Common Order in RCRev.435/2019, RCRev.436/2019 and RCRev.442/2019, Kerala High Court

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** **RCRev..No.435 OF 2019** **AGAINST THE ORDER/JUDGMENT IN RCA 16/2015 DATED 19-06-2019 OF ADDITIONAL DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY , NORTH PARAVUR** **AGAINST THE ORDER/JUDGMENT IN RCP 3/2014 OF RENT CONTROL COURT/MUNSIFF COURT, PERUMBAVOOR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT IN RCP:** **ANAS K.ASSAINAR, AGED 49 YEARS S/O K.A. ASSAINAR, XVII/939 A1, NATHEKKADU ARCADE, PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR P.O.ERNAKULAM DISTRICT, PIN-683 542, NOW RESIDING AT KARUVALLY HOUSE, MEPRATHUPADY, VENGOLA P.O.ERNAKULAM DISTRICT, PIN-683 556.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.N.R.SANGEETHARAJ SRI.VINOD.S.PILLAI KUM.GAYATHRI MURALEEDHARAN SMT.SREELAKSHMI R.** ## **RESPONDENT/RESPONDENT/PETITIONER IN RPC:** **N.A.KUNJUMUHAMMED AGED 48 YEARS S/O ABOOBACKER, NATHEKKADU HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, PATTIMATTOM P.O.ERNAKULAM DISTRICT, PIN-683 562.** **R1 BY ADV. SRI.P.B.KRISHNAN R1 BY ADV. SRI.P.B.SUBRAMANYAN R1 BY ADV. SRI.SABU GEORGE R1 BY ADV. SMT.B.ANUSREE R1 BY ADV. SRI.MANU VYASAN PETER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10.12.2019, ALONG WITH RCRev..436/2019, RCRev..442/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No.435 OF 2019 & Con. Cases 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** **RCRev..No.436 OF 2019** **AGAINST THE ORDER/JUDGMENT IN RCA 10/2015 DATED 19-06-2019 OF ADDITIONAL DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY , NORTH PARAVUR AGAINST THE ORDER/JUDGMENT IN RCP 11/2014 OF RENT CONTROL COURT/MUNSIFF COURT, PERUMBAVOOR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT IN RCP:** **M.A.AJEEB, AGED 40 YEARS S/O M.S. ABDUL RAHIMAN, XVIII/939 A, 26, NEW SELECTION FOOT WEARS, NATHEKKADU ARCADE, PERUMBAVOOR KARA, PERUMBAVOOR P.O., ERNAKULAM DISTRICT, PIN - 683 542, NOW RESIDING AT MANAKKAPARAMBIL HOUSE, THAIKKATTUKARA P.O., ALUVA, ERNAKULAM DISTRICT, PIN - 683 106.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.N.R.SANGEETHARAJ SRI.VINOD.S.PILLAI KUM.GAYATHRI MURALEEDHARAN SMT.SREELAKSHMI R.** RCRev..No.435 OF 2019 & Con. Cases 3 ## **RESPONDENT/RESPONDENT/PETITIONER IN RPC:** **N.A.KHADER PILLAI, AGED 52 YEARS S/O ABOOBACKER, NATHEKKADU HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, PATTIMATTOM P.O., ERNAKULAM DISTRICT, PIN - 683 562.** **R1 BY ADV. SRI.P.B.KRISHNAN R1 BY ADV. SRI.P.B.SUBRAMANYAN R1 BY ADV. SRI.SABU GEORGE R1 BY ADV. SMT.B.ANUSREE R1 BY ADV. SRI.MANU VYASAN PETER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10.12.2019, ALONG WITH RCRev..435/2019, RCRev..442/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No.435 OF 2019 & Con. Cases 4 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** **RCRev..No.442 OF 2019** **AGAINST THE ORDER/JUDGMENT DATED 19.06.2019 IN RCA 17/2015 OF ADDITIONAL DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY , NORTH PARAVUR AGAINST THE ORDER/JUDGMENT IN RCP 5/2014 OF RENT CONTROL COURT/ MUNSIFF COURT, NORTH PARAVUR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT IN RCP:** **V.M.HASSAN AGED 62 YEARS S/O. MAYINKUTTY, XVII/939 A2, NATHEKKADU ARCADE, PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR P.O., ERNAKULAM DISTRICT, PIN683 542, NOW RESIDING AT MADAPPILLY HOUSE, PURAYAR DESOM P.O., ALUVA, ERNAKULAM DISTRICT, PIN-683 102.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.N.R.SANGEETHARAJ SRI.VINOD.S.PILLAI KUM.GAYATHRI MURALEEDHARAN SMT.SREELAKSHMI R.** ## **RESPONDENT/RESPONDENT/PETITIONER IN RPC:** **N.A.KUNJUMUHAMMED AGED 48 YEARS S/O. ABOOBACKER, NATHEKKADU HOUSE, CHELAKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, PATTIMATTOM P.O., ERNAKULAM DISTRICT, PIN-683 562. R1 BY ADV. P.B.KRISHNAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10.12.2019, ALONG WITH RCRev..435/2019, RCRev..436/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No.435 OF 2019 & Con. Cases 5 ## **COMMON ORDER** **[ RCRev..435/2019, RCRev..436/2019, RCRev..442/2019 ] Dated this the 10th day of December 2019** ## **Harilal, J.