Chalupparambath Hashim v. Shakkeela and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938** **RCRev..No. 58 of 2017 (E) -------------------------** **AGAINST THE JUDGMENT IN RCA.170/2014 of ADDL. DISTRICT COURT, VATAKARA DATED 29-09-2016** **AGAINST THE ORDER IN RCP.28/2013 of MUNSIFF COURT, NADAPURAM DATED 30-09-2014** **REVISION PETITIONER/APPELLANT/RESPONDENT:** **-----------------------------------------** **CHALUPARAMBATH HASHIM, S/O.EBRAYI, AGED 57 YEARS, CHALUPARAMBATH HOUSE, VELLIYOD AMSOM, KODIYURA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADV. SRI.U.K.DEVIDAS** **RESPONDENT(S)/RESPONDENTS/PETITIONERS:** **--------------------------------------** **1. SHAKKEELA, W/O.AZEEZ, AGED 43 YEARS ILLATH VANIMEL AMSOM DESOMVATAKARA TALUK KOZHIKODE DISTRICT673 506.** **2. ASEES, S/O.MAYANKUTTY HAJI, AGED 38 YEARS ILLATH HOUSE, VANIMEL AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 506.** **3. JALEEL, AGED 42 YEARS S/O.MAYAM HAJI, AYYATTIL HOUSE VELLIYODE AMSOM, BHOOMIVATHUKKAL DESOM, KODIYURA P.O. KALLACHI (VIA), VATAKARA TALUK KOZHIKODE DISTRICT 673 515.** **4. NAJEEB, AGED 38 YEARS S/O.MAYAM HAJI, AYYATTIL HOUSE VELLIYODE AMSOM, BHOOMIVATHUKKAL DESOM, KODIYURA P.O. KALLACHI (VIA), VATAKARA TALUK KOZHIKODE DISTRICT 673 515.** **....2** **RCRev..No. 58 of 2017 (E) (2)** **5. MUHAMMED, S/O.MAYAM HAJI, 37 YEARS, AYYATTIL HOUSE VELLIYODE AMSOM, BHOOMIVATHUKKAL DESOM, KODIYURA P.O. KALLACHI (VIA), VATAKARA TALUK KOZHIKODE DISTRICT 673 515.** **6. HAZEENA, D/O.MAYIN HAJI, AGED 31 YEARS, NADUVILAKANDIYIL HOUSE MULLAMPATH P.O., THINOOR VIA KOZHIKODE DISTRICT 673 507.** **7. SHAFI, S/O.MAYAM HAJI, AGED 29 YEARS, AYYATTIL HOUSE VELLIYODE AMSOM, BHOOMIVATHUKKAL DESOM, KODIYURA P.O. KALLACHI (VIA), VATAKARA TALUK KOZHIKODE DISTRICT 673 515.** **8. ASIYA, W/O.MAYAM HAJI, AGED 27 YEARS, AYYATTIL HOUSE VELLIYODE AMSOM, BHOOMIVATHUKKAL DESOM, KODIYURA P.O. KALLACHI (VIA), VATAKARA TALUK, KOZHIKODE DISTRICT 673 515.** **R1 BY ADV. SRI.C.VATHSALAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** K.HARILAL & RAJA VIJAYARAGHAVAN.V., JJ. --------------------R.C.R. No.58 of 2017 --------------------Dated this the 6[th] day of March, 2017 ## O R D E R ## Harilal, J. The revision petitioner is the tenant and the respondents are the landlords, who filed Rent Control Petition seeking eviction against the revision petitioner under Section 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, 'the Act'). The parties are referred to as in the original Rent Control Petition. According the 1[st] petitioner, the petition schedule shop room belongs to him and the same was rented out to the respondent and he is conducting a stationery business in the petition schedule shop room and now he is in bona fide need of the petition schedule shop room for starting stationery business for the 2[nd] and 3[rd] petitioners. Further, the respondent has sublet the petition schedule shop room to his brothers Shafi and Aslam and now they are conducting business in the petition schedule shop room. The income derived from the petition schedule RCR.58/17 **:2:** shop room is not the main source of income as the petitioner has job and business abroad. Several other vacant rooms are available in the locality to shift the business of the respondent. Hence the petition was filed under the aforesaid provisions seeking eviction of the respondent from the petition schedule shop room. The respondent denied the bona fide need put forward by the petitioners. According to him, he has not sublet the shop room to his brothers. He is depending on the income derived from the business in the petition schedule shop room. The bona fide need alleged in the petition is a ruse for eviction. The 3[rd] petitioner is running business at Chennai and he is immensely rich and he has got landed properties and buildings of his own and no other shop room is required to shift his business. The respondent prayed for dismissal of the petition. 2. On the aforesaid rival pleadings, both parties adduced evidence consists of the oral testimony of P.W.1 and R.W1, Exts.A1 to A2(b) and B1 to B5 and after considering the evidence on record the trial court allowed RCR.58/17 **:3:** the petition under Section 11(2)(b) and 11(3) of the Act. Aggrieved by the order granting eviction of the respondent, the respondent preferred appeal before the Appellate Authority. After re-appreciating the evidence on record the Appellate Authority confirmed the findings of the Rent Control Court under Section 11(3) of the Act and dismissed the appeal. Thus, the legality and propriety of the concurrent findings whereby the courts below granted eviction under Section 11(3) of the Act have come up for consideration in this Rent Control Revision. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 4. The learned counsel for the respondents advanced arguments focussing the findings on the bona fide need. According to the learned counsel, it has come out in evidence that earlier the 1[st] petitioner has filed another petition with respect to the petition schedule shop room alleging bona fide need of his son and that petition was dismissed. During the pendency of that proceedings the 2[nd] and 3[rd] petitioners, who were working abroad, have RCR.58/17 **:4:** returned and thereafter they wanted to start a new business from 2004 onwards. Had the need projected been a genuine one, certainly the 1[st] petitioner could have sought for eviction of any of the other tenants in his building; but he was lying in wait for more than 9 years awaiting the finality of the earlier petition, which was pending in appeal. He has preferred the present petition as an experimental exercise, after arriving at a finding that the earlier petition will not be allowed. Thus, the present petition is an experimental exercise to succeed the very same attempt which was ended in failure earlier. So also, it is contended that admittedly the petitioners 2 and 3 are financially sound and they have no need to start a new business as they are conducting other businesses also. 5. On the other hand, the learned counsel for the petitioners advanced arguments to