C. P. Abdul Rahman v. K. James George, U. S. Santhosh Kumar and Othayoth Kala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 20TH DAY OF JULY 2018 / 29TH ASHADHA, 1940** **RCRev..No. 393 of 2017** **AGAINST THE JUDGMENT DATED 30.06.2017 IN RCA 290/2016 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE** **AGAINST THE ORDER DATED 30.09.2016 IN RCP 124/2014 of THE RENT CONTROL COURT(ADDL.MUNSIFF-I)KOZHIKODE** **REVISION PETITIONER(APPELLANT IN RCA/RESPONDENT (TENANT) IN RCP):-** **------------------------------------------------------------------** **C.P.ABDUL RAHMAN, AGED 57 YEARS, S/O.C.P.ABDULLA MUSALIAR, CHALI PAZHAYANKUNNU HOUSE, VILANGOTTORE P.O., THRIPPANANGOTTOOR VILLAGE, VILANGOTTORE AMSOM DESOM, KANNUR DISTRICT.** **BY ADVS.SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.N.DEEPA** ## **RESPONDENTS[RESPONDENTS IN RCA/PETITIONERS (LANDLORDS) IN RCP]:-** **----------------------------------------------------------------** **1. K.JAMES GEORGE, AGED 79 YEARS, S/O.K.C.GEORGE, KULANGARA HOUSE, NEDUNGOTTOOR AMSOM DESOM, KOZHIKODE TALUK-673010.** **2. U.S.SANTHOSH KUMAR, AGED 49 YEARS, S/O.BHASKARAN, 'ADUKKATH', P.O.KUNNAMANGALAM-673571, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK.** **3. OTHAYOTH KALA, AGED 43 YEARS, W/O.SANTHOSH KUMAR, 'ADUKKATH', P.O.KUNNAMANGALAM-673571, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK. R1-3 BY ADVS. SRI.K.B..SIVARAMAKRISHNAN (CAVEATOR) SRI.S.VINOD BHAT SRI.K.B.SIVARAMAKRISHNAN SRI.LEGITH T.KOTTAKKAL KUM.ANAGHA LAKSHMY RAMAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-07-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DST** ## **K.Harilal & Annie John, JJ.** ==================================== R.C.R.393/2017 ==================================== Dated this the 20[th] day of July, 2018. ## **ORDER** ## **K.Harilal.J.** - 1.The revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently by the courts below under section - 1(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act). The parties are referred to as in the rent control petition. - 2.According to the petitioners, the first petitioner was working as an Assistant Engineer in PWD, he retired from service and he _bona fide_ requires the petition schedule building for setting up an office for engineering consultancy service. He has already started ## R.C.R.393/2017 ## -:2:- taking private contracts for preparation of plans, estimates and consultancy in engineering work etc. Thus, the need for starting an office in the petition schedule building is _bona fide_ . Further, it is averred that he has no other vacant buildings of his own in his possession to start the proposed office. The respondent is not depending upon the income from the business carried on in the tenanted premises and he has so many other vacant buildings of his own. So also several other vacant buildings are available in the locality, to shift the business from the petition schedule building. That apart, he failed to pay any rent from February, 2014. Though the petitioners had issued notice, demanding arrear of rent, the respondent failed to pay ## R.C.R.393/2017 ## -:3:- the arrears, within fifteen days from the date of receipt of notice. On the aforesaid pleadings, the petitioners sought for an order of eviction, under section 11(2)(b) and 11(3) of the Act. 3.The respondent resisted the claim for eviction, under section 11(2)(b) and 11(3). He denied the allegation that the rent was in arrear since the month of February, 2014 at the rate of Rs.21,000/- per month. Further, it is contended that the need projected in the petition is without _bona fides_ and it is a ruse for eviction only. According to the respondent, the petitioners have several other buildings of their own, to set up the proposed office. They have already constructed a multistoried building, wherein suitable rooms are ## R.C.R.393/2017 ## -:4:- available for setting up their office. Similarly, the first petitioner along with other co-owners had already obtained vacant possession of another shop room in the same building in execution of an order of eviction passed in an earlier RCR 58/2007. But, they had already rented out the said shop room to another tenant. With the aforesaid contention, the respondent prayed for dismissal of the rent control petition. - 4.On the aforesaid rival pleadings, both parties adduced evidence, which consists of the oral testimony of PW1 and documentary evidence, Exts. A1 to A14 on the part of the petitioners and the oral testimony of the respondent, as RW1 and Exts.B to B6 were marked on his side. Exts.C1 to C3, the commission reports and the -:5:- ## R.C.R.393/2017 sketch were marked as court exhibits. After appreciating and re-appreciating the aforesaid evidence on record, the courts below concurrently found that the need projected in the petition was _bona fide,_ the rent control petition is not hit by the first proviso to section 11(3) and the respondent is not entitled to get protection, under the second proviso. The legality and propriety of the aforesaid findings are assailed in this revision petition. - 5.Heard the learned counsel for the petitioners and the learned counsel for the respondent. - 6.The learned counsel for the respondent advanced arguments exhaustively assailing the concurrent findings of the courts below, on the ground that the appreciation of evidence of _bona fide_ R.C.R.393/2017 ## -:6:- need and the availability of other buildings under the first proviso are vitiated by perversity. Learned counsel drew our attention to the oral evidence given by the first petitioner as PW1 and the documentary evidence Exts.A3 to A6. According to the learned counsel for the respondent, the first petitioner retired from service in the year 1992 and now he is aged around 79 years. So, he is not