C.K.ABDURAHIMAN @ C.K.ANTHRU v. CHERIYA NALAKATH HAJARA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 3RD DAY OF JULY 2018 / 12TH ASHADHA, 1940** **RCRev.No. 352 of 2016** **AGAINST THE JUDGMENT IN RCA 70/2015 of THE RENT CONTROL APPELLATE AUTHORITY/ ADDL. DISTRICT COURT - IV, KOZHIKODE DATED 30.06.2016** **AGAINST THE ORDER IN RCP 37/2011 of THE RENT CONTROL COURT/ ADDITIONAL MUNSIFF-IA, KOZHIKODE DATED 21.02.2015** **REVISION PETITIONER/ APPELLANT IN R.C.A/ RESPONDENT IN R.C.P : --------------------------------------------------------------** **C.K.ABDURAHIMAN @ C.K.ANTHRU, AGED 65 YEARS, S/O.ABOOBACKER, BUSINESS, C.K.HOUSE, HOUSE NO.13/114, THEKUMTHALA, KUTTICHIRA NAGARAM AMSOM DESOM, KOZHIKODE** **BY ADVS.SRI.A.SUDHI VASUDEVAN (SR.) SRI.M.PRAVEESH SRI.JOSE JONES JOSEPH** **RESPONDENT/ RESPONDENT IN RCA & PETITIONER IN RCP : ---------------------------------------------------** **SMT.CHERIYA NALAKATH HAJARA, AGED 54 YEARS, W/O.IBRAHIM HAJI, OWN AFFAIRS, 19/575, 'AJEEGHAR', CHELAPPURAM P.O., KASABA AMSOM DESOM, KOZHIKODE - 673 003.** **BY ADV. SRI.SRINATH GIRISH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** ## **RKM** ## **K. HARILAL & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **R.C.R.No. 352 of 2016** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 3[rd] day of July, 2018** ## **ORDER** ## _**K. Harilal, J.**_ The revision petitioner is the appellant in R.C.A.No.70/2015 of the rent control appellate authority as well as the respondent in R.C.P.No.37/2011 of the Rent Control Court, Kozhikode. He is the tenant in occupation of the building owned and possessed by the respondent herein under lease agreement. The aforesaid rent control petition was filed under Section 11(2) (b), 11(3) and 11(4)(iii) of the Kerala Building (Lease & Rent Control Act, 1965) (hereinafter referred to as 'the Act'). The revision petitioner herein resisted the said application and both parties adduced evidence on their rival pleadings. After considering the evidence on record, the Rent Control Court as well as the appellate authority concurrently rejected the claim for eviction under Section 11(3) of the Act and passed the order of eviction under Section 11(2)(b) and 11(4)(iii) of the Act. Thus, the revision petitioner has come up in this revision challenging the concurrent findings of the courts below granting the order of eviction under Section 11(2)(b) and 11(4)(3) of the Act to the respondent. R.C.R.No. 352 of 2016 2 2. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. The parties are referred to as in the rent control petition. The case of the petitioner is that the respondent has another building at Puthiyangadi, within the limits of the very same Corporation and the said building at Puthiyangadi is reasonably suitable for conducting the business, which is being conducted in the petition schedule building. Per contra, in the counter statement filed by the respondent, he denied the aforesaid averments in the rent control petition as regards the business in another building at Puthiyangadi and further contended that the building at Puthiyangadi was being used as a godown for stocking the goods required for the sale of the business in the petition schedule building. 3. The petitioner was examined as PW1 and the respondent was examined as RW1. The petitioner has sworn chief affidavit in conformity with the averments that the respondent has another building at Puthiyangadi and the said building is being used for conducting the very same business. In cross examination, it has come out in evidence that the respondent has started the said business at Puthiyangadi R.C.R.No. 352 of 2016 3 during the year 2009-2010. The respondent has sworn proof affidavit denying the allegation that he has been conducting the very same business at Puthiyangadi within the very same Corporation. But in cross examination, he has admitted that he has acquired another building at Puthiyangadi in the year 2010 and started business at the time when the petition schedule shop room was closed by the Corporation. Further, he admitted that both the petition schedule building and the building at Puthiyangadi are situated within the Calicut Corporation. It has come out in evidence that the tenancy of the petition schedule shop room has commenced in the year 2006. Thus the respondent himself admitted that after the commencement of tenancy, the respondent has acquired another building at Puthiyangadi in the year 2010 and started the very same business there at the time, when the petition schedule shop room was remained closed by the Corporation. The statutory mandate under Section 11(4)(iii) of the Act, would come into operation against the tenant, if the tenant already has in possession of the building or subsequently acquires possession of building reasonably sufficient for his requirement in the same city, town or village. So the aforesaid R.C.R.No. 352 of 2016 4 admission would operate against the respondent/ tenant. 