Baburaajan S/o Krishnan v. Marancheri Safiya and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939** **RCRev..No. 285 of 2016 () --------------------------** **AGAINST RCA 30/2013 of RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT & SESSIONS COURT, VATAKARA DATED 30.6.2015** **AGAINST RCP 53/2012 of RENT CONTROLLER/MUNSIFF COURT, VATAKARA DATED 31-01-2013** **REVISION PETITIONERS/APPELLANTS/RESPONDENT: --------------------------------------------** **BABURAJAN, S/O KRISHNAN, AGED 51 YEARS, PRANAVAM HOUSE, NADAKKUTHAZHA AMSOM, PUTHUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** **RESPONDENTS/RESPONDENTS/ PETITIONER: --------------------------------------** **1. MARANCHERI SAFIYA, D/O KUNHAMMED HAJI, AGED 28 YEARS, MARANCHERI HOUSE, MEMUNDA AMSOM DESOM, PO- MEMUNDA, VADAKARA TALUK, KOZHIKODE DISTRICT PIN 673 104.** **2. MARANCHERI RASIYA, D/O KUNHAMMED HAJI, AGED 42 YEARS, MARANCHERI HOUSE, MEMUNDA AMSOM DESOM, P.O MEMUNDA, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN 673 104.** **3. MARANCHERI SHEREEFA, D/O KUNHAMMED HAJI, AGED 38 YEARS, MARANCHERI HOUSE, MEMUNDA AMSOM DESOM, P.O MEMUNDA, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN 673 104.** **4. MARANCHERI SABIRA, D/O KUNHAMMED HAJI, AGED 36 YEARS, MARANCHERI HOUSE, MEMUNDA AMSOM DESOM, P.O MEMUNDA, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN 673 104** ## **5. MARANCHERI SHAHIDA,** - **D/O KUNHAMMED HAJI, AGED 33 YEARS, MARANCHERI HOUSE, MEMUNDA AMSOM DESOM, P.O MEMUNDA, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN 673 104.** ## **6. MARANCHERI HSEENA,** - **D/O KUNHAMMED HAJI, AGED 30 YEARS, MARANCHERI HOUSE, MEMUNDA AMSOM DESOM, P.O MEMUNDA, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN 673 104.** ## **7. MARANCHERI ALEEMA,** - **W/O KUNHAMMED HAJI, AGED 65 YEARS, MARANCHERI HOUSE, MEMUNDA AMSOM DESOM, P.O MEMUNDA, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN 673 104.** **R1-R7 BY ADV. SRI.ZUBAIR PULIKKOOL** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VPS** **K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. ----------------------------------------** ## **R.C.R. No.285 of 2016 ---------------------------------------Dated this the 4[th] day of April, 2017** ## **O R D E R** **--------------** ## _**Raja Vijayaraghavan,J.**_ - 1.This revision petition is filed under section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act'). - 2.The Revision petitioner is the tenant. The petition was filed by the landlords seeking vacant possession of the tenanted premises for commencing a garment business by the 1[st] petitioner in the eviction petition. Being impressed by the evidence let in by one of the co-owners, the Rent Control Court, Vatakara as per order dated 31.1.2013 in R.C.P. No 53 of 2012 allowed the petition and the tenant was ordered to vacate the premises. - 3.The tenant preferred appeal before the Appellate Authority. He also produced materials to impress upon R.C.R. 285/2016 2 the appellate authority that the landlords were in possession of vacant shop rooms. After re-appreciating the evidence, the Appellate Authority concurred with the view of the Rent Control Court that the need projected is bona fide. It was also held that the tenant was not entitled to the protection under the 2[nd] proviso to section 11 (3) of the Act. However, placing reliance on the material produced by the tenant at the appellate stage, it was held that the landlords were in possession of vacant rooms and were not entitled to seek for an order of eviction. The Appellate Authority overturned the finding of the Rent Control Court and the appeal was allowed. - 4.It was then the turn of the landlords to prefer a revision petition before this Court. After evaluating the materials on record, this Court in R.C (Revision) 94 of 2016 held that the Appellate Authority was not justified in unsettling the findings of the Rent Control Court without affording sufficient opportunity to the landlords to furnish special R.C.R. 285/2016 3 reasons under the 1[st] proviso to section 11 (3) of the Act. The matter was remitted back to the appellate authority to consider the limited question as to whether the bar under the 1[st] proviso to section 11 (3) would apply. All other findings were confirmed . - 5.Pursuant to the remand, the Appellate Authority permitted both the parties to let in evidence. The 5[th] petitioner in the Rent Control Petition gave evidence as PW2. Exhibit A4 was marked on their side. RW2 was examined on the side of the tenant . - 6.The Appellate Authority on the basis of the materials concluded that two shop rooms on the upper floor of the building were lying vacant. However, holding that the said shop rooms will not be a suitable alternative to the petition schedule premises which is situated in the ground floor, the appeal was dismissed. - 7.We have heard the learned counsel appearing for the Petitioner as well as the respondents. We have also R.C.R. 285/2016 4 scanned through the impugned orders and also the materials referred to by the respective counsels. - 8.The learned counsel appearing for the tenant would vehemently contended that the tenant had successfully shown that two shop rooms were lying vacant in the upper floor of the said building. According to the learned counsel, the Rent Control Court has no alternative but to reject the petition when it is proved that