Chettayanveettil Mammu v. T.M. Abdul Gafoor and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933 RCR.No. 207 of 2005 ( ) ----------------------RCA.131/2002 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE. RCP.11/2001 OF RENT CONTROL COURT, PAYYOLI REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/RESPONDENT: --------------------------------------------------------------CHETTAYANVEETTIL MAMMU, S/O. MOOSA, AGED 53 YEARS, RESIDING AT MELADI AMSOM KANNAMKULAM DESOM, P.O. MELADI, KOYILANDY TALUK. BY ADVS.SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S)/RESPONDENTS/PETITIONERS AND RESPONDENT 2: ------------------------------------------------------1. T.M. ABDUL GAFOOR, S/O.MOIDEEN HAJI, AGED 33 YEARS, RESIDING AT THEKKEKOROTH MADATHILHOUSE, MELADI AMSOM, DESOM KOYILANDY TALUK. 2. T.M. ABDUL RAHIM, S/O. -DO-., AGED 30 YEARS, RESIDING AT MELADI AMSOM, DESOM KOYILANDY TALUK. 3. T.KUNHAMMAD, S/O. ASSU, AGED 54 YEARS, SUPER CLINICAL LABORATORY, MAIN ROAD MELADI AMSOM, DESOM, P.O. MELADI KOYILANDY TALUKL. THE NAME OF THE THIRD RESPONDENT IS STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 5-11-05 ON IA. 2445/05 R,R1 BY SRI.C.KHALID R,R1 BY SRI.N.GOPINATHA PANICKER R,R1 BY SRI.R.O.MUHAMED SHEMEEM R,R1 BY SRI.T.P.SAJID THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 2501-2012, ALONG WITH RCR. 514/2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** ----------------------------------------------------------------RCR Nos. No. 207 & 514 of 2005 ----------------------------------------------Dated this the 25th day of January, 2012 ## **O R D E R** ## **Pius C.Kuriakose, J.** The landlords as well as the tenants are in revision. R.C.R.No.207/2005 is the revision filed by the tenants and R.C.R.514/2005 is the revision filed by the landlords. The Landlords sought to evict the tenants on the grounds under Section 11(3) (bona fide need for own occupation), under Section 11(4)(i) (sub-letting) and 11(4) (ii) i.e. user of the building in such a manner as to destroy or reduce its value or utility materially and permanently. The tenants resisted the Rent Control petition disputing the existence of all the eviction grounds. As regards the ground under Section 11(3), it was contended that the need projected by the landlord for conducting stationary business was only a ruse for eviction. It was also contended that at any rate the tenant is entitled to the protection of the RCR. 207 & 514 of 2005 -2- second proviso to Sub-Section (3) of Section 11. As regards the ground under Section 11(4)(iii), the allegation of the landlord was that the tenant is in possession of another building and is actually conducting another business in that building. This contention was stoutly denied by the tenant. The Rent Control Court conducted enquiry and on evaluating the evidence adduced by the parties, ordered eviction on all the grounds other than the ground under Section 11(4)(ii). The landlord did not prefer any appeal against the order declining eviction under Section 11(4)(ii). The tenant had preferred an appeal against the order of the Rent Control Court ordering eviction under Section 11(3), 11 (4)(i) and Section 11(4)(iii). The learned Appellate Authority under the judgment which is impugned in these revisions allowed the appeal to a considerable extent and vacated the eviction order which has been passed on the grounds of sub-letting under Section 11(4)(i) and acquisition of other buildings under Section 11(4)(iii). Only the eviction order RCR. 207 & 514 of 2005 -3- passed under Section 11(3) was confirmed. 2. In the revisions filed by the tenants, they assail eviction order passed under Section 11(3), while in the revision filed by the landlord, they assail the judgment of the Appellate Authority vacating the eviction order which had been passed under Section 11(4)(iii). 3. Smt.Prabha R. Menon, learned counsel for the revision petitioner addressed before us inextenso on the basis of the various grounds raised in R.C.R.No.207/2005. According to Smt.Prabha R.Menon, the appreciation of evidence by the Rent Control Court and the Appellate Authority to the extent the same pertains to the eviction ground under Section 11(3) was thoroughly erroneous and this has resulted in serious prejudice to the tenant. The tenant was in possession of another building and was happily doing business in that building till 1989. It was in 1989 that the tenant was inducted into this building by the landlord giving an assurance that the tenant can continue in RCR. 207 & 514 of 2005 -4- possession till such time as he is desirous of. The landlord is a very affluent man and it has come out in evidence that he has several sources of income. The intention behind anybody conducting business can only be to earn income. When a person is having income from other sources, there is no need to conduct business. The Appellate Authority's view is that one can have so many other sources of income, but still the need of that person to conduct business has to be accepted as bona fide one. This is not a proper approach. Smt.Prabha R. Menon would attack the finding of the Appellate Authority against the tenant in the context of the second proviso to sub-section (3) of Section 11. She submitted that the evidence given by the tenant to the effect that the income from the textile business in the petition schedule premises accounts for his main source of income is a very convincing evidence. She submitted that the tenant gave evidence to the effect that the other buildings apparently available in the locality are not RCR. 207 & 514 of 2005 -5- available for the tenant as the owners of those buildings are unwilling to let out those buildings to the tenant. Hence according to the learned counsel, the findings concurrently entered under sub-section (3) of Section 11 should be vacated. 