C.K. Trading Company v. K. Abdul Rahiman Haji

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR`** ``` & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 15[TH]DAY OF FEBRUARY 2023 / 26TH MAGHA,1944 ``` ``` RCREV. NO. 28 OF 2023 ``` ``` RCA 57/2015 OF ADDITIONAL DISTRICT COURT – II/RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP 86/2012 OF MUNSIF COURT / RENT CONTROL COURT, KUTHUPARAMBA ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` C.K.TRADING COMPANY, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, REPRESENTED BY ITS MANAGING PARTNER CHERIYAMMAL YUSUF, AGED 61 YEARS, S/O. KUNHIPAKKI, RESIDING AT CHERUVANCHERY ASMOM AND DESOM, KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT, PIN – 670643. ``` ``` BY ADVS. SRI.V.PREMCHAND SMT.SURYA MOHAN P. SMT.FATHIMA SHALU S. SRI.P.K.JANARDHANAN ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` K.ABDUL RAHIMAN HAJI, AGED 54 YEARS, S/O. ABOOBACKER, ERUVATTY AMSOM, PANUNDA DESOM, THALASSERY TALUK, KANNUR DISTRICT, PIN – 670101. ``` ``` BY ADV GAYATHRI KRISHNAN(K/771/2012) (CAVEATOR) ``` ``` THISRENTCONTROLREVISIONHAVINGCOMEUPFORADMISSIONON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCRev No.28 of 2023 2 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ## **------------------------------------------RCRev No. 28 of 2023** ## **-------------------------------------------** Dated this the 15[th] day of February, 2023 ## **O R D E R** ## **Sophy Thomas, J.** The tenant is the petitioner and the landlord is the respondent in this revision. The judgment of the Rent Control Appellate Authority in RCA No. No.57 of 2015, upholding eviction ordered by the Rent Control Court in RCP No.86 of 2012, is under challenge. 2. The landlord filed RCP No.86 of 2012 for evicting the tenant under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control Act (hereinafter referred to ‘The Act’), on the ground of _bona fide_ need and the tenant subsequently acquiring building reasonably sufficient for his business. The tenant opposed that petition contending that the son-in-law of the landlord is doing a flourishing business in Mysore and so the contention of the landlord that he is in _bona fide_ need of that building for his son-in-law to RCRev No.28 of 2023 3 conduct a wholesale and retail business of grocery and stationery is not correct. Moreover, there is no _bona fides_ in his statement that he is intending to demolish the partition wall between the two adjacent rooms for accommodating the grocery business proposed by his son-in-law. The fact that no permission was obtained from the Municipality will speak about his false claim. The landlord is trying to evict the tenant somehow for letting out that building to third parties at a higher rate of rent. The tenant is in need of the petition schedule building for stocking and selling goods and he is mainly depending on that business for his livelihood and no other buildings are available in that locality to shift his business. 3. PW1 was examined and Exts A1 and A2 were marked from the side of the landlord and RW1 was examined from the side of the tenant. Ext.C1 was marked as Court Exhibit. 4. On analysing the facts and evidence, the Rent Control Court allowed the petition ordering eviction under Sections 11(3) and 11(4)(iii) of the Act. The tenant took the matter in appeal, by filing RCA No.57 of 2015. The Appellate Court also found that the landlord was in _bona fide_ need of the petition schedule building and he had acquired other rooms, reasonably sufficient for his requirement. So, RCRev No.28 of 2023 4 the appeal was dismissed confirming the order of the Rent Control Court. 5. Heard learned counsel Sri.V.Premchand appearing for the tenant and learned counsel Smt.Gayathri Krishnan appearing for the landlord. 6. In this revision, we are called upon to examine whether there is any illegality, irregularity or impropriety in the judgment of the Appellate Court in RCA No.57 of 2015, warranting interference by this Court. 