expected to start a consultancy service after remaining idle for more than 22 years. Further, it is pointed out that Exts.A3 to A6 are not current documents, which would show the expertise and qualification of the first petitioner, to conduct an engineering consultancy service. As regards the availability of other vacant buildings, the R.C.R.393/2017 ## -:7:- learned counsel for the respondent drew our attention to Exts.C2 and C3 commission reports and submits that the petitioners have another five storied building of their own and several vacant rooms are available in that building for starting their office. So also it is contended that Ext.C2 report would prove that the shop room, which was obtained in an earlier RCP by the 1st petitioner, was available for his occupation. - 7.Per contra, the learned counsel for the petitioners advanced arguments, to justify the concurrent findings of the courts below, that the need projected by the petitioners is _bona fide_ and the respondent is not entitled to get protection, under the second proviso. According to the learned counsel for the R.C.R.393/2017 -:8:- - petitioners, the petitioners have succeeded in proving that the building owned by them is not vacant and suitable for setting up an office of engineering consultancy service. Secondly, it is pointed out that the respondent failed to discharge the burden of proof cast upon him, under the second proviso to section 11(3) and the availability of other vacant building in the locality, is evident from Ext.C2 commission report. Therefore, there is no illegality or perversity, warranting interference of this court in exercise of jurisdiction, under section 20 of the Act, according to the learned counsel for the petitioners. - 8.At the outset, we must remind ourselves that the scope and extent of revisional jurisdiction is confined to the legality, propriety and R.C.R.393/2017 -:9:- regularity of the findings of the courts below. It is needless to say, there is no scope for re-appreciation of the entire evidence on record, unless it is found that the findings of the courts below are vitiated by perversity or non-consideration of the material evidence available on record. In the instant case, the entire argument advanced by the learned counsel for the respondent centers around the perversity in appreciation of evidence on _bona fide_ need and the availability of other vacant buildings in the possession of the petitioners falling under the first proviso to section 11(3). Therefore, we have meticulously examined the evidence available on record, as regards the _bona fides_ of the need and the availability of other buildings in the possession of the ## R.C.R.393/2017 ## -:10:- petitioners, falling under the first proviso to section 11(3). - 9.Going by the impugned judgment passed by the Appellate Authority, we find that the Appellate Authority also meticulously evaluated the oral testimony of PW.1 and other documentary evidence, Exts.A1 to A14, to determine the _bona fides_ of the need and rejected the contentions that the need projected is not _bona fide._ The Appellate Authority has relied upon the oral evidence of the 1[st] petitioner as PW.1, Exts.A3 to A6 and Exts.C2 and C3 commission reports. 10. It is not disputed that the 1[st] petitioner was an Executive Engineer employed in Public Works Department and now he is a pensioner getting pension. He himself admitted that he has landed properties and buildings. It is ## R.C.R.393/2017 ## -:11:- trite law that, even if the landlord is a man of wealth and assets or affluence, his claim for eviction on the ground of _bona fide_ need cannot be rejected, on the ground that he has no need to start another income earning activity. In the instant case, he intends to start office of his consultancy service, to augment his income. 11. In _**Kurian v. Sunny John**_ [2016(2) KLT SN 124], this Court held that law does not think or insist that the landlord having other sources of income shall not carry on other income earning business or activity for venture to start new business. Further, in _**Shamsudheen**_ - _**v. Balan Nair**_ [2014(2) KLT 978] this Court reiterated the above proposition in a way that, even if the landlord is a man of wealth and -:12:- ## R.C.R.393/2017 assets, his claim for eviction on the ground of _bona fide_ need cannot be rejected, if he is determinant for starting another income earning activity. In the instant case, the respondent has no case that the 1[st] petitioner for whose requirement the order of eviction is sought is suffering under any kind of physical disability or illness. So long as he is healthy and daring, his desire to augment income for livelihood cannot be doubled. If that be so, merely on the reason that he has retired from the service in the year 1992 and he remained idle for a long period, it cannot be held that he cannot be desirous of starting an income earning activity, after remaining idle for 22 years. 12. The learned counsel for the petitioners -:13:- ## R.C.R.393/2017 drew our attention to Ext.A6 and submitted that the 1[st] petitioner was not remaining idle after his retirement and he was working as an approved valuer from 2001. We are of the opinion that the desire to earn more income can be accrued in the mind of a person at any time, till his death and there cannot be a bar for the same. The desire for earning income is a state of mind that depends upon the circumstances of each person and the requirement for money. If more money is required to meet the needs, people may venture for augmenting their income by starting new income earning activities, despite their age. Though the 1[st] petitioner is aged 79 years old, so long as he is physically capable to do the proposed engineering consultancy service, it ## R.C.R.393/2017 ## -:14:- cannot be held that his desire is a ruse for eviction. In the above view, we find that the courts below are justified in fining that the need projected by the 1[st] petitioner is _bona fide_ and we do not find any kind of perversity in the appreciation of evidence. 