4. Sri.T.P.Sajid, learned counsel for the landlord would oppose all the submissions of Smt. Prabha R. Menon. Apart from that, he would address arguments in support of the grounds raised in RCR No. 514/05. Mr. Sajid argued that the Rent Control Appellate Authority having found that the tenant is in possession of another building and is conducting another business in that building, is not justified in vacating the eviction order which had been passed by the Rent Control Court on the ground under Section 11 (4)(iii). When it is evident that the tenant is in possession of another building, it is the tenant's burden to show that the said building is not reasonably sufficient for the tenant's requirements. The burden of proof regarding Section 11(4) RCR. 207 & 514 of 2005 -6- (iii) has been wrongly cast upon the landlord, so submitted by Mr. Sajid. Mr. Sajid reminded us of the contours of our jurisdiction under Section 20 and submitted that there is absolutely no warrant for interfering with the findings concurrently entered in favour of the landlord in the context of the ground under Section 11(3). 5. We have given our anxious consideration to the submission of Smt. Prabha R. Menon and Sri. T.P. Sajid. We have gone through the order of the Rent Control Court and we have scanned the judgment of the Appellate Authority. The first question which arises for decision is whether there is any illegality, irregularity or impropriety about the findings entered concurrently by the Rent Control Court and the Appellate Authority that the need is bona fide and that the tenant is not entitled for the protection of the second proviso to subsection(30 of Section 11. On going through the order of the Rent Control Court and the judgment of the Appellate Authority we find that the oral evidence given by RCR. 207 & 514 of 2005 -7- PW-1 the landlord was found inspiring by both those fact finding authorities. It is practically conceded that PW-1 did not have any other business. Though it came on record that PW-1 was possessed of immovable properties generating some income there was no evidence to hold that PW-1 was having any steady source of income. According to us, there is no infirmity, illegality or impropriety about the findings by the two authorities entered on the basis of inspiring evidence adduced by PW-1 that the need projected is bona fide one. Same is the position regarding the finding entered concurrently against the tenant in the context of the second proviso to sub-section (3) of Section 11. It is well known that the two limbs of the second proviso are conjunctive. We find that the landlord produced certified extracts of several vacant buildings in the locality issued by the local authority. These certified extracts were documents as contemplated under Section 26 of Act 2 of 1965. When such documents enjoying presumptions as to the correctness of RCR. 207 & 514 of 2005 -8- what is recorded therein are produced it was the obligation of the tenant to have cited the owners of those buildings so that it can be proved that those buildings will not be let out to the tenant. The tenant did not make any endeavour to examine owners of those buildings. Having regard to the principles laid down by Full Bench of this Court in Francis v. Sreedevi Varassier, 2003(2) KLT 230 approved by the Supreme Court in Kunhamma v. Akkali Purushothaman, 2007(3) KLT 99 (SC) we are of the view that there is no illegality, irregularity or impropriety about the concurrent findings entered in favour of the landlord regarding the second proviso to Section 11(3). This means that the eviction order concurrently passed under Section 11(3) will stand confirmed. 6. Sri. T.P.Sajid's submissions on the basis of the ground under Section 11(4)(iii) were attractive to a certain extent. But here again we should remind ourselves the attenuated nature of our present jurisdiction. We find that RCR. 207 & 514 of 2005 -9- the finding by the Rent Control Appellate Authority which under the statutory scheme is the final authority on facts, that the other building possessed by the tenant is not reasonably sufficient for the tenant's requirement, which is for conducting a fairly large scale textile business, is a finding entered on the basis of appreciation of the evidence. We cannot upset that finding in our present jurisdiction. 6. The result of the above discussion is that both the revisions will stand dismissed. The eviction order passed under Section 11(3) will stand confirmed. 7. After we made our decision known, Smt. Prabha R. Menon requested that her clients revision petitioners in RCR No. 207 of 2005 be granted one year's time. This request is opposed teeth and nail by Sri. T.P. Sajid. He submitted that granting further time in these revisions which have been pending before this Court for about seven years will be unjust. Notwithstanding the stiffness of the opposition, we feel that the revision petitioners can be given time till RCR. 207 & 514 of 2005 -10- 31-12-2012 on certain conditions. Accordingly we direct the execution court to keep in abeyance the proceedings for execution of the eviction order passed under Section 11(3) till 31-12-2012 subject to the following conditions: 1) The revision petitioner in RCR. No. 207 of 2005 will file an affidavit before the execution court or the Rent Control Court, as the case may be, within one month from today undertaking to give peaceful surrender of the petition schedule building to the first respondent on or before 31-122012. 2) Through the same affidavit it will also be undertaken that the deponent will pay occupational charges to the landlord with effect from 1-02-2012 at the rate of Rs.1000/- till actual surrender of the building is given. Through the same affidavit it will be undertaken that rent which has fallen due in respect of the building at the rate of Rs.450/- per mensem after commencement of the rent control proceedings less any amount paid towards rent RCR. 207 & 514 of 2005 -11- either before the Rent Control Court or the Appellate Authority or before this Court, will be paid within a period of two months from today. We make it clear that unless the affidavit is filed on time and all the undertakings therein are honoured the revision petitioner in RCR No. 207 of 2005 will not get benefit of time as allowed above. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-