7. PW1 is the son-in-law of the landlord, for whom the landlord wanted to evict the tenant, for conducting a wholesale and retail business of grocery and stationery. The tenant has no case that PW1 is not the son-in-law of the landlord or he is not dependent on him for the building. According to PW1, he was running a business at Mysore, which ended in loss and so he stopped that business and returned to Kerala intending to start a wholesale and retail business of grocery and stationery, for which he has no other buildings in his possession, except the petition schedule rooms, which belong to his father-in-law. According to him, the petition schedule rooms can be RCRev No.28 of 2023 5 conveniently converted to suit his business, by removing the partition wall. It is true that he has not produced any plan or permission from the Municipality to demolish the partition wall or to do the modification works. That can be obtained by the landlord even after getting vacant possession of the rooms. There was nothing to disbelieve the case of the landlord substantiated with the oral testimony of PW1, for whom the building was needed, to find the _bona fide_ need advanced by him. The landlord has to decide the manner in which his building is to be made use of, and the tenant cannot dictate terms on him. When the landlord says that his son-in-law, who is dependent on him for building, needed those rooms for starting a business and the son-in-law also gave testimony as to his intention to start the business, nothing more is needed to substantiate their _bona fide_ need. So the finding of the Rent Control Court as well as the Appellate Court with regard to the _bona fide_ need projected by the landlord does not suffer from any illegality or impropriety, and so it needs no interference. 8. The tenant is seeking the benefit of the Provisos to Section 11(3) of the Act. But he failed to prove that the landlord is in possession of any other building in his possession convenient for his RCRev No.28 of 2023 6 son-in-law to start the wholesale business of grocery and stationery. It has come out in evidence that adjacent to the petition schedule rooms, the landlord is having two other rooms and those rooms are in possession of other tenants and he has obtained orders of eviction to vacate those tenants, for the very same purpose of starting wholesale business for his son-in-law. If the landlord is of the view that the petition schedule rooms are also needed to conduct the wholesale business of his son-in-law, the tenant cannot restrict him to start the business in the rooms for which he has now obtained orders of eviction. Possession of those rooms by the landlord cannot be termed as other buildings to cater his need, when he is in need of those rooms, as well as the petition schedule rooms, to start the business. 9. Regarding the Second Proviso also, since the tenant is a firm, it cannot take up a contention that the business in the petition schedule rooms is the main source of its livelihood. As it was held in **Hagi P. Mammu vs. Abdurahiman Basha** [1986 KHC 326] and **Kerala Sarvodaya Sangam, Kozhikode vs. Sara Verghese and Others** [2011 (1) KHC 261], a firm is not entitled to the protection of Second Proviso to Section 11(3) of the Act. Regarding availability of other suitable rooms, RW1 deposed that the tenant, which is a RCRev No.28 of 2023 7 partnership firm, is having five rooms, of which two rooms are used to run the shop, and three rooms in the upstairs are in a closed condition. Moreover, the firm is having two godowns in the opposite building. Ext.C1 Commission Report also substantiates the fact that the tenant is occupying other rooms and godowns and there are three unoccupied rooms in their possession in the upstairs of that building. Considering that fact, it has to be found that the tenant is having other buildings and business and they are not solely depending on the business in the petition schedule rooms. So also the tenant is not entitled to get the benefit of Second Proviso to Section 11(3) of the Act. 10. Regarding the eviction ordered under Section 11(4)(iii) of the Act also, going by the Commission Report, the tenant is having other rooms in their possession; one on the ground floor, three in the upstairs and also a staircase room. Moreover, they are having two godowns in the opposite side of the schedule building. So it has to be found that the tenant is in possession of rooms and buildings reasonably sufficient to cater their requirement in the same locality and if it was not sufficient, the burden was upon the tenant himself to prove it. The tenant failed to adduce any evidence in that regard. RCRev No.28 of 2023 8 11. Considering the facts, evidence and circumstances, detailed above, we find no illegality, irregularity or impropriety in the impugned judgment to interfere with. In the result, the Rent Control Revision fails and hence dismissed. The pending Interlocutory Applications, if any, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **SOPHY THOMAS JUDGE** DSV/17.02.2023