Abdurahman v. C. Asokan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940** ## **RCRev.No. 284 of 2014** **AGAINST THE JUDGMENT DATED 31-10-2013 IN RCA 19/2010 of THE RENT CONTROL APPELLATE AUTHORITY, TIRUR** **AGAINST THE ORDER DATED 19-03-2010 IN RCP 27/2008 of THE RENT CONTROLLER, TIRUR** ## **REVISION PETITIONER/ APPELLANT/ RESPONDENT :** **ABDURAHMAN, AGED 43 YEARS, S/O.KUNNATHAKATH ABDULLA, NIRAMARUTHUR AMSOM AND DESOM, NIRAMARUTHUR P.O, TIRUR TALUK** **BY ADV. SRI.GEORGE POONTHOTTAM (SR.)** ## **RESPONDENT/ RESPONDENT/ PETITIONER :** **C. ASOKAN, AGED 47 YEARS, S/O.CHEMMANUJR PADMAVATHI AMMA, ASOK, THRIKKANDIYUR AMSOM AND DESOM, TIRUR TALUK** **BY ADV. SMT.N.DEEPA** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev.No. 284 of 2014** 2 ## **ORDER** ## **Annie John, J.** The revision petitioner is the tenant of two shop rooms in a building belonging to the respondent. He has been occupying the rooms from 2002 onwards. Initially he was conducting business in aluminium utensils. Now he is conducting business in ladies garments. 2. The respondent filed the rent control petition seeking eviction of the revision petitioner under section 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act). According to the landlord, the tenant had violated the terms of the lease and had demolished the partition wall between the two rooms, whereby the value and utility of the building was badly affected materially and permanently. According to the landlord, **RCRev.No. 284 of 2014** 3 he intends to conduct a super market in the petition schedule building and that he _bona fide_ needs the petition schedule shop building. 3. The tenant filed a counter statement denying the averments in the rent control petition. According to the tenant, the landlord has no intention to start a super market in the petition schedule building and he does not _bona fide_ requires the petition schedule building for the said purpose. 4. The Rent Control Court by order dated 19.3.2010 allowed eviction under section 11(3) and rejected the prayer under 11(4)(i) of the Act. The finding under section 11(4) (i) has become final since the same was not challenged in appeal by the landlord. Aggrieved by the order of the court below, the tenant filed revision before this court. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. **RCRev.No. 284 of 2014** 4 6. The revision petitioner is the tenant and the respondent is the landlord. There is no dispute with regard to the landlord-tenant relationship. The respondent/ landlord has sought for eviction of the revision petitioner on the ground of _bona fide_ requirement. According to the revision petitioner, the need projected by the respondent is not at all _bona fide_ . The definite case of the respondent/ landlord is that he _bona fidely_ requires the petition schedule shop room for conducting a super market for selling grossery items, vegetables, stationery books, plastic items, cosmetics, footwear etc. for which he wants to occupy the entire building. When the respondent was examined as PW1, he has deposed that he obtained vacant possession of other rooms in the building as per the order in Ext.A1 in RCP.No.28/2008 and he is eagerly waiting for getting possession of the petition schedule shop room for starting his business. The **RCRev.No. 284 of 2014** 5 learned counsel for the revision petitioner has argued that the case of the petitioner is mainly on the ground that the petitioner has not initiated any steps to get vacant possession of the room which lies in between the petition schedule shop room and the rooms evicted from other tenant and also has taken an argument that the petitioner has not mentioned about the existence of such a room in the petition itself is more than sufficient to hold that the need projected by him is without any _bona fides_ . 7. In this connection, it is very important to note Exts.C1 and C2 sketch prepared by the Advocate Commissioner wherein it was stated that one room which lies between the petition schedule shop room and the other room for which the order of eviction is obtained by the petitioner as per Ext.A1 is still in the possession of the tenant, who is conducting a jewellery shop by name Ajees jwellery. It is true that the **RCRev.No. 284 of 2014** 6 respondent has not mentioned the existence of such a room in the petition and it is admitted by the respondent that he has not taken any steps to vacate the tenant which occupies in the room situated in between the petition schedule shop room and other room on the basis of assurance that he would surrender the vacant possession of that room as and when required. It is a general principle of law that the meticulous pleading is not required in a case of Rent Control Petition. So, the suppression of fact that the respondent had not initiated any steps to get vacant possession of the room which lies in between the petition schedule shop room and other room will not in any way create a negative impact on the petitioner's need for _bona fide_ requirement. 8. It was further contended by the learned counsel for the revision petitioner that the respondent is a person having several other source of income and **RCRev.No. 284 of 2014** 7 is a well known businessman in the locality. But, there is no evidence forthcoming to establish the same. In fact, the income of the respondent/ landlord is not a main criteria to deny the requirement sought for getting vacant possession of the petition schedule shop room. On the other hand, the revision petitioner has also taken a contention that the respondent has no previous experience in the proposed business. But, this fact has also not to be considered in the light of decision in _**Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkune and another [AIR 1999 SC 2227] and**_ also held in _**George v. Stanley [2013 (4) KLT SN 23 No.21]**_ . It is proved that as per Ext.A1 document, the petitioner has already obtained an order of eviction of other rooms in the building and he has also got the assurance from the sole remaining tenant, who is conducting Ajees jwellery that he would be surrendering the vacant possession of the room as and **RCRev.No. 284 of 2014** **==> picture [6 x 8] intentionally omitted <==** when required. RW1 while he was in court has admitted that the building in question is highly suitable for launching the proposed business. So, the _bona fide_ requirement as pleaded by the respondent is found to be genuine. Accordingly, the Rent Control Court as well the Rent Control Appellate Court has held that the _bona fide_ need as urged by the respondent is found to be correct. 9. There was an attempt on the part of the revision petitioner to establish that the respondent is in possession of other vacant rooms. PW1 when he was in the box has deposed that there is no other suitable building in his ownership or possession for launching his proposed business. So, the revision petitioner is not entitled for the benefit of the first proviso to Section 11(3) of the Act. The evidence adduced by the PW1 as well as RW1 coupled with Ext.C1 report regarding the availability of the vacant rooms in the **RCRev.No. 284 of 2014** 9 locality would go to show that the revision petitioner is not entitled for the benefit of the 2[nd] proviso to Section 11(3) of the Act. Further, the revision petitioner has not cared to discharge his burden that he is solely depending upon the income that derives from the business carried on in the petition schedule shop room for his livelihood and that no other suitable buildings are available in the locality. 10. According to the tenant, the Rent Control Appellate Authority has not considered the evidence in its correct perspective and dismissed the appeal by confronting with the order of the rent control court. We are of the view that the tenant is not able to substantiate the case of the landlord that he has _bona fide_ intention to start a super market. The landlord has succeeded in establishing his requirement for starting a super market in the petition schedule building. 11. On an analysis of the arguments at the **RCRev.No. 284 of 2014** 10 bar and in the facts and circumstances of the case, we find that there is no ground to interfere with the order of the court below and it is only to be dismissed. The revision is hence dismissed. 12. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given six months' time to vacate the petition schedule building, on the following conditions: _(1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today._ _(2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as_ **RCRev.No. 284 of 2014** 11 _the case may be, and shall continue to pay the rent without default._ _(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order._ Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM