A.V. Basheer Ahamed v. Thoppilakath Pathummabi

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 RCRev..No. 84 of 2010(C) ----------------------------RCA.76/2008 of ADDL. DISTRICT COURT-II (II ADDL. RENT CONTROL APPELLATE AUTHORITY), KOZHIKODE RCP.55/2007 of ADDL.M.C.,KOZHIKODE-I .................... ## REVISION PETITIONER/APPELLANT/RESPONDENT A.V.BASHEER AHAMMED, AGED 42 YEARS, S/O.MUHAMMED KOYA, EASTERN TRADING COMPANY, MERCHANTS AND COMMISSION AGENTS, BIG BAZAR, NAGARAM AMSOM, DESOM, KOZHIKODE-1, RESIDING AT FATHIMA MANZIL, VENGERI AMSOM DESOM, KOZHIKODE. BY ADV. SRI.R.SUDHISH ## RESPONDENT(S): RESPONDENT/PETITIONER THOPPILAKATH PATHUMMABI, AGED 60 YEARS, D/O.MAMU KOYA, THOPPILAKATH, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18/03/2010, THE COURT ON THE SAME DAY PASSED THE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.84 of 2010 -----------------------------------------------Dated this the 18[th] day of March, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ In this revision filed under section 20, the tenant challenges the order of eviction passed by the Rent Control Court and the Appellate Authority on the grounds of bona fide need for own occupation (under section 11(3)) and subletting (under section 11(4)(i). The parties will be referred to as the landlady and the tenant. 2. The case of the landlady was that the building is bona fide needed for occupation of her husband, a retired Union Bank employee for conducting business in cereals and hill produce. -2- R. C. R. No.84 of 2010 The bona fides of the need was disputed and it was contended that the tenant is entitled to the protection of first proviso as well as the second proviso to sub section 3 of section 11. The allegation of the landlady in the context of ground under section 11(4)(i) was that the tenant has let out a portion of the premises to one Kissan Enterprises who are now using that portion as their godown for storing rice, wheet and pulses. The defence of the tenant was that there is no sublease and that the entire petition schedule building is continued to be possessed by the tenant himself. 3. An Advocate Commissioner was appointed by the court for conducting a local inspection. The Commissioner reported that at the time of his -3- R. C. R. No.84 of 2010 visit, he found considerable quantities of wheat, rice and pulses being brought to and taken out of the godown by three workers who told him that they are the workers of Kissan Enterprises. At trial by the Rent Control Court, the evidence consisted of the oral evidence of PW1, the landlady's husband and that of PW2, the Advocate Commissioner apart from Exts.A1 to A4 document on the side of the landlady. On the side of the tenant, the tenant's oral evidence was given as RW1 and Exts.B1 to B4. The report and sketch submitted by the Commissioner were marked as Exts.C1 and C2. 4. The Rent Control Court on evaluating the evidence came to the conclusion that the need was bona fide. It was also concluded that the -4- R. C. R. No.84 of 2010 tenant was unsuccessful in proving that he is entitled to protection of 2[nd] proviso to sub section 3 of section 11. As regards contention based on the first proviso to sub section 3 of section 11, it was found that the tenant had not produced any evidence which will show that the landlady was in vacant possession of any building. Accordingly, the order of eviction was passed under sub section 3 of section 11. 5. Coming to the ground of subletting, it was found that the oral evidence adduced by the Commissioner as PW2 was genuine. It was noticed that the tenant had not made any endeavour to examine anybody connected with Kissan Enterprises. It was also noticed that the tenant does not have a case that he was dealing with -5- R. C. R. No.84 of 2010 rice, wheat and pulses. Thus, relying mainly on the Commissioner's report, it was held that possession of a portion of the premises was transferred to Kissan Enterprises and accordingly, order of eviction was passed under section 11(4) (i). 6. Appeal was preferred to learned Rent Control Appellate Authority. The Appellate Authority reappraised the evidence and concurred with all the conclusions of the Rent Control Court and accordingly, confirmed the order of eviction passed by the Rent Control Court. 7. In this revision filed under section 20, various grounds have been raised assailing the judgment of the Appellate Authority. On considering the revision for admission, this Court -6- R. C. R. No.84 of 2010 ordered notice on admission by special messenger and pursuant to that notice Sri.K.M.Firoz entered appearance on behalf of the respondent. 8. We have heard submissions of Sri.Sudhish, the learned counsel for the petitioner and those of Sri.K.M.Firoz. Sri.Sudhish submitted that PW1, the landlady's husband is 73 years old who retired from the service of Union Bank of India some sixteen years prior to the institution of the RCP. The projected need of him commencing new business in the petition schedule building was not at all a natural or bona fide one. Mr.Sudhish also submitted that the applicability of the first proviso to sub section 3 of section 11 has not been properly considered by the authorities below. He pointed out that two clinching documents were -7- R. C. R. No.84 of 2010 produced by the revision petitioner before the Rent Control Appellate Authority. These documents will show that the landlady was having vacant possession of at least two buildings. No special reasons have been shown by the landlady either in pleadings or in evidence which will justify ordering eviction of the petition schedule building despite the landlady having possession of those two rooms. The order of eviction passed under section 11 (3), therefore, warrants interference. Mr.Sudhish would assail the order of eviction passed on the ground of subletting also. According to him, the only evidence to support the finding of subletting is the ex parte report submitted by the Commissioner. According to the learned counsel in order that eviction ground under section 11(4)(i) -8- R. C. R. No.84 of 2010 is made out, it is necessary that there is transfer of exclusive possession of the building in favour of the alleged sub tenant. The alleged sub tenant is not made a party even. There is collusion between the alleged sub tenant and the landlady. When there is collusion, it is necessary that the alleged sub tenant is also made a party to the proceedings initiated. 