13. Coming to the appreciation of evidence under the 1[st] proviso to Section 11(3) of the Act, it is the case of the respondent that the 1[st] petitioner has other buildings of his own to set up an office for his engineering consultancy Service. Petitioners also admitted the ownership of other buildings. The respondent pointed out a multi-storied building, wherein several buildings are available for setting up the proposed office. According to the petitioners, they have started ## R.C.R.393/2017 ## -:15:- construction of a multi-storied building. But, the construction is yet to be completed and at the time of filing the Rent Control Petition, the construction of the said building was at the structural stage only and the same is evident from Ext.C2 report. In Ext.C2 report, the Advocate Commissioner, who inspected the said multi-storied building, reported that the construction of that building is at the structural stage only. 14. Another point raised by the respondent is that even at the time of structural stage, a board showing "to let" was displayed in the said building. While the 1[st] petitioner was examined as PW.1, he has explained the reason for exhibiting the said board showing that the rooms are available for letting at the initial ## R.C.R.393/2017 ## -:16:- stage of construction itself. According to PW.1, such a board was displayed at the beginning of the construction itself so as to collect money as security deposit, for the construction, from the tenant, who intends to take room on rent. In Ext.C2 report, as rightly found by the Appellate Authority, the explanation given by the 1[st] petitioner appears to be reasonable and believable. In Ext.C2 report, the Commissioner also reported that at the time when he visited the building, the work was not completed and the same is further fortified by the photographs produced by both parties. The photographs of the building would show that the construction of the building is in progress only and not completed. After verifying the photographs, the Appellate ## R.C.R.393/2017 ## -:17:- Authority held that the structure of the building only was completed and many works are remaining to be completed. 15. In the above view, the courts below are justified in finding that the rooms in the aforesaid building, which were being under construction, were not available for occupation of the 1[st] petitioner at the time of filing the Rent Control Petition. 16. Further, the respondent pointed out another room, which was obtained by eviction proceedings in R.C.R. No.58 of 2007. It is not disputed that the said R.C.R. No.58 of 2007 was filed under Section 11(3) of the Act, seeking an order of eviction for the _bona fide_ need of one Manoharan, an earlier co-owner of the building along with the 1[st] petitioner. R.C.R.393/2017 ## -:18:- Admittedly, after getting vacant possession of the said room, the said Manoharan occupied the rooms for sometime and now he is no more. Later, it was leased out to another tenant by name 'Thariq'. Thereafter, he was also evicted from the premises and the same is in occupation of the 2[nd] petitioner. Therefore, it has come out in evidence that at the time of filing the Rent Control Petition, another room, which the respondents have obtained in R.C.R. No.58 of 207 was in occupation of the 2[nd] petitioner in the instant case. Admittedly, the 2[nd] petitioner is also a co-owner of that building. Therefore, it can be held that at the time of filing of the Rent Control Petition, the said room was in occupation of another co-owner. If that be so, the 1[st] petitioner could not have ## R.C.R.393/2017 ## -:19:- occupied the said building for starting the Engineering Consultancy Service at the time, when he filed the Rent Control Petition. 17. In short, it can be safely concluded that at the time of filing the Rent Control Petition, the shop room, which was obtained in the earlier Rent Control Petition was not remaining vacant and the same was occupied by another co-owner of the said shop room. In the above analysis, the courts below are justified in finding that no other building was available in the possession of the petitioners at the time of filing the Rent Control Petition. We do not find any kind of perversity in the appreciation of the evidence available under the 1[st] proviso to Section 11(3) of the Act. 18. In the above analysis, we find that none of R.C.R.393/2017 ## -:20:- the findings, whereby the order of eviction has been granted, under Section 11(3) are vitiated by perversity. Though this revision petition has been filed challenging the findings under Section 11(2)(b) of the Act, those grounds are not pressed at the time of hearing. 19. Having regard to the facts and circumstances of the case, the revision petitioner/tenant is given six months' time to vacate the tenanted premises on the following conditions: _(i) The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within six months from today._ _(ii)The respondent/tenant shall deposit the entire arrear of rent, if any, in the Rent Control Court_ R.C.R.393/2017 ## -:21:- _or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default._ _(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically repealed and the landlords will be at liberty to proceed with the execution of the eviction order._ The rent control petition is dismissed accordingly. All pending Interlocutory Applications will stand closed. Sd/- **K.Harilal, Judge** Sd/- **Annie John, Judge** sl/DST. ## //True copy// P.S. To Judge