petitioner had failed to establish the grounds to show that he is entitled to the benefit under the second proviso to Section 11(3) also cannot be said to be illegal or improper, warranting an interference. In short, after hearing the learned counsel and considering the contentions in the light of the decision in Dilbahar Singh's case (supra), we do not find any reason to hold that the revision petitioner has made out a case warranting intervention in exercise of the revisional jurisdiction. While we are about to part with the judgment the learned counsel appearing for the revision petitioner **RCRev..No. 29 of 2018** **8** submitted that some breathing time may be granted to the revision petitioner to give vacant possession of the room in question. We are of the considered view that eleven six month's time from today can be granted in that regard. The revision petitioner shall file an affidavit carrying such an undertaking before the Rent Control Court to the effect that he would vacate the room in question within the aforementioned period. Needless to say that for availing the said benefit, he shall deposit the arrears of rent and shall also continue to pay the rent at the admitted rate. Subject to the above, this revision petition is dismissed. Sd/- ## C.T. RAVIKUMAR, JUDGE Sd/MARY JOSEPH, JUDGE SKK/ad/191118