C.M. SADICK & SALES & DISTRIBUTION v. A.A. SHAHID & OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 RCRev..No. 97 of 2008() ----------------------RCA.47/2005 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.172/2003 of III ADDL.M.C.EKM (RENT CONTROL) .................... : APPELLANTS IN RCA/RESPONDENTS 1 & 6 IN RCP ----------------------------------------------------------- 1. C.M.SADICK, S/O. LATE C.M.MOHAMED AGED 42 YEARS, SALS & DISTRIBUTION 40/3521, JEWS STREET, ERNAKULAM, KOCHI-35. 2. SALES & DISTRIBUTION 40/3521, JEWS STREET, ERNAKULAM, KOCHI-35 REP. BY ITS MANAGING PARTNER C.M.SADICK, S/O. LATE C.M.MOHAMED BY ADV. SMT.R.RANJINI SRI.S.RENJITH SRI.T.R.S.KUMAR RESPONDENTS: RESPONDENTS IN RCA/PETITIONER & R2 TO 5 IN RCP ----------------------------------------------------------- 1. A.A. SHAHID, AGED 50 YEARS S/O.LATE A.B.ABDUL KHADER, VILLA NO.20 SKYLINE CRYSTAL WATERS, MASTER ROAD VADUTHALA, ERNAKULAM. 2. C.M. ISMAIL, S/O.LATE C.M.MOHAMMED AGED 45 YEARS, 44/2342 A, POTTAKKUZHI ROAD COCHIN NOW RESIDING AT P.B.NO.15003, DOHA QUATAR. 3. C.M.SALAM, S/O.LATE C.M.MOHAMMED AGED 52 YEARS, RESIDING AT WHITE HOUSE PULLEPPADY ROAD, KOCHI-18. 4. MRS. AMINA SIDHICK D/O.LATE C.M.MOHAMMED, AGED 56 YEARS "ASHIYANA",NAINA KUTTY LANE, S.R.M. ROAD ERNAKULAM. 5. MRS. SELMA SHERIF, D/O.LATE C.M.MOHAMMED AGED 41 YEARS, KOLANGATTU PARAMBIL, TRIPRAYAR TRICHUR. BY ADV. SRI.N.M.MOHAMMED AYUB FOR CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON 25/6/2008 PASSED THE FOLLOWING: ORDER IN IA NO.938/2008 DISMISSED. 25/6/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R.No.97 of 2008** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June, 2008.** ## **O R D E R** ## Ramachandran Nair, J. This revision petition is filed by the petitioners herein who are tenants in R.C.P.No.172/2003 which was filed by the first respondent, the landlord of the building. The landlord sought eviction of the building under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act'). The Rent Control Court ordered eviction on the ground urged under Section 11(3) and disallowed eviction under Section 11 (4)(iii) of the Act. The same has been confirmed in appeal by the Appellate Authority. 2. The whole dispute lies in a narrow compass. The landlord sought eviction for starting a wholesale business of fruits in the petition schedule building. The building was originally let out to one late Shri Muhammed, on whose death the tenancy devolved on the respondents in the Rent Control Petition. The petitioners herein alone contested the proceedings and the others remained ex-parte. Admittedly, they are doing the business of glasswares and the rent payable is Rs.400/- per month. The petitioners RCR 97/2008 -2- herein mainly contended that they are conducting business in the building as a partnership and actually the ground pleaded by the landlord is only a ruse for eviction. It was mainly pleaded that the proposed business is not feasible in the building as no road traffic is allowed in Jews Street where the building is situated and it was further pleaded that the landlord is having another building in his possession for conducting the business. 3. The evidence consists of oral testimony of P.Ws.1 and 2 and Exts.A1 and A2 were marked on the side of the landlord. The petitioners herein examined R.Ws.1 and 2 and produced Exts.B1 to B22. Ext.C1 is the Commission report. 4. The Rent Control Court overruled all the objections raised by the tenants on a detailed analysis of the evidence before it. It was found that the bonafide need urged by the landlord is a genuine one, that the objection pointed out by the tenants that wholesale business is not feasible in the building is not correct and that the landlord is not in possession of other rooms for conduct of business. It was also found that the petitioners herein are not entitled for the benefit of the second proviso to Section 11(3) of the Act. The Appellate Authority concurred with the above findings. 5. Heard the learned counsel for the petitioners Mrs. Ranjini and the learned counsel for the respondents Shri S. Sreekumar. RCR 97/2008 -3- 6. Learned counsel for the petitioners submitted that the authorities below have not properly considered an important point as regards the availability of suitable buildings for the landlord to conduct business. In fact, this is the main point argued by the learned counsel for the petitioners. Learned counsel submitted that going by the first proviso to Section 11(3) of the Act, if the landlord is in possession of another building of his own, special reasons ought to have been pointed out and in the absence of the same, the authorities cannot give any direction to the tenants to vacate the building. It is pointed out that going by Ext.B6 settlement deed of 1971, the landlord was having five buildings and in the absence of any evidence to the contra, it should be presumed that he is in possession of some of them, except the buildings he had sold, and therefore as no special reasons have been pointed out, the petition ought to have been dismissed. The learned counsel for the first respondent landlord submitted that the said argument has no merit in the light of the pleadings and evidence in this case. 7. Before going to the crux of the argument raised by the learned counsel for the petitioners, we may refer to the pleadings raised by the petitioners before the Rent Control Court, to appreciate the said argument. In paragraph 5 of the objection filed by the petitioners herein, the crucial averment as regards this aspect is that “the petitioner is one of the biggest RCR 97/2008 -4- landlords in the city owning number of buildings and he can conduct the proposed business in any one of the building owned by him. Many rooms in the petitioner's building are lying vacant”. But the petitioners have not pointed out any particular room or building which is lying vacant for the landlord to do business. 