Ashraf v. Shamnas; Ashraf v. Shefinas (RCRev Nos. 333/2018 & 337/2018, High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** ## **RCRev..No.333 OF 2018** **AGAINST THE ORDER/JUDGMENT IN RCA 2/2018 DATED 10-07-2018 OF RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM AGAINST THE ORDER IN OP 13/2012 DATED 23-11-2017 OF RENT CONTROL COURT,ATTINGAL** ## **REVISION PETITIONER/APPELLANT/COUNTER PETITIONER:** **ASHRAF AGED 46 YEARS S/O.ALIYARUKUNJU, PROPRIETOR, AVANI COLLECTIONS, GRAMOM ROAD, ATTINGAL, THIRUVANANTHAPURAM, 695101** **BY ADV. SRI.G.S.REGHUNATH RESPONDENT/PETITIONER/RESPONDENT:** ## **SHAMNAS** **D/O.ABDUL SALAM, SALAM NIVAS, PALAMKONAM, KEEZHATTINAL DESOM, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM, 695101** **R1 BY ADV. SRI.P.B.KRISHNAN R1 BY ADV. SRI.P.M.NEELAKANDAN R1 BY ADV. SRI.P.B.SUBRAMANYAN R1 BY ADV. SRI.SABU GEORGE R1 BY ADV. SMT.B.ANUSREE R1 BY ADV. SRI.MANU VYASAN PETER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 1.10.2019, ALONG WITH RCRev.337/2018, THE COURT ON 16.10.2019 PASSED THE FOLLOWING:** R.C.Rev.Nos.333 & 337/2018 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** ## **RCRev..No.337 OF 2018** **AGAINST THE ORDER/JUDGMENT IN RCA 3/2018 OF RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM** **AGAINST THE ORDER IN OP(RC) 12/2012 OF RENT CONTROL COURT,ATTINGAL** ## **REVISION PETITIONER/RESPONDENT/COUNTER PETITIONER:** **ASHRAF** **AGED 47 YEARS S/O ALIYARUKUNJU, PROPRIETOR, AVANI COLLECTIONS, GRAMOM ROAD, ATTINGAL, THIRUVANANTHAPURAM -695101** **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENT/APPELLANT/PETITIONER:** **SHEFINAS D/O ABDUL SALAM, SALAM NIVAS, PALAMKONAM, KEEZHATTINAL DESOM, KEEZHATTINGAL , VILLAGE, THIRUVANANTHAPURAM 695101** **R1 BY ADV. P.B.KRISHNAN(CAVEATOR) R1 BY ADV. SRI.P.M.NEELAKANDAN** **R1 BY ADV. SRI.P.B.SUBRAMANYAN R1 BY ADV. SRI.SABU GEORGE R1 BY ADV. SMT.B.ANUSREE R1 BY ADV. SRI.MANU VYASAN PETER THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 1.10.2019, ALONG WITH RCRev..333/2018, THE COURT ON 16.10.2019 PASSED THE FOLLOWING:** R.C.Rev.Nos.333 & 337/2018 -:3:- ## **O R D E R** ## **Dated this the 16[th] day of October 2019** ## _**Shaffique, J.**_ These two revisions arise from a common judgment in RCA Nos.2/2018 and 3/2018 which arise from OP(RC) Nos.13 and 12/2012 of the Rent Control Court, Attingal. 2. This is the second round of litigation with reference to the subject matter in issue. The petition-schedule buildings form part of a three storied commercial building under the name M.H.Building. OP (RC)No.12/2012 concerns shop room bearing No.AMC II/248 in the ground floor of the said building and OP (RC) No. 13/12 concerns shop having room Nos.AMC II/249 having two rooms, AMC II/250 in the ground floor and two rooms bearing No.AMC II/252 in the first floor. The Rent Control Petitions were filed alleging _bonafide_ need. The building owners are sisters and the requirement is for a business purpose of the petitioner in R.C.Rev.Nos.333 & 337/2018 -:4:- OP(RC) No.13/2012. It is alleged that the petitioner in OP (RC) No.13/2012 Smt.Shamnas has three children and the income derived by her husband, who is now managing the business of his father, is not sufficient enough to meet the expenses required for the family. Therefore, she had decided to start a business in furniture and home furnishing materials. She also requires the room of her sister Shefina's tenanted room as well, which is on the ground floor of the building, for her own purpose. Shefina therefore filed OP(RC) No. 12/2012, to evict the tenant, alleging that her sister is dependent on her for the shop room for conducting the business of furniture and home furnishings. The tenant denied the allegation. According to the tenant, the whole idea of the landladies is to evict them from the shop rooms and there is no _bonafide_ need as alleged. 3. The Rent Control Petitions were jointly tried. PW1 and PW2 were examined on the side of the petitioners and they relied upon Exts.A1 to A24. The common tenant was examined as DW1. By a common order dated 8/1/2016, the Rent Control Court allowed the petitions. The tenants preferred RCA Nos.9/2016 and R.C.Rev.Nos.333 & 337/2018 -:5:- 10/2016 and the Appellate Court set aside the order passed by the Rent Control Court which came to be challenged before this Court by filing RCR Nos.171/2017 and 195/2017. This Court by judgment dated 9/8/2017 remitted the matter back to the Rent Controller for fresh consideration. It was _inter alia_ observed that it would appear that the tenants were having ten rooms in the upstair portion either at the time or subsequent to the filing of the petition. Since the tenants were having altogether 10 rooms in the first floor which was not disclosed, the element of _bonafides_ on the part of the petitioner should be brought out, especially when the requirement is for a larger extent of the area. This Court therefore directed that the first limb of S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 requires to be considered and therefore while setting aside the common judgment of the appellate authority and the Rent Controller, the matter was remitted back to the Rent Control Court for fresh disposal in accordance with law. 4. After remand, the Rent Control Court allowed OP(RC) No.13/2012 and dismissed OP(RC) No.12/2012. The Rent R.C.Rev.Nos.333 & 337/2018 -:6:- Controller found that the petitioner in OP(RC) No.13/12 bonafide requires the building for her own occupation for conducting a business. But in so far as OP (RC) No.12/12 is concerned, the requirement is not for a dependent and therefore, the said petition was dismissed. As far as the first proviso to S.11(3) of the Act is concerned, it was held that the rooms which are vacant cannot be utilized for the business of the petitioners and it was held that there was no embargo to the petitioners to start business in the light of the first proviso to S.11(3). As far as second proviso is concerned, it was observed that the respondent had not made any attempt to prove that he is depending solely on the income derived from the business conducted in the petition-schedule shop room and that apart, DW1 has admitted during cross-examination that there are vacant rooms in the Municipal Complex. Since both the limbs of the second proviso were not proved, it was held that the tenant was not entitled to the benefit of second proviso. The tenant as well as the landladies preferred appeal. The tenant's appeal was RCA No.2/18 against order in OP(RC) No. 13/2012 and the landlady in OP(RC) R.C.Rev.Nos.333 & 337/2018 -:7:- No. 12/2012 filed RCA No.3/2018. The appellate authority found that in so far as the building belongs to sisters who are members of the family, the appellant in RCA No.3/18 Smt.Shefinas is dependent upon her sister Shamnas for the petition-schedule room in OP (RC) No.12/2012 and therefore she is a dependent and a member of the family and therefore, she is entitled to claim the building belonging to her sister for her bonafide occupation. It was also found that the need projected by land owners for conducting a business in furniture and home furnishing materials is genuine and accordingly, the bonafide need is found in favour of the landladies. The lower appellate Court also concurred with the view expressed by the Rent Controller with reference to the findings regarding the first and second proviso to S.11(3). 5. Learned counsel for the revision petitioner Sri.G.S.Raghunath attacked the judgment of the lower appellate authority on all counts. We heard the learned senior counsel Sri. S.V. Balakrishna Iyer appearing on behalf of the respondents, who supported the judgment of the lower Appellate Authority. 6. As far as the requirement of the landladies are R.C.Rev.Nos.333 & 337/2018 -:8:- concerned, the need projected in both the petitions is that the Smt.Shamnas, one of the sisters, who is the petitioner in OP (RC) No.13/2012 intended to start a business in the petition-schedule shop rooms. The business is to deal in furniture and home furnishing materials. In view of the concurrent finding of the Court below that the need of Smt.Shamnas was bonafide and genuine, we do not think that we will be justified in interfering with the concurrent finding of fact. The only question is whether the lower appellate Court was justified in allowing OP (RC) No. 12/2012 on the ground that sister is a dependent and whether her requirement can be treated as a bonafide need of the landlord. The lower appellate Court observed that though the word “family” has not been defined, it placed reliance upon the judgments in _**Anthony Kochuvariathu v. Chakkalinga Nadar**_ (1971 KLT 119), _**Muhammed and Others v. Sinnamalu Amma**_ (1977 KLT 795), _**Krishnan Thampi v. Sankardas**_ (2002 (1) KLT 930), _**Mathew v. Aruna**_ (2014 (1) KLT 876), a Full Bench judgment in _**Raghavan v. Kelappan**_ (2006 (1) KLT 1) and _**Kunhanantha Marar v. Abdul Varis**_ (2018 (1) KLT 111) in order R.C.Rev.Nos.333 & 337/2018 -:9:- to observe that the member of the family dependent on him/her within the meaning of S.11(3) shall include sister also. We do not think that in so far as the word 'family' is not defined under the Act, in the light of the judgments relied upon by the lower Appellate Authority, it is rather clear that the word “member” of the family dependent on him has to be given a wide interpretation and viewed in that angle, a sibling though married and given away forms part of the family and, if she, for the purpose of starting a business, depends