Chirakkal Muhammed v. Kokkandiyeri Andru Haji and ThatttukandiYil Rafi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 RCREV. NO. 233 OF 2015** **RCP NO.42 OF 2013 OF MUNSIFF COURT, NADAPURAM CONCURRING WITH THE COMMON ORDER IN RCA NO.54 OF 2014 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOZHIKODE / III ADDITIONAL MACT, KOZHIKODE** ## **REVISION PETITIONER/S:** CHIRAKKAL MUHAMMED,AGED 45 YEARS S/O.KUNHABDULLA, BUSINESS, KUMMAMKODU AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 101, KERALA STATE. BY ADVS.SRI.R.SUDHIR SRI.MOHAN PULIKKAL SRI.NARAYANAN P POTTY ## **RESPONDENT/S:** 1 KOKKANDIYERI ANDRU HAJI,AGED 71 YEARS BUSINESS, S/O.KUNHABDULLA, KUMMAMKODU AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 101, KERALA STATE. 2 THATTUKANDIYIL RAFI,AGED 41 YEARS,S/O.MOIDU, 'LAMA COLLECTIONS', V.K.COMPLEX BUILDING, BUILDING NO.NPX VI-1097, NEAR NADAPURAM BUS STAND, KUMMAMKODU AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 101, KERALA STATE. **** THE NAME OF R2 IS STRUCK OFF AT HE RISK OF HTE PETITIONER AS PER ORDER DT.23.9.2016 IN IA 193/2016.** THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R.C.REV. NO. 233 OF 2015** -2- ## **P.B.SURESH KUMAR & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **R.C.REV. NO. 233 OF 2015** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## ORDER (Dated this the 28[th] day of October 2022) ## Basant Balaji J., The revision petitioner was the first appellant in R.C.A. No.54 of 2014 on the files of the Rent Control Appellate Authority, Kozhikode, which was filed against the order in R.C.P No.42 of 2013 on the files of Munsiff and Rent Controller, Nadapuram. 2. The Rent Control Petition was filed seeking eviction of the tenant/appellant under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). ## **R.C.REV. NO. 233 OF 2015** -3- 3. The facts of the case are as follows;- The petition schedule building belongs to the petitioner. The first respondent as per registered kychit dated 20.3.1990 took the building on rent at the rate of 450/- per month for 11 months. There was periodical enhancement of rent and the present rate of rent per month is Rs.1,100/- from 1.1.2011 onwards. Rent is in arrears from 1.5.2012 and the first respondent sublet the building to the second respondent violating the terms and conditions of entrustment. Moreover material alternations have been done to the building by the respondents. The petitioner's second son Illias aged 23 years has no job and he is depending on the petitioner for his livelihood. He wants to start a stationary business in the petition schedule room and there are no other vacant rooms in the building ## **R.C.REV. NO. 233 OF 2015** -4- for the said purpose. The first respondent, even after repeated request, is not giving the vacant possession of the shop rooms. 4. The respondents entered appearance and filed counter contending that there is no arrears of rent as submitted by the petitioner. The allegation that the shop room is sublet to the second respondent was denied. The first respondent is a handicapped person and second respondent is appointed as his worker. The purpose projected in the petition is not a _bonafide_ need. The petitioner, in whose name, the eviction is sought is having business in Bangalore. The income derived from the business is the sole source of income for his livelihood. The petition is filed only to get the respondent evicted and give the shop room to a third person on a higher rent. ## **R.C.REV. NO. 233 OF 2015** -5- Hence, prayed for dismissal of the petition. 5. The Rent Controller raised 7 issues and allowed the petition and granted eviction under Section 11(3) of the the Act. Aggrieved by the order of the rent controller the first respondent alone filed appeal before the Rent Control Appellate Authority, Kozhikode as RCA No.54 of 2014. The Rent Control Appellate Authority concurred with the findings entered by the rent controller regarding the eviction granted under section 11(3) of the Act. Aggrieved by the said judgment of the Rent Control Appellate Authority, this revision is filed under section 20 of the Act. 6. The counsel for the appellant submits that though the courts below have entered into a finding that there is a _bonafide_ need for the petitioner there was a specific admission of the landlord during cross examination that he ## **R.C.REV. NO. 233 OF 2015** is in possession of four rooms wherein his children are conducting business and another vacant room is available in the same building. The courts below did not properly appreciate the first proviso to section 11(3) of the Act. No specific reason was pointed out by the counsel for the petitioner in the petition for not utilising the vacant shop room with him and in the absence of a special reason the courts below ought not have allowed the petition for eviction under section 11(3) of the Act. 7. Though notice issued to the first respondent from this court was served, he has not chosen to enter appearance before this court. 