Arakkal Parakkat Mohammed v. Muhammed Sadique and Abdul Salam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940** **RCRev..No. 40 of 2019** **AGAINST THE JUDGMENT IN RCA 8/2015 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT-I), THALASSERY** **AGAINST THE ORDER IN RCP 86/2013 of MUNSIF COURT, KUTHUPARAMBA** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **ARAKKAL PARAKKAT MOHAMMED AGED 70 YEARS S/O. P.K.MOIDU, TELLICHERRY HARDWARE,K.V.BUILDING, THALASSERY ROAD, MATTANNUR, KANNUR DISTRICT** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI** ## **RESPONDENTS/APPELLANTS/PETITIONERS:** **1 MUHAMMED SADIQUE AGED 47 YEARS S/O. KHADER HAJI, BUSINESS, SAFIYA MANZIL, URUVACHAL, MATTANNUR,KANNUR-670 702** **2 ABDUL SALAM AGED 41 YEARS S/O. KHADER HAJI, BUSINESS, SAFIYA MANZIL, URUVACHAL, MATTANNUR,KANNUR-670 702** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Rcr40/2019 2 ## **JUDGMENT** **K.Harilal, J.** **1. The revision petitioner is the tenant against whom an order of eviction has been passed in appeal under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act), reversing the findings of the Rent Control Court, dismissing the rent control petition. (The parties are referred to as in the rent control petition.)** **2. The petitioners, who are the co-owners of the petition schedule shop room, filed RCP No.86/2013 before the Rent Control Court, Kuthuparamba, seeking an order of eviction under section 11(3)(b) of the Act. According to them, the rent is in arrears from** Rcr40/2019 3 **December, 2011 and they** _**bona fide**_ **need the petition schedule building for starting a crockery business. According to them, they** **have no suitable buildings of their own to start the proposed business.** **3. The respondent resisted the claim for eviction contending that the need is not** _**bona fide**_ **and it is a ruse for eviction only, as the petitioners are having several other suitable buildings for conducting the business. They are also having several other sources of income. They would get a monthly income of Rs.1,00,000/- from rent alone. According to the respondent, the rent control petition was filed to evict him from the petition schedule shop room and to lease out the building for higher rent. According to him, he is entitled to get** Rcr40/2019 4 **protection under the 2[nd] proviso to section 11(3) of the Act also.** **4. On the aforesaid rival pleadings, both parties adduced evidence and after** **considering the evidence on record, the Rent Control Court dismissed the rent control** **petition, on a finding that the need projected is not a** _**bona fide**_ **one, as the** **petitioners have several other sources of income for their livelihood and there is no need to start a crockery shop for their livelihood. So also it was found that they have other buildings of their own in their possession to start the proposed crockery shop and the respondent is entitled to get protection under the 2[nd] proviso to section 11(3) of the Act and dismissed the rent** **control petition.** Rcr40/2019 5 **5. In the appeal preferred by the petitioners, the Appellate Authority reversed all the aforesaid findings, except the findings under the 1[st] limb of the 2[nd] proviso and granted an order of eviction under section 11(3) of the Act, on a finding** **that the need projected in the petition is** _**bona fide,**_ **the claim for eviction under section 11(3) of the Act is not barred by the 1[st] proviso and the respondent is not entitled to get protection under the 2[nd] proviso to section 11(3) of the Act. Thus, the divergent findings, whereby the Rent Control Court dismissed the rent control petition and the Appellate Authority allowed the rent control petition and granted an order of eviction under section 11(3) of the Act are challenged in this revision.** Rcr40/2019 6 **6. Heard the learned counsel for the revision petitioner/tenant.** |**7.**<br>**The learned counsel for the revision**| |---| |**petitioner/respondent mainly contended that**| |**the Appellate Authority went wrong by**| |**reversing the findings of the Rent Control**| |**Court without re-appreciating the evidence**| |**on record on the ****_bona fides _of the need**| |**projected in the petition in its correct**| |**perspective. Hence, the findings of the**| |**Appellate Authority on**<br> **_bona fide_**<br> **need**| |**projected in the petition are perverse,**| |**warranting interference of this court in**| |**exercise**<br>**of**<br>**revisional**<br>**jurisdiction.**| |**Secondly, it is contended that the Appellate**| |**Authority went wrong in finding that the**| |**claim for eviction is not barred by the 1st**| |**proviso to section 11(3) of the Act.**| Rcr40/2019 7 **According to the learned counsel for the respondent, it has come out in evidence that the petitioners have vacant possession of two rooms referred to in Exts.P7 and P8 certificates issued by the Muncipality. But the Appellate Authority discarded the same and erroneously found that the respondent has not discharged the burden of proof under the 1[st] proviso to section 11(3) of the Act.** **8. In view of the arguments at the bar, the first point to be considered is, whether the finding of the Appellate Authority, that the need projected is** _**bona fide,**_ **is perverse or not. Going by the order passed by the Rent Control Court and the judgment passed by the Appellate Authority, we find that the respondent contended that the petitioners are landlords having 31 shop rooms in their** Rcr40/2019 8 **joint possession and they are getting Rs.1,00,000/- per month as rent from those buildings. Therefore, there is no need to start a new business of crockery. The petitioners also admitted that they are in joint possession of several other shop rooms, though those shop rooms are let out to different tenants and no other vacant and suitable buildings are available in their possession.