Ayoob v. Davoodul Hakeem and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944** **RCREV. NO. 211 OF 2022** **[AGAINST THE ORDER IN RCP 5/2017 OF PRINCIPAL MUNSIFF, KASARAGOD** **& JUDGMENT IN RCA 1/2019 OF RENT CONTROL APPELLATE AUTHORITY-III, KASARAGOD)** ## **REVISION PETITIONER/1ST APPELLANT/1ST RESPONDENT:** AYOOB AGED 41 YEARS S/O. ANDU MOHAMMED, NOORANI MANZIL, AILLA MAIDAN, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD – 671 322. BY ADVS. KRISHNADAS P. NAIR K.L.SREEKALA HARIDAS P.NAIR M.A.VINOD BIJU VISWANATH SHINTO THOMAS(K/305-A/2020) ANU PRABHAKAR ## **RESPONDENTS/RESPONDENTS & APPELLANTS 2 TO 6/PETITIONERS &** ## **SUPPLEMENTAL RESPONDENTS 3 TO 7:** 1 DAVOODUL HAKEEM AGED 28 YEARS S/O. LATE MOIDEENKUNHI, MAILTHOTTY HOUSE, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD - 671322. 2 MUHAMMED ASIF, AGED 27 YEARS, S/O.LATE MOIDEENKUNHI, MAILTHOTTY HOUSE, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, R.C.R.No.211 of 2022 :-2-: KASARAGOD - 671322. 3 MUHAMMED MUSTAFA, AGED 20 YEARS, S/O LATE MOIDEENKUNHI, MAILTHOTTY HOUSE, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD - 671322 ## SUPPLEMENTAL RESPONDENTS/APPELLANTS/RESPONDENTS 3 TO 7 4 JAMEELA, AGED 52 YEARS, W/O.LATE MOIDEEN KUNHI, NOORANI MANZIL, AILLA MAIDAN, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD- 671322. 5 NASIR, AGED 33 YEARS, S/O.LATE MOIDEEN KUNHI, NAUSHAD MANZIL, PARAKATTA, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD- 671322. 6 NOUSHAD, AGED 32 YEARS, NAUSHAD MANZIL, PARAKATTA, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD- 671322. 7 NOUFEEDA, AGED 29 YEARS, D/O.LATE MOIDEEN KUNHI, NAUSHAD MANZIL, PARAKATTA, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD- 671322. 8 NOORIN, AGED 24 YEARS, S/O.LATE MOIDEEN KUNHI, NAUSHAD MANZIL, PARAKATTA, UPPALA VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD- 671322. BY ADV PRAVEEN K. JOY(K/2625/1999) (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.No.211 of 2022 :-3-: ## **O R D E R** ## **Shoba Annamma Eapen. J** This Rent Control Revision is filed by the revision petitioner-tenant (first respondent in RCP) challenging the concurrent finding of order of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short, “the Act”), on the _bona fide_ need of the landlords. 2. The respondents 1 to 3- the landlords are the owners of two storeyed building having five rooms by name Aysha Building at Main Junction at Uppala. The petition schedule rooms are two rooms, one on the ground floor and other on the first floor bearing door Nos.MGP.IV/790 and IV/801. The revision petitioner/tenant occupies the said rooms and is conducting hotel business. The respondents 1 to 3 herein/the landlords are brothers and they are conducting business of light and sound in one room bearing No.MGP.IV/789. The first respondent/landlord is married, the second respondent/landlord is in the lookout of his life partner. For their peaceful and secured life, they mutually R.C.R.No.211 of 2022 :-4-: agreed and wished to start business of their own. The first respondent decided to start hotel business in the petition schedule rooms. The second respondent decided to continue the present business of light and sound in Door.No.MGP IV/789. The third respondent decided to start an internet cafe in another room on the upstair bearing Door No.MGP IV/799. The Rent Control Court found that the need projected by the landlords is _bona fide._ The tenant engaged in the hotel business, failed to prove that there are no other buildings available in the locality to conduct his business and that the income derived from the business conducted in the tenanted premises is his main source of income. Accordingly, it was found that the tenant was not entitled to protection as envisaged under the first and second provisos to Section 11 (3) of the Act. The order of eviction of the Rent Control Court has also been affirmed by the Rent Control Appellate Authority. Challenging this, the tenant has come up before this Court in revision under Section 20 of the Act. 3. We have heard the learned counsel appearing for R.C.R.No.211 of 2022 :-5-: the revision petitioner/tenant and the learned counsel for the respondents 1 to 3/landlords. 4. The learned counsel for the revision petitioner would submit that the respondents 1 to 3/landlords have other shop rooms and they are conducting their own business in the adjacent shop room to the petition schedule rooms. Further, they are running a light and sound business and they do not intend to start a new business and there is no _bona fide_ need for the landlords. During the pendency of the petition, the second tenant died and his legal heirs were impleaded as additional respondents 3 to 7 in the Rent Control Petition. 5. PW1 was examined and Exts.A1 to A7 and C1 were received in evidence before the Rent Control Court. The revision petitioner/tenant did not adduce any evidence. 6. In the revision petition filed by the tenant, not much contentions were raised regarding the _bona fide_ need put forth by the landlords. Moreover, during cross examination of PW1, nothing was brought out so as to disbelieve the case of R.C.R.No.211 of 2022 :-6-: the landlord that he _bona fide_ intends to start a hotel business in the petition schedule rooms. The landlords, being brothers, wish to start independent business for the welfare of their family. Not even a suggestion was made to PW1 that the _bona fide_ need set up by the landlords is not genuine. Hence, there is no reason to doubt the need put forth by the landlords and we do not find any reason to interfere with the finding of the courts below on the requirement of _bona fide_ need. 7. But it was contended that the revision petitioner/tenant as well as his employees are mainly depending on their livelihood from the business conducted in the petition schedule rooms and that the landlords have other rooms for starting their business. **I** t is further argued that there was no other vacant buildings in the locality for the tenant to conduct the business and therefore, the revision petitioner-tenant is entitled to protection under first and second proviso to Section 11(3) of the Act. 8. The revision petitioner/tenant contended that the landlords are in possession of vacant rooms bearing door R.C.R.No.211 of 2022 :-7-: Nos.IV/1596, III/616, IV/270, IV/271 and IV/272. On the other hand, the Rent Control Court found that the burden is on the tenant to prove the 1st proviso, then only the landlords are bound to prove special reasons for non-occupation of the said rooms. Relying on the evidence of PW1 and the report of the Commissioner, the Rent Control Court found that there are no vacant rooms for the landlords to start hotel business and further found that the rooms, which are in the possession of the 1st respondent/landlord, are old tiled rooms, which are 3kms. away from Uppala town and PW1 has stated special reasons and convinced the court for not occupying those rooms. 9. The tenant further failed to prove that the income derived from the business carried out in the tenanted premises is his main source of income. The tenant did not adduce any evidence nor mounted the box to prove his case. The tenant failed to prove that there was no other building or shop rooms available in the locality for him to carry on his business. In the absence of any material before the R.C.R.No.211 of 2022 :-8-: authorities below to prove that the income derived from the tenanted premises is the main source of income, the tenant is not entitled for any protection under second proviso to Section 11(3) of the Act. In the decision of this Court in **Shahul Hameed.A.** v. **P.E.Abdu Razak** (2016 (5)KHC 820), it was held that the burden to prove both the ingredients of the second proviso to S.11(3) of the Act is on the tenant. The tenant failed to adduce evidence and to prove that he is mainly depending for his livelihood on the income derived from the business carried on in the petition schedule shop rooms and failed to prove that no other building or shop room is available in the locality for him to carry on the business. 10. Thus the revision petitioner-tenant has failed to establish that the need of the landlords is not _bona fide_ and failed to prove first and second provisos to Section 11(3). Therefore, we hold that the findings rendered by the Rent Control Court and the Rent Control Appellate Authority ordering eviction under Section 11(3) of the Act are sustainable in law and we do not find any reason to interfere R.C.R.No.211 of 2022 :-9-: with that finding. Further, we hold that the need put forth by the landlord is genuine, real and honest. It is out of an honest and genuine desire, the landlords have approached the court below with a prayer for eviction and that cannot be interfered with by this Court in exercise of its revisional jurisdiction under Section 20 of the Act. 11. In the said circumstances, the findings of the courts below cannot be found fault with. We do not find any reason to interfere with that finding. 12. Having considered the entire matter in detail, we hold that this revision fails and hence, we dismiss it. 13. Taking note of the request made by the learned counsel for the revision petitioner-tenant to grant sufficient time for vacating the premises, we grant time up to 30.06.2023 to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The first respondent-tenant in the Rent Control Petition (revision petitioner herein) shall file an undertaking before the Rent Control Court or the Execution Court, as the case may be, within three weeks from today, that he R.C.R.No.211 of 2022 :-10-: will vacate the shop rooms, on or before 30.06.2023. - (ii) The first respondent-tenant in the Rent Control Petition shall continue to pay the rent till 30.06.2023, without any default. - (iii) Needless to say, in the event of the first respondenttenant in the Rent Control Petition (the revision petitioner herein) failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop rooms will stand cancelled automatically and the respondents 1 to 3 herein will be at liberty to proceed with the execution of the order of eviction. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** sd/- **SHOBA ANNAMMA EAPEN,** **JUDGE** MBS/