8. Petition schedule room was taken by the first respondent on 20.3.1990 for rent of 450 per month. The petitioner's son, who was aged 23 at the time of filing of the **R.C.REV. NO. 233 OF 2015** petition, was not having any job and was depending upon the petitioner for his livelihood and therefore, he wanted a shop room belonging to the petitioner to start a stationary business. It is the case of the petitioner that he is ready to give financial support to start stationary business for his son and therefore, the petitioner has a _bonafide_ need to get vacant possession of the shop room owned by the first petitioner to hand it over to his son to start business. It has also come in evidence that the petitioner's son was working as salesman in a readymade shop at Bangalore and since he was not fluent with the language there, he had left that job and came back home, so that he could start a business of his own in the shop room of his father. He has selected the stationary business as there are schools and colleges near the shop room and finding that there is a need ## **R.C.REV. NO. 233 OF 2015** for such a stationary shop he intends to start the said business. A space of at least 600 sq.ft. is necessary to start the business. 9. Before the Tribunal, the petitioner as well as his son were examined as PW1 and PW2 and first respondent as RW1. PW1 has categorically stated that even though four rooms are given to his other sons, there is other one small room which is vacant and it is on the first floor of the building. It is at the instance of his son to start a business, the present petition was filed seeking eviction of the first respondent. PW2 has deposed before the Rent Controller that though his brother has five rooms in other building, he cannot start any business in that room and he _bonafide_ needs the shop room occupied by the first respondent to start stationary business as it belongs to his father. The ## **R.C.REV. NO. 233 OF 2015** Rent Controller as well as the appellate authority has categorically entered into a finding that the need projected by the petitioner is a _bonafide_ need to start a business for his son in stationary. One of the contentions raised by the counsel for the revision petitioner is that the tenant is entitled to benefit of the first proviso to Section 11(3) of the Act as the petitioner/landlord has got possession of another shop room in the same building which can be conveniently used for the need projected. 10. When petitioner was examined as PW1 he has admitted that though he is having 18 rooms of his own, his four children are occupying 4 rooms and the vacant shop room in the upstairs, which is not suitable for starting a stationary business as the customers will be reluctant to climb the stairs and reach the shop. A division bench of ## **R.C.REV. NO. 233 OF 2015** -10- this court in **Venugopalan Nair P v. Mohamedkunhi [2010 (2) KHC 249]** held that the power of landlord to pick and choose a particular room from among several **tenant** cannot be questioned in the absence of oblique motive. In **Chennikkatt Moideen Koya v. Ezhuthuppalli Vijayan (SLP (C) No.4057 of 2014)** the apex court has held that the landlord can decide as to which floor he will prefer for his personal need and once it is not disputed that the landlord is in _bonafide_ need of the premises, the court cannot dictate the landlord as to which floor he should use. Thus the court below held that there is a special reason for not occupying the available space which is now in the hands of the petitioner in the first floor and thereby the first proviso was denied to the tenant. 11. We have gone through the order of the Rent ## **R.C.REV. NO. 233 OF 2015** -11Controller as well as the appellate authority. We do not find any impropriety or illegality in the order passed and hence, we are of the considered opinion there arise no ground to interfere with the order of the appellate authority and therefore Rent Control Revision fails and it is dismissed. **SD** **P.B.SURESH KUMAR, JUDGE** **SD BASANT BALAJI, JUDGE** _dl/_