Ansari v. Nazimudeen & Hazeena (RCR 336 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939** **RCRev..No. 336 of 2017 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 38/2016 of III ADDL. DISTRICT COURT, TRIVANDRUM DATED 16-08-2017** **AGAINST THE ORDER/JUDGMENT IN RCP 2/2010 of MUNSIFF COURT,VARKALA DATED 29-02-2016** **REVISION PETITIONER(S)/RESPONDENT/COUNTER PETITIONER:** **----------------------------------------------------** **ANSARI,** **AGED 52 YEARS,S/O.MUSTHAFA,SHEKKUDIANVILA VEEDU, MAITHANAM,VARKALA(PO),VARKALA VILLAGE,VARKALA TALUK, THIRUVANANTHAPURAM-695141.** **BY ADVS.SRI.R.ANILKUMAR SRI.G.RADHAKRISHNAN** **RESPONDENT(S)/PETITIONERS:** **--------------------------** ## **1. NAZIMUDEEN,** **AGED 76 YEARS,S/O.ABDUL REHUMAN KUNJU, ANIL BUILDINGS,MAITHANAM,VARKALA(PO),PIN-695141.** **2. HAZEENA, AGED 64 YEAR,S/O.NAZIMUDEEN,RESIDING AT ANIL BUILDINGS, MAITHANAM,VARKALA.PO,PIN:695141.** **R1,2 BY ADV. SRI.B..KRISHNA MANI (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.HARILAL & A.M.BABU, JJ. .......................................... RCR No. 336 of 2017 ........................................... Dated 13[th] December, 2017** ## **ORDER** ## **K.HARILAL, J.** The divergent findings of the courts below under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short) have come up in revision preferred by the tenant. The parties are referred to as in the Rent Control Petition. The petitioners filed the Rent Control Petition under Sec.11 (2) (b) and 11 (3) of the Act. According to them, the first petitioner bona fide needs the petition schedule building to start a petty shop as he has no avocation for livelihood. It is also averred that he has no other buildings of his own in his possession for starting the said business. The respondent resisted the claim for eviction contending that the need projected in the petition is a pretext for eviction only. The first petitioner has other buildings of his own in his possession for starting the said business. He is depending on the income from the business in the tenanted premises and no other alternative vacant 2 RCR No. 336 of 2017 buildings are available in the locality to shift his business from the tenanted premises and thereby he is entitled to get protection under the second proviso to Sec.11 (3) of the Act. 2. On the aforesaid rival pleas, both parties adduced evidence which consists of oral testimony of PW1, PW2 and DW1, the documentary evidence Ext A1 to A13 and B1 to B9. On appreciation of the aforesaid evidence, the courts below found that the need projected in the petition is not a bona fide one and on that finding the Rent Control Court dismissed the Rent Control Petition. In the appeal the appellate authority reversed the findings on bona fide need and found that the need is a bona fide one, the claim under Sec.11 (3) of the Act is not hit by the first proviso to Sec.11 (3) of the Act, the respondent is not entitled to get protection under the second proviso to Sec.11 (3) of the Act and allowed the appeal. Thus, the legality and propriety of the divergent findings under Sec.11 (3) of the Act have come up for our consideration. 3. Heard the learned counsel for the revision 3 RCR No. 336 of 2017 petitioner and the learned counsel for the respondent. 4. The sum and substance of the arguments advanced by the learned counsel for the respondent/tenant is that the courts below have omitted to consider the evidence on record under the first proviso to Sec.11 (3) of the Act. According to the learned counsel, the respondent has produced Ext B6 to B9 to substantiate the contention that the first petitioner has other buildings of his own in his possession. But, neither the Rent Control Court nor the appellate authority has considered the said documents and their evidentiary value. 5. On the other hand, The learned counsel for the first petitioner/landlord submits that none of the said documents have any kind of evidentiary value and the first petitioner has substantiated his case in his evidence that he has no other building of his own in his possession. Therefore, the appellate authority can be justified in finding that the claim under Sec.11 (3) is not hit by the first proviso to Sec.11 (3) of the Act. Further, the learned counsel for the 4 RCR No. 336 of 2017 petitioner submits that the Rent Control Court absolutely went wrong by finding that the petitioner has a monthly income of Rs1,50,000/- per month as rent of his other tenanted premises and in such a situation there is no need to start a new business for his avocation. It is also contended that the Rent Control Court has failed to consider evidence on record under the second proviso to Sec.11 (3) also in its correct perspective. 6. It is a specific case of the first petitioner that he has no job or any avocation for his livelihood and he is in need of the petition schedule building for starting a petty shop for his livelihood. It is contended by the respondent that the said need is a pretext for eviction only. Going by the order passed by the Rent Control Court it is seen that the Rent Control Court has arrived at a finding that the first petitioner is deriving Rs 1,50,000/- per month as rent from various tenants who are occupying shop rooms and flats owned by the petitioners. On an examination of the said finding, as rightly found by the appellate authority, we find 5 RCR No. 336 of 2017 that the said finding is not supported by any material evidence. On the other hand, it is an inference drawn by the Rent Control Court as an admission from the part of the