4. In the counter statement, the respondent has denied that he has been conducting business in the building at Puthiyangadi at present. But Ext.C1 report shows that the very same business was being conducted by the respondent at Puthiyangadi when the Commissioner inspected the building at Puthiyangadi on 24.03.2011, after the filing of rent control petition. The Commissioner specifically stated that a Name Board displaying the name 'Glass India', Dealers in all kinds of Glass' was found installed in front of the building at Puthiyangadi. Further, the Commissioner reported that several machines required for cutting and polishing of glasses were found in the said premises. It is pertinent to note that further the Commissioner has reported that when he inspected the petition schedule shop room, the petition schedule shop room was found closed and he could not find any kind of business in the petition schedule shop room. Thus, from Ext.C1 it, could be reasonably presumed that at the time of filing of the rent control petition, he stopped business in the petition schedule building and his business was shifted to the building at Puthiyangadi. As far as the rent control petition under Section R.C.R.No. 352 of 2016 5 11(4)(iii) is concerned, the state of affairs of the petition schedule building as well as the subsequently acquired building on the date of filing of the rent control petition is decisive and determinative. In short, the petitioner has successfully proved that the respondent has subsequently, after the commencement of tenancy, acquired possession of another building at Puthiyangadi and he has closed his business, which was conducted in the petition schedule building. 5. It is vehemently contended by the learned counsel for the respondent that the subsequently acquired building at Puthiyangadi is not reasonably sufficient as it is situated 10 kms away from the court premises whereas the petition schedule building is situated 2 Kms. away from the court premises. It is not disputed that both the petition schedule building and the building at Puthiyangadi is situated within the limits of Calicut Corporation. Further, it has come out in evidence of RW1 that when his business was stopped by the Corporation on the complaint of the petitioner, he converted his godown at Puthiyangadi to a shop and continued his business there. The said admission itself is sufficient to arrive at a conclusion that the building at Puthiyangadi was R.C.R.No. 352 of 2016 6 reasonably sufficient for conducting the business, which was being conducted in the petition schedule building. Moreover, if the petitioner/ landlord has succeeded in proving that after the commencement of tenancy, the tenant has subsequently acquired another building, the burden of proof will shift upon the tenant to prove that the subsequently acquired building is not reasonably sufficient for his requirement (see _**Vackachan**_ ## _**v. Kurian [2002 (1) KLT 716]**_ ). 6. In the instant case, Ext.C1 report shows that the respondent was conducting glass business in the building at Puthiyangadi at the time when the Commissioner visited the said building. No evidence has been adduced by the respondent to prove that the building at Puthiyangadi was not reasonably sufficient for his requirements. Thus, the respondent has miserably failed to adduce rebuttal evidence to prove the insufficiency of the building at Puthiyangadi for his requirements. We do not find any illegality or impropriety in the findings whereby the courts below granted an order of eviction under Section 11(4)(iii) of the Act. 7. Coming to the order of eviction under Section 11(2)(b) of the Act, it is the case of the petitioner that the rent R.C.R.No. 352 of 2016 7 of the petition schedule building was in arrear from September, 2008 onwards. In the reply notice, the petitioner has admitted that the rent was in arrear from September, 2008 onwards, but according to him, it was due to the refusal from the part of the petitioner, and he intimated his willingness to pay arrears of rent in the reply notice. No steps were taken to pay rent as provided under Section 9 of the Act. However, during the pendency of the Rent Control Petition, he has deposited admitted arrears of rent only. But, in the counter statement, it was contended that he had paid taxes to the Corporation and the said amount was liable to be adjusted towards the arrears of rent and if that amount is adjusted, it will wipe out the arrears with interest at 6% due to the petitioner. It is pertinent to note that such a plea of adjustment was not raised in Ext.A2 reply notice sent by the respondent to the petitioner and it shows the lack of bonafides in this contention. This Court is of the view that even if he had paid tax towards the Corporation, the said amount cannot be adjusted in a claim under Section 11(2)(b) of the Act as it was incumbent upon the tenant to pay the arrears of rent with interest at 6% per annum and postal charges incurred in sending the notice, within 15 days of the R.C.R.No. 352 of 2016 8 receipt of the notice or of the refusal thereof. Admittedly, the respondent has not paid the arrears of rent with 6% interest per annum and postal charges incurred in sending the notice within 15 days from the date of receipt of the notice. If the tenant fails to pay the said amount within 15 days, an order of eviction will follow notwithstanding the subsequent deposit of arrears during the pendency of the Rent Control Petition. In the above analysis, the concurrent findings whereby an order of eviction has been granted under Section 11(2)(b) also will stand confirmed subject to the right under Section 11(2)(c) of the Act. This revision petition is dismissed. **K.HARILAL JUDGE** **ANNIE JOHN JUDGE** RKM