Basheer v Abdul Nazar and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 29TH APRIL 2011 / 9TH VAISAKHA 1933 RCRev..No. 184 of 2011() -----------------------RCA.20/2010 of ADDL.DISTRICT COURT (ADHOC)-II, MANJERI RCP.4/2009 of RENT CONTROL COURT, MANJERI .................... REVISION PETITIONER (S): APPELLANT/RESPONDENT -------------------------------------------------------------------------- BASHEER, S/O. PUZHAKKAL KUNHIMOHAMMAD, VALLUVANANGAD.P.O, VETTIKKIRI AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENT(S): RESPONDENTS/PETITIONERS ------------------------------------------------------- 1. ABDUL NAZAR, S/O. KUTEERI MOHAMMED @ NANI MASTER, POOKKUTH DESOM, P.O. POOLAMANNA, PANDIKKAD AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT - 676 121. 2. ABDUL ANAS, S/O. KUTTEERI HYDRU HAJEE, POOKKUTH DESOM.,P.O, POOLAMANNA, PANDIKKAD AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT - 676 121. 3. ABDUL NAZAR, S/O. ELAMKULAVAN MOIDEEN, POOKKUTH DESOM.,P.O, POOLAMANNA, PANDIKKAD AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT - 676 121. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** -------------------------------------- ## R.C.R.No.184 of 2011 --------------------------------------- Dated this the 29th day of April, 2011 ## **JUDGMENT** ## K.T.Sankaran, J. The respondents filed R.C.P.No.4 of 2009 on the file of the Rent Control Court, Manjeri against the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. 2. The respondents purchased the building from Muhammed Haneefa Haji as per the registered assignment deed of the year 2008. The first respondent was working abroad and he has presently returned to India with the intention of settling in Kerala. Respondents 2 and 3 are relative and friend of the first respondent. The third respondent is conducting textile business under the name and style E.K. Textiles and Readymades in a rented RCR No.184/2011 2 building. The landlord of that building had issued a notice to the third respondent to vacate the premises. It is stated that the third respondent requested for further time to the landlord to vacate the premises on the belief that the respondents would give vacant possession of the petition schedule rooms involved in the present case. Bonafide need alleged is that the respondents herein wanted to run a textile shop on a larger scale investing about ` 1 crore. There are two rooms in occupation of the petitioner. It was stated by the respondents that these two rooms are required for running the business proposed to be commenced by them. According to the respondents, the petitioner/tenant is not depending upon the income derived from the business conducted in the petition schedule rooms for his livelihood. The respondents alleged that the petitioner is running another textile business at Pandikkad and that he is getting very good income from that business. It was alleged by the respondents that there are suitable buildings available in the locality to accommodate the RCR No.184/2011 3 business of the petitioner/ tenant. 3. The petitioner/tenant disputed the bonafide need alleged by the respondents. It was contended that the respondents are very rich persons. The petition schedule rooms are situated in a multistoried building. There are several other rooms in the building which have access and those rooms can be used by the respondents for conducting textile business as stated by them. The petitioner/tenant also alleged that he is depending for his livelihood mainly on the income derived from the business in the petition schedule rooms. He also alleged that there is no suitable accommodation available in the locality. Thus, he claimed the benefit as per the second proviso to Section 11(3) as well. 4. Before the Rent Control Court, the third petitioner (the third respondent herein) was examined as PW1 and the petitioner/ tenant was examined as RW1. Documentary RCR No.184/2011 4 evidence was also produced by either side. The plan of the building was made available before court by the landlords. It was alleged by the respondents/landlords that the only two rooms which have road frontage and direct access from the main road and direct vision from the main road are the petition schedule rooms. The evidence of RW1, the tenant, would also indicate the same as pointed out by the Rent Control Court. It is true that there are other rooms in the main building. But it has come out in evidence that those rooms do not have any direct access to the main road and there is no clear vision from the main road to those rooms. It was held by the Rent Control Court as well as the Appellate Authority that for running textile business for the respondents herein, the most suitable rooms are the petition schedule rooms. It was also held that the other rooms in the main building are not suitable for running the textile business as spoken to by the respondents/ landlords. RCR No.184/2011 5 5. The Rent Control Court as well as the Appellate Authority held that the bonafide need put forward by the respondents herein is genuine. The oral and documentary evidence in the case were taken note of by the authorities below to arrive at a finding that the bonafide need put forward by the landlords is genuine. Interference under Section 20 of the Kerala Buildings (Lease and Rent Control) Act would be possible only if it is shown that the judgment passed by the Appellate Authority suffers from any illegality, irregularity or impropriety. It is not established by the petitioner that the order and judgment passed by the authorities below suffer from any illegality, irregularity or impropriety. 6. As regards the second proviso to Section 11(3) of the Act, the authorities below held that the burden of proof on the tenant was not discharged by him as held in **Kochappan Pillai vs. Chellappan (1976 KLT (1))** which was followed by the Kerala High Court all through out in several other RCR No.184/2011 6 decisions and which was also accepted by the Full Bench in **Francis vs. Sreedevi Varassiar (2003 (2) KLT 230)** . It has come out in evidence that the tenant is running another business in textiles. The tenant has not produced any document to show the income derived from the business conducted in the petition schedule rooms and the income derived from the business conducted in another premises. There was no material before the authorities below to arrive at the conclusion that the main source of income of the petitioner is from the business conducted in the petition schedule rooms. The tenant has also not discharged the burden of proof to show that no other suitable buildings are available in the locality to accommodate the business run by him in the petition schedule rooms. No other material was produced by the tenant to arrive at the conclusion that no other buildings are available in the locality, except the oral evidence of RW1. RCR No.184/2011 7 7. The findings rendered by the authorities below are legal, proper and correct. No interference is called for under Section 20 of the Act. 8. Lastly, the learned counsel for the petitioner submitted that the petitioner has invested huge amounts in the petition schedule rooms to run the textile business and if he is compelled to vacate the premises immediately, he would be put to irreparable injury and great hardship. In the facts and circumstances of the case, we are of the view that the tenant should be given a breathing time to vacate the premises. For granting such time, we do not think it is necessary to issue notice to the respondents/landlords. In the facts and circumstances of the case, six months' time is granted to the petitioner/tenant to vacate the petition schedule buildings subject to the following conditions : (i) The petitioner shall file an unconditional RCR No.184/2011 8 undertaking before the Rent Control Court to vacate the premises on or before the expiry of the period of six months. The undertaking shall be filed on or before 25.5.2011. - (ii) The petitioner/tenant shall deposit the arrears of rent and continue to deposit the rent for the period till he vacates the premises. - (iii) If the petitioner fails to comply with any of the conditions, the order passed by the Rent Control Court shall be executed. ## **K.T.SANKARAN, JUDGE** ## **M.L.JOSEPH FRANCIS, JUDGE** csl