on her sister for a building, definitely her need also can be projected by the landlady. In the case on hand, Shamnas has already two rooms in the ground floor and the adjacent room in the ground floor belongs to her sister Shefinas which is in the occupation of the tenant and all the shop rooms in the ground floor are required for the business activity. As far as the two rooms in the first floor are concerned, its utility is for storage of materials. Therefore, we have no hesitation to confirm the view expressed by the lower appellate authority with reference to the bonafide need of the landlady in question and that their need is genuine. R.C.Rev.Nos.333 & 337/2018 -:10:- 7. One contention that had been specifically raised for challenging the judgment is regarding the maintainability of the petition. It is argued that the landlady Shefinas, had filed an earlier petition as RCP No.1/2010 which was withdrawn, after taking evidence. He placed reliance on the judgment of the Apex Court in _**Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Others**_ (AIR 1987 SC 88) and _**Upadhyay & Co. v. State of U.P. and Others**_ [(1999) 1 SCC 81]. In _**Sarguja Transport Service**_ (supra), this Court held that a petition under Art.226 cannot be filed in respect of the same cause of action if the earlier petition was withdrawn without permission to institute a fresh petition and it is held that the rule of public policy as contained in O.23 Rule 1 of C.P.C. applies to such case. In _**Upadhyay & Co.**_ (supra) also, the Apex Court held that if special leave petition is filed against an order of the High Court which was later withdrawn without obtaining leave of court, a fresh SLP filed against the same impugned order is not maintainable and the principle of public policy of prohibition of a fresh suit contained in Order 23 Rule 1(4) of C.P.C. applies to SLPs R.C.Rev.Nos.333 & 337/2018 -:11:- also as it is a matter of public policy. 8. But as far as Rent Control Petitions are concerned, the issue has been squarely covered by a Division Bench judgment of this Court in _**Vasu v. Varghese**_ (2007 (4) KLT 1013), wherein it was held at paragraph 10 as under:- “ _10. While interpreting the provisions of S.15, a Division Bench of this Court in Govindan v. Subaida Beevi (1997 (1) KLT 910), held that the section refers to only issues finally decided or purports to have been finally decided in a former proceeding under the Act. It was held that going by the wording of S.15, applications filed under various sub-sections of S.11 of the Act are directed to be summarily rejected only if substantially same issues arising for consideration in such applications are shown to have been either decided expressly or purported to have been decided already in a proceeding under the Act. Thus, the import is on a final decision on the issues, and not a summary rejection on technical grounds. In the light of the above dictum also, the contention raised by the petitioner that the second application is barred by the principles of S.15, is not correct. In the earlier petition for eviction, there was no final decision on the issues arising between the parties. In the light of the argument raised, that there is a purported final decision as far as the former proceeding is concerned, the question has to be examined further, The meaning of the word 'purport' in Chambers 20th Century Dictionary, is given as follows:_ R.C.Rev.Nos.333 & 337/2018 ## -:12:- _“n. meaning conveyed; substance, gist, tenor; outward appearance, guise, as conveying an impression (Spens.): purpose (rare).- v.t. Purport' (also pur') to give out as its meaning; to convey to the mind; to seem, claim, profess (to mean, be, etc.):to purpose (rare). - adv. Purportedly.purportless.”_ _The meaning of the word 'purport' in The American Heritage Dictionary of the English Language, is given as follows:_ _“1. To contain the claim or profession (to be or do something), 2. Rare. To have or give the appearance, often falsey, of being, professing, or intending - See synonyms at mean.-n (purport - port) The apparent meaning or purpose; import; significance. See Synonyms at meaning.”