A.M. Haneefa and Haneefa & Co. v. P.M. Mohammed Basheer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 14TH DAY OF JANUARY 2013/24TH POUSHA 1934** **RCRev..No. 58 of 2012 (E)** **------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA.7/2007 DATED 07-09-2011. AGAINST THE ORDER/JUDGMENT IN RCP.23/2005 DATED 01-02-2007.** ## **REVISION PETITIONER(S)/RESPONDENTS/RESPONDENT:** **----------------------------------------------------------------------------------** **1. A.M.HANEEFA, S/O. AHAMED KUNJU,HANEEFA &,CO.,TOBACCO MERCHANT, QMC 2149/XVII,MAIN ROAD,KOLLAM-691 001.** **2. HANEEFA & CO,** **TOBACCO MERCHANT,QMC 2149/XVII,MAIN ROAD, KOLLAM-691 001.** **BY ADVS.SRI.LEO GEORGE SRI.P.B.SURESH KUMAR (SR.)** ## **RESPONDENT(S)/APPELLANT/PETITIONER:** **--------------------------------------------------------------** **P.M.MOHAMMED BASHEER, S/O.HAMEED RAWTHER,BUSINESS, RESIDING AT PUNNAYYATHU KIZHAKKATHIL, VALATHUNGAL P.O.,ERAVIPURAM,KOLLAM.** ## **R1 BY ADVS. SRI.RAJAVIJAYARAGHAVAN CAVEATOR** **SRI.V.V.RAJA SRI.M.T.SURESHKUMAR SRI.R.D.SHENOY (SR.)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **LSN** ## K.M.JOSEPH & C.K.ABDUL REHIM,JJ. ------------------------------RCR.NO. 58 of 2012 --------------------------------Dated this the 14th day of January, 2013 ## JUDGMENT ## Joseph,J. Petitioners are tenants. The Rent Control Court was approached by the respondent landlord. The rent control court rejected the eviction petition under sections 11(3),11(4)(i) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act. The appellate authority however reversed the finding of the Rent Control Court under section 11(3) and 11(4)(iii) while it upheld the finding of the Rent Control Court under Section 11(4) (i). Aggrieved by the order of the appellate authority tenants are before us. 2. We heard senior counsel for the petitioners and the learned counsel for the respondent. As far as the reversal of the finding under section 11(3) is concerned learned counsel for the petitioners would submit before us as follows: RCR.58 /2012 2 3. He would submit that the case of the landlord was that he wants to set up a business in PVC pipe in the petition schedule building having an area of approximately 1.5 Ares. He pointed out pleadings before us to the effect that the landlord requires petition schedule building for setting up an office and showroom in the very same building. He would point out that admittedly the landlord is having the same business in his residential premises which is situated about 5 km away from the petition schedule premises. In his proof affidavit he has stated that he wants to shift the entire business to the petition schedule building. In cross examination he has deposed on the same lines. He therefore posed the question as to how the appellate authority found the landlords claim bonafide. That is to say how the business which is being continued in the residential premises could be shifted to the petition schedule building which is situated in 1 ½ Ares of land, he submits. 4. Next as far as the finding of the appellate authority under section 11(4)(iii) is concerned he would submit that the burden is on the landlord to establish the ingredients of section RCR.58 /2012 3 11(4)(iii) mainly that the tenant has acquired possession of a building sufficient for the purpose of carrying on business of the tenant. In this regard he submitted that the pleading is general and bald and does not give any indication regarding particulars as to the possession of building the petitioners have acquired. He then points out that when the landlord was cross examined and asked a specific question as to whether the landlord is prepared to take out a commission to prove that the petitioners have acquired building as claimed by the landlord, the landlord answered in the affirmative. But however this assurance given in the evidence is not followed up by the landlord. In other words the landlord did not prove the primary fact required under section 11(4)(iii) that the tenant has acquired possession of building suitable for their business. He would point out that the appellate authority has acted illegally in placing reliance on Ext.A6. He would submit that when the landlord was examined he was specifically asked as to the basis on which he deposed that the tenant has acquired possession of any building. He would point out that the landlord in his deposition stated that he RCR.58 /2012 4 has personal knowledge of the same and he gained knowledge of the possession being obtained on the basis of the query with the Municipality. Ext.A6 is no doubt issued by the Municipality. He would point out that in the evidence given by the tenant the tenant has specifically admitted that he and his family members have godown. It is followed by further testimony to the effect that the godown have already been let out from the year 1980 onwards. He would therefore submit that there is no basis at all for the appellate authority to over turn of the finding given by the Rent Control Court and seek our interference in revision. Learned senior counsel for the petitioners relied on a decision in **Ganpat Ram Sharma vs. Gayatri Devi (1987(3) SCC 576)** for the proposition that it is incumbent on the part of the landlord to establish that the tenant has acquired building suitable for the purpose of business. Learned senior counsel would submit that the landlord purchased the petition schedule building in the year 1993. The landlord acquired the property in the name of his wife in the year 1997. In the year 1998 the respondent landlord issued a notice to the tenant seeking eviction on the ground that RCR.58 /2012 5 he intends to start business in textile partly in the petition schedule building and also taking the building standing in the name of the wife which property lies adjacent to the petition schedule building. Though such notice was sent, it was not followed by filing of any petition on the basis of such notice. The present petition was filed in the year 2005. 