9. All the submissions of Mr.Sudhish were resisted by Sri.K.M.Firoz. He reminded us of the contours of this Court's jurisdiction under section 20. According to him, within the contours of that jurisdiction, there is absolutely no warrant for interference. 10. We have considered the rival submissions very anxiously. Under the statutory scheme the -9- R. C. R. No.84 of 2010 Rent Control Appellate Authority is the final court on facts. This Court is not normally expected to interfere with the findings of fact entered by the Appellate Authority especially when such findings are entered on the basis of evidence. The two fact finding authorities appreciated the evidence and came to the conclusion that the need was bona fide. It is true that the husband of the landlady at the time of filing of the RCP was past seventy. But then, this is not a case where for ten years after his retirement he idled in his house and filed the RCP with the sole objective of ejecting a recalcitrant tenant. It is in evidence that the husband of the landlady after his retirement did business for four or five years. The evidence of the husband of the landlady that he is healthy and -10- R. C. R. No.84 of 2010 does not want to idle without doing anything inspired the Rent Control Court and the Appellate Authority. We do not find anything unreasonable or un-natural in the landlady's husband thinking in terms of doing business again in a building belonging to his wife. As rightly noticed by the Rent Control Court notwithstanding the contentions of the tenant that the landlady was having vacant possession of her other buildings belonging to her, no evidence was adduced to prove the same before the Rent Control Court. It is before the Appellate Authority that certified copies of property tax assessment registers relating to two rooms allegedly belonging to the landlady were produced. The Appellate Authority did not rely on those documents for the reason -11- R. C. R. No.84 of 2010 that it is not clear whether these rooms are vacant and also for the reason that the period of time to which these two documents relate is also not clear. 11. We have gone through these documents. These documents are certified copies of the assessment registers pertaining to two rooms. The exact period is not mentioned. But the period of these documents is mentioned as 2007-2008. We are informed that the RCP is filed as early as in April, 2007. If that be so, it may be possible to hold that these two documents relate to the period of commencement of the Rent Control Petition. The Appellate Authority is right in observing that it is not very clear from these documents that these rooms are remaining -12- R. C. R. No.84 of 2010 vacant. But, we will give the benefit of doubt to the tenant and assume that these two rooms are remaining vacant. But, it is crystal clear from the documents themselves that the landlady is having is only 1/8[th] fractional interest over these two rooms. She is only a co-owner along with seven others in both these rooms. That being the position, the judgment of this Court in Asher v. Hassankutty Hajee (2004(2) KLT 446) will squarely apply. Since the landlady is not the absolute owner in absolute and exclusive possession of the rooms, these rooms cannot be reckoned with for the purpose of the first proviso to sub section 3 of section 11. 12. We are not at all impressed by the argument of the learned counsel for the revision -13- R. C. R. No.84 of 2010 petitioner that the circumstance that the sub tenant is not arrayed as a party in the Rent Control Petition will prima facie show that the allegation of sub letting is without basis. Section 21 of Act 2 of 1965 provides that any order to be passed on the tenant will be binding on the sub tenant, whether the sub tenant is a party to the proceedings or not. In fact, there is no obligation on the part of the landlady to array the sub tenant also as a party. Non-impleadment of the sub tenant will vitiate the proceedings only when it is seen that there was fraud or collusion. The argument of the learned counsel for the revision petitioner that there is collusion between the landlady and the alleged sub tenant is too feeble to receive acceptance at our hands. According to -14- R. C. R. No.84 of 2010 us, if there was collusion, the landlady could have arrayed the alleged sub tenant/Kissan Enterprises who are actually named in the RCP and made them take a passive stand. There are specific allegations in the RCP that a portion of the petition schedule godown is sublet to Kissan Enterprises for the purpose of storing their merchandice-rice, wheat and pulses. The Commissioner reported that he saw two workers named by him bringing the above articles to the godown and taking stocks of the above items out of the godown. According to the Commissioner, he was informed by those workers that they are workers of Kissan Enterprises. The Commissioner gave very convincing evidence as PW2 in terms of his Commission Report. His evidence in chief was -15- R. C. R. No.84 of 2010 not shaken in cross examination. Significantly, the tenant did not feel like examining either of the two employees mentioned by the Commissioner or anybody connected with Kissan Enterprises, the alleged sub lessee for substantiating his defence. We do not find any infirmity with the order of eviction passed under section 11 (4)(i) also. 13. The result is that the RCR fails and will stand dismissed. However, considering the fervent request of the learned counsel for the revision petitioner, we are inclined to grant time till 31/03/11 to the revision petitioner for surrendering the premises subject to the following conditions:- 1) The revision petitioner shall file an affidavit within three weeks from today -16- R. C. R. No.84 of 2010 undertaking to give peaceful surrender of the building to the respondent on or before 31/03/11. It will be undertaken through the same affidavit that the entire arrears of rent due in respect of the building will be discharged within thirty days from today and that occupational charges at the rate of Rs.1,000/- per mensem will be paid hereafter till 31/03/11 as and when the same falls due. 14. We make it clear that if the affidavit is not filed on time, the petitioner will not be entitled for the benefit of time granted as above. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-