_ _It indicates that the decision should convey a meaning, substance, gist, etc. When it is thus construed, the meaning of the term “purports to have been finally decided” indicates that the decision in a former proceeding should reflect a final decision on the issues raised and not a dismissal on technical grounds like “not pressed”, etc., As the word 'purports' also indicates a proper decision as having been arrived at by the court, the contention that it would take dismissals like the one in question, cannot be accepted. S.15 clearly bars reopening of decisions which have become final and if a petition is dismissed as not pressed, it cannot be taken that there was a final decision on the issues arising in the matter, as the court had no occasion to go into the contentions of the parties and render a decision on such_ ## R.C.Rev.Nos.333 & 337/2018 -:13:- _issues”._ 9. That apart, the Apex Court in _**N.R. Narayan Swamy v. B.Francis Jagan**_ [2001 (5) Supreme 594] while considering the maintainability of a second application of eviction on the ground of bonafide need under the Karnataka Rent Control Act held that O.23 Rule 1(4) will have no application in a proceeding initiated for recovering the suit premises on the ground of bonafide requirement which is a recurring cause. That was a case in which the earlier petition was dismissed as not pressed and when a second petition was filed, contention regarding maintainability was raised and it is in the light of the said factual background that it was held so. Therefore, the revision petitioner cannot challenge the maintainability of the Rent Control Petitions invoking O.23 Rule (1)(4) of C.P.C. 10. Now coming to the argument on the first proviso to S.11(3), learned counsel for the revision petitioner places reliance upon the evidence and contends that admittedly there are 10 rooms on the first floor of the building which are not occupied and when such rooms are available, the authorities below were not justified in arriving at a conclusion that the claim of the landladies ## R.C.Rev.Nos.333 & 337/2018 -:14:- is not hit by first proviso to S.11(3) of the Act. In fact, in RCR No.171/2017 by which the matter was remitted back to the trial Court, this Court observed that the initial burden lies on the landlord to rule out the possibility of the first limb of S.11(3) of the Act. In fact, the earlier judgments on the point viz., _**Vayalilakath Abdul Nazar v. Paruthuthodi Mammad Koya**_ (2011 (2) KLT 914) and _**Chakko P. Mathew v. Kuttappan**_ (2002 KHC 583) are sufficient enough to conclude the fact that the burden to prove the first proviso is on the tenant. Once it is established by the tenant that there are other suitable buildings in the possession of the landlord for the need projected, the burden shifts to the landlord to prove special reasons. In this case, after remand, PW1 was recalled and examined on 1/11/2017. In the evidence, it has come out that M.H. Building contains several rooms and it has three floors. PW1 has deposed that all the rooms on the upper floors are small rooms having attached bath rooms. Those are given for lodging purpose and those are not suitable for conducting business proposed by Shamnas. The Advocate Commissioner has been examined as R.C.Rev.Nos.333 & 337/2018 -:15:- PW3. He has also given evidence stating that the rooms presently in occupation of the landladies were not suitable for conducting the proposed business. The average length of the room is below 10 feet and all rooms except one are having attached bathrooms. The appellate authority had also verified the plan which was produced as Ext.A31. When it is rather clear that the other rooms in possession of the landladies are in the first floor and those are used for lodging purposes, it is rather clear that those rooms cannot be utilized for the purpose of the proposed business. That apart the tenant did not have a case that those rooms could be utilised for the proposed business activity. Even the tenant is using two shop rooms on the first floor for storage purposes. Therefore, we have no hesitation to hold that the claim of the landladies is not hit by first proviso to S.11 (3) of the Act. Both the fact finding courts have concurred with the said view and it is not possible for us to take an altogether different approach. 11. As far as the protection under second proviso to S.11(3) is concerned, both the authorities have held that the tenant could not prove the availability of buildings. PW1 has in R.C.Rev.Nos.333 & 337/2018 -:16:- her evidence stated that there are vacant rooms in the Municipal Complex and Market Complex. According to the tenant, though he admits that such rooms were available in the Municipal Complex, he stated that those were too small and therefore he did not participate in the auction. He also stated that he had not made much enquiry regarding availability of other buildings in the locality. That apart, no materials had been produced to prove that the tenant was depending on the income derived from the business for his livelihood. In the light of the aforesaid facts, we are of the view that there is no merit in the contentions urged in the Rent Control Revisions and they are only to be dismissed. Rent Control Revisions are therefore dismissed. **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** ## **T.V.ANILKUMAR** Rp True Copy **JUDGE** PS to Judge