the landlord has another building of his own in his possession in the same town, city or village, except where the Rent Control Court is satisfied that for special reasons, that it will be just and proper to do so. According to the tenant, the evidence let in by RW2 would show in unmistakable terms that the landlords had secured vacant possession of shop rooms during the pendency of the proceedings and if that be the case, the benefit would accrue to the tenant. - 9.The Counsel appearing for the landlords would counter the submissions and would submit that the premises which R.C.R. 285/2016 5 became vacant was quite unsuitable to the need, to which the premise was intended to be put. According to the landlords, the vacant building should be of such a nature and character that it would meet the requirement of the landlords. - 10.We have considered the submissions. - 11.We find that by Exhibit A4 registered deed, the father of the landlords had leased out two shop rooms situated in the 1[st] floor of the building to Mahesh and Jayachandran for the purpose of conducting tuition classes. The aforesaid Jayachandran gave evidence as RW2. His evidence would reveal that he had vacated the premises on 27.09.2015. The petition was filed in the year 2012 and it is obvious that the premises were vacated during the pendency of the proceedings. RW2 in his evidence had deposed that the access to the shop rooms in the first floor is through a narrow wooden ladder. - 12.Going by the decisions in **Valsan v.Furtal** [2004 (3) KLT R.C.R. 285/2016 6 1046] and **Manu v. Bhanumathy** [2004 (1) KLT 212], there cannot be any doubt that several factors would go into the mind of the landlord and once a choice is made by the landlord to take a particular room or rooms for his own occupation, even if, during the pendency of the eviction petition he comes in possession of another room, that may be immaterial. The landlords are the sole arbiter of their own requirements and the suitability of the building is the prerogative of the landlords. 13.In **S.S.Gupta v. Mahesh C.Gupta** [1999 (6) SCC 222], it was held as follows: “13...................Once the court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord or satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the R.C.R. 285/2016 7 landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.” 14.It was after considering all these relevant aspects that the Appellate Authority, which is the final fact finding authority, has held that the landlords have made out special reasons for not occupying the shop rooms in the first floor. The said finding was arrived at on the basis of a proper and legal appreciation of facts and law. The law does not command the landlord to make his choice at the dictates of the tenant to protect his occupancy. We find no jurisdictional error in the findings of the court below. It cannot be said that the order suffers from any illegality, irregularity or impropriety. 15.We shall remind ourselves that under Section 20 of the R.C.R. 285/2016 8 Act, the consideration or examination of evidence by this Court is confined to find out whether the finding of fact recorded by the authorities below is according to law and does not suffer from any error of law. Only in cases where, the finding of fact arrived at by the authorities below is perverse and/or has been arrived at without consideration of material evidence or such finding is based on a misleading of evidence or is grossly erroneous, will this Court be justified in interfering with the orders to correct the same. After having gone through the materials on record and the orders impugned, we do not find any reason to take a different view. In the result, this revision petition is dismissed. 16.At this stage, the learned counsel for the petitioner submits that the petitioner be given a breathing time to vacate the premise. He prays that he may be permitted to occupy the premise for a period of one year. This R.C.R. 285/2016 9 prayer is seriously opposed by the learned counsel appearing for the landlords and submit that this is the second round of litigation and that the rent control petition was filed as early as in the year 2012. - 17.Having regard to the facts and circumstances, we are of the view that the revision petitioner can be granted time period of eight months to vacate the premises, but on terms: - a) Within two weeks from the date of receipt of a copy of this order, the petitioner/tenant shall remit the entire arrears, if any, as on date and shall also file an affidavit before the executing court unconditionally undertaking to surrender vacant possession of the premises to the respondents/landlords on or before 31.12.2017 - b) The tenant shall pay charges towards use and occupation of the shop room at the current rent rate from today till the vacant possession of the premises is granted to the respondents/landlords. R.C.R. 285/2016 10 - c) Execution proceedings, if any, pending before the executing court shall be kept in abeyance till 31.12.2017, if the aforesaid conditions are satisfied. - d) If there is default in performing any of the conditions imposed in clauses (a) and (b) above, the benefit given to the tenant as per this order will stand recalled and the executing court shall effect delivery forthwith. **Sd/K.HARILAL, JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** vps