justify the concurrent findings of the courts below. According to him, the petitioners have succeeded in proving the bona fides of the need and the respondents have failed to discharge the burden under the proviso to Section 11(3) of the Act. RCR.58/17 **:5:** 6. In view of the rival contentions, the question to be considered is, whether there is any illegality or impropriety in the concurrent findings whereby the courts below granted eviction order under Section 11(3) of the Act. 7. The landlord-tenant relationship is not disputed. It has come out in evidence that the petitioners 2 and 3 have returned from Gulf country as the 3[rd] petitioner, the husband of the 2[nd] respondent, had abandoned his employment abroad. Even though the respondent/tenant has contended that the second and third petitioners are conducting so many other businesses, there is no material evidence to substantiate the said contention. Even if they are conducting other businesses, that would not disarm them to claim eviction under Section 11(3) of the Act, in view of the legal position well settled by the Apex Court as well as this Court. 8. In **Shamsudheen v. Balan Nair [2014 (2) KLT 978]** , this Court held that even if the landlord is a man of wealth and assets, his claim for eviction on the ground of bona fide need cannot be rejected, if he has determined to RCR.58/17 **:6:** start another business. In **Abdul Rub v. Jobby Tharian [2003 (2) KLJ 1035]** , this Court held that law does not require that an impecunious landlord alone can think of starting an income earning activity in order that the need set up will pass through the test of bona fides. 9. In the instant case, the 3[rd] petitioner was examined as P.W.1 and his evidence would go to show that he intends to start a stationery business with his wife, the 2[nd] petitioner, in the petition schedule shop room as they have no other avocation after returning from abroad about nine years back. According to P.W.1, at present, the 2[nd] petitioner and P.W.1 have no job or any other source of income. After considering the oral testimony of P.W.1, the courts below concurrently observed that even though he was subjected to cross examination at length, touching all aspects of bona fide needs, nothing could be brought out in evidence to discredit his version. Thus, the courts below relied on the evidence of P.W.1. 10. This Court is not inclined to take a different view, in view of the limited jurisdiction under Section 20 of the RCR.58/17 **:7:** Act. Therefore, the further point to be considered is, whether the respondent/tenant had succeeded in discharging the burden under the provisos to Section 11(3) of the Act. 11. As regards the first proviso, the respondent/tenant has failed to adduce any kind of evidence to show that the petitioners are in possession of any other vacant rooms. Coming to the first limb of the second proviso, though the respondent has contended that he is depending upon the income derived from the business in the petition schedule shop room, no evidence other than Exts.B1 to B4 has been produced to substantiate the said contention. Exts.B1 to B4 are licence fee receipts and tax receipts. That does not show anything about the quantum of income, which is being derived from the business in the petition schedule shop room. That apart, Exts.B1 to B4 stand in the name of Shafi, who is the brother of the respondent. The courts below are justified in finding that those documents are not sufficient to prove the claim of the respondent that he is depending upon the income derived from the business in RCR.58/17 **:8:** the petition schedule shop room. 12. Coming to the second limb of the second proviso, it could be seen that the respondent himself in cross examination admitted that about more than 100 rooms are available in the locality and some of the buildings are being constructed but he has not enquired whether the rooms are remaining vacant to shift his business. We are of the opinion that the said admission of the respondent itself is more than sufficient to deny the protection under the second limb of the second proviso. 13. The learned counsel contended that if the need was a bonafide one, certainly the 1[st] petitioner would have filed a Rent Control Petition, much earlier, seeking eviction of any of the tenants under him. But the present suit was filed after the earlier suit has attained a finality rejecting the prayer for eviction for the alleged need of his son. It is true that the petitioners 2 and 3 have returned from gulf country in the year 2004 and at that time the earlier Rent Control Petition was pending and the present petition was filed after nine years only. But, from such circumstances RCR.58/17 **:9:** only, we are unable to draw an inference that the institution of the present RCP was delayed to make a second attempt to get the shop rooms evicted for the bonafide need of the petitioners 2 and 3. Merely on the said delay, it cannot be presumed that the institution of the present RCP was postponed for an experimental exercise. 14. It is nothing more than a mere surmise and no inference affecting the bona fides of the present need could be drawn from the evidence. The Rent Control Court is not expected to sit in judgment over the wisdom of the Lord in the matter of fixing the right time to start the business. Several factors including the availability of fund etc. may go through the mind of the Landlord. This view is fortified by the decision of this Court in **Venugopalan Nair P. (Dr.) v Muhamedkunhi and Others** [2010 (1) KLT 971] and **Althaf v. State of Kerala** [2014 (4) KLT SN 23]. The argument advanced by the learned counsel for the respondent is far fetched and stretched and hence the same will stand rejected. In the above analysis, we find that there is no illegality RCR.58/17 **:10:** or impropriety in any of the findings whereby the courts below granted eviction under Section 11(3) of the Act. There is no reason to interfere with the findings of the courts below. Hence, the Rent Control Revision will stand dismissed. K.HARILAL, Judge. RAJA VIJAYARAGHAVAN.V. Judge. okb/ps