Chovvakkaran Pazhaya Parambath Aluppi v. Kaittal Mayan Parambath Abdul Majeed and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940 ## RCRev..No. 69 of 2014 AGAINST THE ORDER/JUDGMENT IN RCA 79/2007 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 04-01-2014 AGAINST THE JUDGMENT IN RCP 32/2005 of RENT CONTROL COURT, THALASSERY DATED 27-02-2007 ## - REVISION PETITIONER/APPELLANT/RESPONDENT NO.2: CHOVVAKKARAN PAZHAYA PARAMBATH ALUPPI S/O.KUNHI MOOSA, RESIDING AT NEAR STAR HOTEL,M.G.ROAD, THALASSERY, KANNUR DISTRICT. BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.ROVIN RODRIGUES ## RESPONDENT/S/RESPONDENTS/PETITIONER & LRS OF RESPONDENT NO.1: 1 KAITTAL MAYAN PARAMBATH ABDUL MAJEED S/O.MAMMU, RESIDING AT THALASSERY, VADIKKAKAM THROUGH POWER OF ATTORNEY HOLDER K.P.MAYAN,S/O.MOIDU, 'ALIMAS', P.O. KOTTAYAMPOYIL, THALASSERY,KANNUR DISTRICT, PIN - 670 691. (DIED) 2 CHOVVAKKARAN KELOTH PUTHIYA MALIKAMMAL KUNHAMINA W/O.LATE V.P.MUHAMMED, 'HABEEBATH', KAYYATH ROAD,TELLICHERRY, PIN 670 101. [DELETED) 3 CHOVVAKKARAN KELOTH PUTHIYA MALIKAMMAL SUHARA D/O.LATE V.P.MUHAMMED, 'HABEEBATH', KAYYATH ROAD,TELLICHERRY, PIN 670 101. RCR No. 69/2014 -2- - 4 CHOVVAKKARAN KELOTH PUTHIYA MALIKAMMAL UMMAYYA D/O.LATE V.P.MUHAMMED, 'HABEEBATH', KAYYATH ROAD,TELLICHERRY, PIN 670 101. [DELETED] - 5 CHOVVAKKARAN KELOTH PUTHIYA MALIKAMMAL JALEEL S/O.LATE V.P.MUHAMMED, 'HABEEBATH', KAYYATH ROAD,TELLICHERRY, PIN 670 101. [DELETED] - 6 CHOVVAKKARAN KELOTH PUTHIYA MALIKAMMAL THAHIRA D/O.LATE V.P.MUHAMMED, 'HABEEBATH', KAYYATH ROAD,TELLICHERRY, PIN 670 101. [DELETED] - 7 CHOVVAKKARAN KELOTH PUTHIYA MALIKAMMAL AYHA D/O.LATE V.P.MUHAMMED, 'HABEEBATH', KAYYATH ROAD,TELLICHERRY, PIN 670 101. [DELETED] - 8 CHOVVAKKARAN KELOTH PUTHIYA MALIKAMMAL HABEEBA D/O.LATE V.P.MUHAMMED, 'HABEEBATH', KAYYATH ROAD,TELLICHERRY, PIN 670 101. [DELETED] - 9 CHOVVAKKARAN KELOTH PUTHIYA MALIKAMMAL KADEEJA D/O.LATE V.P.MUHAMMED, 'HABEEBATH', KAYYATH ROAD,TELLICHERRY, PIN 670 101. [DELETED] [RESPONDENTS 2 AND 4 TO 9 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 05/06/2015 IN IA.1245/2015] ## **ADDL. R10 TO R15 IMPLEADED:** - 10 MALLATTI RANDU PURAYIL MARIYU AGED 55 YEARS W/O LATE K.M ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY. - 11 SAJANA ANWAR AGED 37 YEARS - D/O LATE K.M ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY. 12 SHAFANA AGED 35 YEARS D/O LATE K.M ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY. 13 FEBINA AGED 33 YEARS D/O LATE K.M ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY. RCR No. 69/2014 -3- 14 HELNA AGED 31 YEARS D/O LATE K.M ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY. 15 NESLE AGED 29 YEARS S/O LATE K.M ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY. (ADDL.R10 TO R15 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R1 AS PER ORDER DATED 05.07.2018 IN I.A.NO. 2356/2017) BY ADVS. SRI.GEORGE MATHEWS(*CAVEATOR) SRI.P.E.THOMAS SRI.GEORGE MATHEWS SRI.GEORGE MATHEWSCAVEATOR SRI.GRASHIOUS KURIAKOSE (SR.) SRI.P.BHARATHAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **ORDER** ## K. Harilal, J The revision petitioner is the tenant who is confronting with an order of eviction passed concurrently under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short) against him. The parties are referred to as in the Rent Control Petition. 2. According to the petitioner, he _bona fide_ requires the petition schedule shop rooms along with two other shop rooms in R.C.P. Nos. 18 and 19 of 2005 to start a shop for the sale of electrical and electronic items, for his son, who is depending on him for the petition RCR No. 69/2014 -4- schedule building. According to him, neither the petitioner nor the dependent has any other building of their own in their possession to start the proposed business. But, several other vacant buildings are available in the locality to shift the respondent's business from the petition schedule building. The respondent is not depending upon the income, which derives from the business in the tenanted premises. Hence, he prayed for an order of eviction under Section 11(3) of the Act. 3. The respondent resisted the claim for eviction under Section 11(3) of the Act contending that the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. According to him, the dependent for whose need the petition schedule building is required is an engineering student and actually, he does not require the petition schedule building for starting the proposed business. The petitioner has other shop rooms of his own in his possession to start the proposed business. He is depending mainly on the income derived from the business in the tenanted premises and no other buildings are available in the locality to shift his business from the tenanted premises. Hence, he prayed for the dismissal of the Rent Control Petition. 4. On the aforesaid rival pleadings, both parties adduced RCR No. 69/2014 -5- evidence and after re-appreciating the evidence, the courts below concurrently found that the need projected in the petition is _bona fide_ and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act and the claim for eviction is not barred by the first proviso to Section 11(3) of the Act. The legality and correctness of those findings are challenged in this revision petition. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 6. At the outset, we must remind ourselves the limited scope and extent of interference in a revision petition, which is confined to the legality and propriety of the findings of the courts below. This Court is not inclined to re-appreciate the entire evidence on record on factual findings and the interference with the factual findings of the courts below is permitted only if this Court finds that the findings of the courts below on factual findings are perverse or vitiated by nonconsideration of material facts and evidence. Bearing the aforesaid legal proposition in mind, we have considered the concurrent findings of the courts below and the arguments advanced by the learned counsel for the respondent. RCR No. 69/2014 -6- 7. Learned counsel for the respondents advanced arguments canvassing the point that it has come out in evidence that the son of the petitioner for whose need eviction was sought for, is the Director of a company, having large scale business and the actual turnover of the company during 2009-10 and 2011 are Rs.1,24,18,760/-, Rs.85,84,913/- and Rs.57,59,721/- respectively. Therefore, the need alleged in the petition is not a dire need or a _bona fide_ one. Further, it is contended that the petition schedule shop room is a small one and considering the size of the shop room, there is no possibility to start electrical and electronic business in the petition schedule building. That apart, the other shop rooms are situated far away from the petition schedule shop room. Therefore, it is not possible to start business in altogether three rooms. But the court below miserably failed to consider the aforesaid evidence on record in its correct perspective. 8. In view of the said submission, the point to be consider is, whether the findings of the court below that the need projected is _bona fide_ are perverse or not. It stands settled by a plethora of decisions of this court as well as the Supreme Court that the need need not be a dire need and the landlord having several sources of income can start a new business to augment his income. In RCR No. 69/2014 -7- Shamsudheen v. Balan Nair [2014(2) KLT 978], Kurian v. Sunny John [2016(2) KLT SN 124] this court held that even if the landlord is a man of wealth and assets or living in affluency his claim for eviction on the ground of _bona fide_ need to start a new business cannot be rejected if he is determined of starting another business. 9. In view of the aforesaid decisions, we are of the opinion that the fact that the dependent, for whose requirement the petition schedule shop room is sought to be evicted, is a Director of a company having huge business turnover is of no consequence at all while determining the _bona fides_ of his claim to start a new business. Further, in Kurian's case (supra)this court held that law does not insist that a landlord having other source of income shall not carry out another income activity or venture to start a new business. In order to prove the _bona fides_ of the need, the petitioner as well as the dependent were examined as Pws 1 and 2 respectively and they have spoken to the _bona fides_ of the need. The courts below observed that nothing has been brought out to discredit their oral evidence. This court is not inclined to take a different view, in exercise of revisional jurisdiction, in the absence of any kind of perversity in the appreciation of evidence. 10. Secondly it is contended that the tenanted premises is a RCR No. 69/2014 -8- small shop room and it is not possible to start eletronic and electrical items in the said shop room. Indisputably, the petitioner has filed two other rent control petitions also, seeking an order of eviction for the same proposed business and all the three shop rooms are situated within a single compound. If all the three shop rooms are situated in a single compound, it cannot be held that the proposed business cannot be started using three shop rooms together. 11. The learned counsel for the petitioner further contended that the respondent has been depending upon the income from the business in the tenanted premises and it is the sole source of income. But the courts below failed to consider his evidence in its correct perspective. It is needless to say, both limbs under the 2[nd] proviso are conjunctive and the burden of proof is on the tenant. 12. Going by the impugned judgment it could be seen that the only available evidence under the 2[nd] proviso is the oral assertion of the tenant himself in his evidence. This court has already held that mere oral assertion of the tenant is not sufficient to discharge the burden of proof under the 2[nd] proviso. In _Shahul Hameed A. v. P.E.Abdu Razak_ [2016 (5) KHC 820] this court held that the tenant who has failed to produce documents to prove his income before the court and who is hiding his income from the court is not entitled to get RCR No. 69/2014 -9- protection under the 1[st] limb of the 2[nd] proviso. No evidence was forthcoming to prove the non-availability of the buildings in the locality and the respondent himself has admitted that he has not made any enquiry as to the availability of alternative buildings in the locality. In the above view, there is no perversity in the order of the court below that the respondent is not entitled to get protection under the 2[nd] proviso to section 11(3) of the Act. No other point has been raised in this revision. Revision is accordingly dismissed. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given seven months' time to vacate the petition schedule building, on the following conditions: _(1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that they will vacate the petition schedule shop room within seven months from today._ _(2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default._ RCR No. 69/2014 -10- 1. _(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondents/landlord will be at liberty to proceed with the execution of the eviction order._ sd/ _-_ _**K.Harilal, Judge.**_ sd/- _**Annie John, Judge.**_ _rv/sl._ RCR No. 69/2014 -11-