8. The landlord was examined as P.W.1. In the proof affidavit he has denied the averment contained in the objection filed by the tenant that there are vacant rooms in his possession and stated that no other buildings are in his possession. In the cross examination, he stated that he was having two rooms, one in the Jews Street and another in Broadway which have been sold to the tenants who were occupying the same. The building in Jews Street was sold 5 to 8 years back and the room in Broadway was sold just before the filing of the Rent Control Petition. But negotiations were there for the conveyance of the building long prior to that and the said building was also sold to the tenant who was occupying the same. The said building had to be sold for meeting the medical expenses of his wife. The suggestions put to him regarding availability of buildings in the shopping complex owned by the family was also denied by him. Thus, it is clear, on a reading of the deposition of P.W.1, that the petitioners had not put any suggestion regarding the availability of rooms by relying upon Ext.B6. RCR 97/2008 -5- 9. The first petitioner was examined as R.W.1. Ext.B6 was marked in evidence to plead that two of the rooms referred to therein are remaining vacant. Learned counsel for the petitioners vehemently argued that the tenants have discharged their burden by pointing out two vacant rooms and as the landlord has not adduced any contra evidence, the unchallenged evidence thus adduced by the tenant is crucial as far as the issue regarding availability of vacant rooms in the possession of the landlord is concerned, for the purpose of the first proviso to Section 11(3) of the Act and therefore the eviction petition can only be dismissed. It is contended that going by Ext.B6, the landlord was allotted five buildings/room and even if he had sold two of them, it should be presumed that the remaining buildings are with him and lying vacant. 10. We may at once notice that no attempt was made by the petitioners to take out a commission in support of the plea that the landlord is having vacant rooms in his possession, that too within the town itself. No explanation is offered for not adducing any further evidence on this aspect. As noticed earlier, when the landlord was cross examined, no particular suggestion was made as regards these two rooms with the landlord. It is only after the evidence on the part of the landlord was concluded, that the tenant has come up with Ext.B6. In the objections filed in the Rent Control RCR 97/2008 -6- Petition also, there was no such case as regards vacant possession by the landlord of any particular building. Therefore, the argument now raised before this court by relying upon Ext.B6, has to be assessed in the above factual situation. 11. That the landlord has denied having possession of any other rooms within the town is clear from his own proof affidavit. He had denied in his cross examination various suggestions made to him especially in respect of the rooms he was owning in Jews Street and Broadway as well as in the shopping complex, viz. Kockers Complex. Thus, the landlord has clearly discharged his burden of showing that he was not having any building remaining vacant at the time of filing of the Rent Control Petition. Apart from the mere assertion in the deposition by the tenant, no particular effort was made to show that any building is remaining vacant for immediate occupation of the landlord. Even when examined as R.W.1, the tenant has not pointed out any particular building with building number, etc. to support the plea that they are remaining vacant and in the possession of the landlord. Thus, we are of the view that the tenant has miserably failed to establish and prove the said contention by any cogent and reliable evidence. Therefore, the argument raised by the learned counsel for the petitioners by relying upon Ext.B6 settlement deed cannot hold good. The RCR 97/2008 -7- landlord has categorically denied possession of any vacant rooms and read with other materials it will be evident that the faint plea raised by the tenant has no legal support. 12. In fact, a reading of the order passed by the Rent Control Court will show that the above aspect was considered in paragraph 9 of the order. It was clearly found that no satisfactory evidence was adduced to show that vacant rooms are remaining in the building in Chittoor Road. It was also found that going by the decision of this court in **Asher v. Hassankutty Hajee** (2004 (2) KLT 446), the co-ownership over a building will not disentitle a landlord under the first proviso, to claim eviction under Section 11(3) of the Act. After referring to the other suggestions put to the landlord, the Rent Control Court has made reference to Ext.B6 and relied upon the deposition of P.W.1 that presently there is no building in his name except the petition schedule room, to reject the contention raised by the tenant. Thus, this is a matter which was considered by the Rent Control Court also with reference to the evidence adduced before it. In fact, it was observed by the Rent Control Court that the landlord was not confronted with Ext.B6 document by the tenant while he was cross examined. 13. These aspects have been considered by the Appellate Authority RCR 97/2008 -8- in paragraphs 13 and 14 of the judgment. The Appellate Authority found that no evidence is forthcoming to show that the landlord is in possession of any other building in the same city, town or village, so as to start the proposed business. 14. Thus, the conclusion is irresistible that the tenant has miserably failed to prove the elements to discharge the burden that the landlord is having in his possession of other vacant building in the same city, town or village for his occupation. Therefore, the spacious plea raised before us by the learned counsel for the petitioners has only to be rejected and we do so. 15. As we have already noticed, the authorities below have concurrently found in favour of the landlord on the bonafide need pleaded. On the evidence the said conclusions are justified. We find that the authorities below have considered the evidence and appreciated the same in the right perspective and the view taken is a plausible one also. For all these reasons, we dismiss the revision petition. At this stage, the learned counsel for the petitioners sought for some time to vacate the premises. We grant six months time from today to the petitioner to vacate the premises on condition that he files an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry of six months from RCR 97/2008 -9- today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. The petitioners shall deposit the entire arrears of rent, if any, within the aforesaid period of three weeks and shall continue to pay an amount equivalent to the rent payable, towards compensation for use and occupation, till possession is surrendered. If any of the conditions aforesaid is violated, then the order of eviction will become enforceable at once. **( P.R.Raman, Judge.)** ## **(T.R. Ramachandran Nair, Judge.)** **kav/**