petitioner. We are of the opinion that on a reading of the deposition of the petitioner in his cross-examination, it can never be an implied admission that he is getting Rs 1,50,000/- per month as rent from his tenanted premises. In the said deposition of the petitioner alone the Rent Control Court has erroneously arrived at a finding that the first petitioner was having high income and possessed so many other landed property. We are of the further opinion that even if the first petitioner is getting Rs 1,50,000/- per month by way of rent that alone could not negate his claim for eviction for bona fide need. 7. This Court in **(2016 (2) KLT SN 124 (Kurian vs Sunny John))** held that law does not insist that a landlord having other source of income shall not carry out another income generating activity or venture to start a new business. Similarly, law does not require that an 6 RCR No. 336 of 2017 impecunious landlord alone can think of starting an income earning activity in order that the need set up will pass through the test of bona fides **(2003 (2) KLJ 1035 (P.I Abdul Rub vs. Jobby Tharian)).** In the above view also we find that the appellate authority is justified in reversing the findings on bona fide need held by the Rent Control Court and holding that the need is bona fide. We do not find any reason to interfere with the findings of the appellate authority on bona fide need and the same will stand confirmed. 8. Coming to first proviso, it is the case of the petitioner that he has no other suitable building of his own in his possession for starting the proposed business. On the other hand, the respondent contended that the petitioner has five other vacant rooms in his possession. The said contention is seen vaguely pleaded in the counter statement; but he has given specific evidence in this respect, in the chief examination as RW1. That apart, Ext B6 to B9 were marked from the part of the respondent to 7 RCR No. 336 of 2017 substantiate the said contention. But, as rightly submitted by the learned counsel for the respondent the Rent Control Court has omitted to consider the said evidence under the first proviso to Sec.11 (3) of the Act. But the appellate authority has made an attempt to consider the same in an evasive manner. We are of the opinion that the appellate authority should have meticulously considered the evidence on record both oral and documentary under the first proviso to Sec.11 (3) of the Act, particularly when the Rent Control Court omitted to consider the first proviso to Sec.11 (3) in the impugned order. Therefore, we find that the evidence available on record both oral and documentary under the first proviso to Sec.11 (3) requires fresh consideration, by the Rent Control Court. 9. Coming to second proviso also we find that the Rent Control Court has omitted to consider the second proviso also on a finding that the need projected is not bona fide. But the appellate authority has elaborately considered the evidence on record under the second proviso to Sec.11 8 RCR No. 336 of 2017 (3) of the Act. It is trite law that burden of proof under the second proviso is on the tenant. Though, the respondent has contended that he is depending mainly on the income from the business in the tenanted premises no material evidence has been produced to prove his income from the business in the tenanted premises. This Court in **2016 (5) KHC 820 (Shahul Hameed vs Abdul Rasaq)** held that no tenant can claim protection after hiding his income and evidence must be produced to prove his approximate income from the trade or business and his average living expense to prove the dependency on income from the business in the tenanted premises. As regards the nonavailability of the alternative building in the locality, no evidence has been adduced by the respondent to prove that no other vacant and suitable buildings are available in the locality to shift his business from the tenanted premises. As observed by the appellate authority the respondent could have taken a commission to ascertain the non-availability of the alternative buildings in the locality and he could have 9 RCR No. 336 of 2017 produced documentary evidence such as copy of the registers of the Accommodation Controller or the copy of the building tax assessment register of the local authority to prove the non-availability of the vacant buildings in the locality. In the absence of any evidence in this respect, the appellate authority is justified in finding that the respondent is not entitled to get protection under the second proviso to Sec.11 (3) of the Act. 10. In the above analysis, we confirm the findings of the appellate authority, that the need is bona fide and denying protection under the second proviso to Sec.11 (3) of the Act to the respondent. But we remit the Rent Control Petition back to the Rent Control Court to consider afresh the evidence on record under the first proviso to Sec.11 (3) of the Act. The Rent Control Court shall pass final order either granting order of eviction or rejecting the same under Sec.11 (3) of the Act on the basis of the findings to be arrived at, after fresh consideration of the evidence available on record, under the first proviso to Sec.11 (3) of 10 RCR No. 336 of 2017 the Act and the order shall be passed within a period of three months from the date of receipt of a copy of this order. The parties are allowed to adduce further evidence under the proviso only. The parties shall appear before the Rent Control Court on 11.1.2018. sd/- **K.HARILAL Judge** **sd/A.M.BABU Judge** sks/14.12.2017