5. Per contra learned counsel for the landlord submitted that since the tenant has not vacated the petition schedule building the landlord has started business of PVC pipe in his residential premises about 5 km away from the petition schedule building. It is further contended that his wife's property was sold in connection with the marriage of his daughter. As far as the contention of the petitioners that there are discrepancies in the pleading and the evidence in regard to the ground under section 11(3) is concerned, he would submit that there is no material on record to establish that the business being carried out in the residential premises cannot be shifted to the petition schedule building. There is no clinching evidence to establish the exact area or space that is taken up in the building situated RCR.58 /2012 6 in the residential area or plinth area of the said building so that it can be said that the case of starting business in PVC pipe in the petition schedule building is only a ruse . It is submitted that the respondent landlord will carry on the business in the petition schedule building. 6. As far as ground under section 11(4) (iii) is concerned it is submitted that Ext.A6 is a clinching evidence. Ext.A6 would show that the petitioners had go-down in their possession. In such circumstances the burden was on the tenant to show either that the godown is not his possession or that it is not suitable the petitioners to start business. 7. Admittedly the landlord had started business in PVC pipe. The business is located in the residential compound admeasuring about one Acre. It is also found that there are 3 buildings in the residential compound. It is the case of the landlord that he requires the petition schedule building for the purpose of starting office and show room for doing business in PVC pipe. The location in an urban area compared with the rural area is in fact noted by the appellant authority. Apparently RCR.58 /2012 7 it tends to promote better marketing and sales. It is true that when the landlord was examined, his evidence was that he was to shift the entire business from the building located in the residential area. He did not deviate such stand in cross examination also. In this regard we are inclined to not overlook the contention of the learned counsel for the respondent that evidence is lacking in regard to the exact quantum of materials which are stocked in the building in the residential area and whether the materials which are stocked in the residential premises could not be shifted to the petition schedule building. In fact we note that though the petitioner sought for commission application, this fact was not ascertained. Therefore sitting in revision it cannot be open to us to find that the case of the landlord as projected by him in his evidence cannot be accomplished. If that be so, we are constrained to reject the same. 8. The next question to be considered is whether the fact that the wife of the respondent acquired property in the adjacent area and that was not put to use and further what is the effect of RCR.58 /2012 8 the sale of the said building. Here we cannot again overlook the contention of the landlord that the business of the landlord in PVC pipe was being conducted in the residential area. There was an understanding that the tenant would vacate so that the landlord would start business in textile also using the petition schedule building and the building of the wife of the landlord. Therefore the mere fact that the property in the possession of the wife was not used for the purpose which was projected bonafide need cannot be treated as having fatal consequences. The landlord is a person who had retired from abroad and there is no challenge to his capacity to conduct business. In the circumstance we are not inclined to interfere with the finding under section 11(3). 9. As far as section 11(4) (iii) is concerned, we notice that the appellate authority has overturned the Rent Control Court based on Ext.A6. Ext.A6 is an assessment register of godown apparently belonging to the petitioners/tenants. The case of the petitioners is that it related to 1995-98 . At the time when the entries were made in Ext.A6 apparently the premises were lying RCR.58 /2012 9 vacant. Nobody contemplated that there will be proceedings for eviction of the petitioners. The present petition is filed in 2005. In this regard it is true that the landlord did not file any application for appointment of a commission to ascertain whether there is building in the possession of the petitioners. The petitioners have given evidence to the effect that the petitioners and their family members have possession of godown. The specific case set up is that those godowns have been let out from 1980 onwards. If that be so, the petitioners could have proved that the said building has been let out subsequently at least prior to 1998 when first notice was issued demanding eviction. They could have produced evidence in the form of subsequent assessments relating to same building or they could have taken out a commission. We would think that in the facts and circumstances of this case the petitioners could have certainly proved that the facts as stated in Ext.A6 is incorrect. He has done neither. The resultant position is the appellate authority has chosen to rely on Ext.P6 ignoring the statement in the deposition that the entire building have been out RCR.58 /2012 10 out. It is in this context we must note that the case of the petitioners is that godown is let out in the year 1980. He does not have a case that buildings were let out after 1999. Therefore the finding by the appellate authority cannot be characterised as one which warrants interference under section 20 of the Act. Therefore we are inclined to affirm the finding of the appellate authority. 10. Learned senior counsel for the petitioners submitted that the petitioners may be given time to vacate the premises. Accordingly while we affirm the findings of the appellate authority and dismiss the revision petition we grant 8 months time from today to vacate and grant peaceful possession of the building to the landlord. This is subject to their executing an undertaking in writing before the Rent Control Court within a period of three weeks in the form of an affidavit by the 1[st] petitioner on his behalf and on behalf of the 2[nd] petitioner also that they will surrender vacant and peaceful possession to the respondent-landlord on or before 14.9.2013 and that they will continue to pay the agreed rent as and when it falls due and also RCR.58 /2012 11 that they will not transfer possession of the petition schedule premises to anybodyelse. K.M.JOSEPH, JUDGE C.K.ABDUL REHIM, JUDGE pmn/ RCR.58 /2012 12