** **9. In order to prove the** _**bona fides**_ **of the need, the first petitioner was examined as PW1 and in his oral evidence also he has admitted the ownership and possession of several other buildings also. On the basis of the aforesaid admission of the 1[st] petitioner himself that they are in joint possession and ownership of several other** Rcr40/2019 9 **shop rooms, the Rent Control Court found that the need is not** _**bona fide**_ **as they have other sources of income to eke out their livelihood. The Appellate Authority in the appeal reversed the aforesaid finding on a reasoning that merely on the reason that the 1[st] petitioner is a rich man having other sources of income and he may be the landlord of several other buildings and properties, those factors, by themselves, would not negate the** _**bona fide**_ **need to start a new business.** **10. We find that the aforesaid findings of the Appellate Authority is justified by the decision of this Court in** _**P.I.Abdul Rub v. Joby Tharian**_ **[2003 (2) KLJ 1035] and** _**Kurian v. Sunny John**_ **[2016 (2) KLT SN 124], wherein this court held that law does not insist** Rcr40/2019 10 **that a landlord having other sources of income shall not carry out another income earning activity or venture to start a new business. However, the aforesaid proposition is seen reiterated in** _**Shamsudheen v. Balan Nair**_ **[2014 (2) KLT 978]. In this decision also it was held that even if the landlord is a man of wealth and assets, his claim for eviction, on the ground of** _**bona fides**_ **of the need, cannot be rejected, if he is desirous of starting another business. In the light of the aforesaid decision, we hold that there is no illegality or perversity in the findings, whereby the Appellate Authority reversed the findings of the Rent Control Court and arrived at a finding that the need projected is** _**bona fide.**_ **11. The next question is, whether there is** Rcr40/2019 11 **any illegality or impropriety in the findings that the respondent has not discharged the burden of proof under the 1[st] proviso to section 11(3) of the Act. It is the case of the respondent that the petitioners have three shop rooms bearing No.VII/753, VII/745 and VII/748 in their possession and those shop rooms are vacant and suitable for starting the proposed business. The first petitioner, while he was examined as PW1, emphatically denied the vacant possession of the aforesaid rooms and contended that those shop rooms are let out to different tenants and they are in occupation of those shop rooms.** **12. In order to substantiate the contention that Room No.VII/745 is vacant, the respondent has produced Ext.B7 certificate** Rcr40/2019 12 **issued by Mattannur Muncipality stating that no licence was issued for conducting any business in shop room No.VII/745. The Rent Control Court in view of Ext.B7 arrived at a finding that since no licence has been issued for conducting any business in Room No.VII/745, that shop room shall be deemed to be remained vacant. In view of the above finding, it is to be borne in mind that the specific case of the first petitioner is that while he was examined in evidence as PW1, Room No.VII/745 was let out to Alfa Jewellery and the said room is being used as office of the Alfa Jewellery. In view of the** **aforesaid contention, the Appellate Authority found that merely on the reason that no licence was issued for conducting business in the petition schedule shop room,** Rcr40/2019 13 **it cannot be held that, that shop room is remaining vacant, particularly when that shop room is being used as the office of a jewellery. As rightly held by the Appellate Authority, if that room is being used as the office, there is no occasion or need to obtain a licence with respect to that shop room.** **13. On the above premise, it is significant to note that no commission was taken out to ascertain the alleged assertion that Room No.VII/753 was remaining vacant. As rightly observed by the Appellate Authority, the respondent could have applied for issuance of a commission to inspect the said room to report as to whether the room is vacant. No steps was taken by the respondent in this regard. So, as rightly observed by the** Rcr40/2019 14 **Appellate Authority, without satisfactory evidence in this regard, the Rent Controller concluded that the landlords are having possession of Room No.VII/753.** **14. We are of the view that the Appellate Authority is justified in reversing the aforesaid finding, in the absence of any kind of evidence to prove that Room No.VII/753 was remaining vacant at the time of filing of the rent control petition. We do not find any kind of illegality or impropriety in the findings, whereby the Appellate Authority arrived at a finding that the claim for eviction is not barred by the 1[st] proviso to section 11(3) of the Act. In the above analysis, the rent control revision fails and it is dismissed.** **15. Having regard to the nature of business,** Rcr40/2019 15 **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 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**_ Rcr40/2019 16 _**time granted to vacate the premises will stand automatically vacated and the respondents/landlord will be at liberty to proceed with the execution of the eviction order.**_ _**Sd/- K.Harilal, Judge**_ _**Sd/-**_ _**Annie John, Judge**_ _**sl.**_