** Since the matters in issue and the parties are same, all these rent control revision petitions are heard, considered and disposed of accordingly by this common order. 2. The legality, propriety and regularity of the concurrent findings of the Rent Control Court granting an order of eviction under 11 (3) of the Kerala Buildings (Lease & Rent Control) Act (for short, "the Act”) in RCP Nos.3, 11 and 5 of 2014 by the Rent Control Court, Perumbavoor and confirmed in RCA Nos.16, 10 and 17 of 2015 are challenged in these revision petitions. 3. All the aforesaid rent control petitions were filed under Section 11 (3) of the Act, on the ground that the petitioner/landlord bonafide needs the petition schedule buildings for starting a super market. The rent from the tenanted buildings is not sufficient for the livelihood of his family. He has RCRev..No.435 OF 2019 & Con. Cases 6 no other building of his own to start the proposed business; whereas several other buildings are available in the locality for shifting the business of the respondents from the tenanted premises. 4. The respondents resisted the claim for eviction on bonafide need, contending that the need projected in the petition is not bonafide and it is only a ruse for eviction. According to them, the petitioner has other sources of income and there is no need to start a new business. He is getting rent from more than ten tenanted buildings. The tenants are depending mainly on the income derived from the business in the respective tenanted premises and no other buildings are available in the locality to shift their business from the present tenanted premises and thereby they are entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. 5. Both parties adduced evidence on the aforesaid rival pleadings and after considering the evidence on record, the courts below concurrently found that the need projected is bonafide and the respondents are not entitled to get protection under the second proviso to Section 11 (3) of the Act and the bonafides of the claim for eviction is not hit by the first proviso RCRev..No.435 OF 2019 & Con. Cases 7 to Section 11(3) of the Act. The aforesaid findings have come up for consideration under Section 20 of the Act. 6. Heard the learned counsel for the revision petitioners/tenants. 7. The sum and substance of the argument advanced by the learned counsel for the revision petitioners is that the bonafides of the need is negated by the inconsistency in the nature of the proposed business pleaded and proved in evidence. According to the learned counsel for the revision petitioners, in the reply notice and in the rent control petitions, the petitioner/landlord has pleaded that the tenanted premises are required for starting a super market. But, in the evidence in RCP No.11/2014, the petitioner/landlord has deposed that he has no intention to start the supermarket and he has an intention to start a shop of household articles and plastic items. Thus, the aforesaid inconsistency would show the lack of bonafides projected in all the Rent Control Petitions. This is the sole point raised in all these Revision Petitions. 8. This Court finds that interference under Section 20 of the Act, is confined to the examination of the legality, propriety and regularity of the findings of the courts below only and the RCRev..No.435 OF 2019 & Con. Cases 8 revisional court is not permitted to re-appreciate the entire factual findings, unless there is perversity in the appreciation of evidence. 9. Bearing the aforesaid proposition of law, we have examined the point highlighted by the learned counsel for the revision petitioners. It is true that going by the notice issued by the petitioner/landlord demanding the vacant possession of the tenanted premises in the Rent Control Petition, the petitioner/landlord has stated that he needs the petition schedule building for starting a supermarket. It is highlighted by the learned counsel for the revision petitioners that while deposing in RCP No.11/2014, the petitioner/landlord has stated that his intention is to start a shop of plastic items and household articles. 10. It is pertinent to note that he did not plead the particulars of the items which are intended to be sold in the proposed supermarket; but in his oral evidence he has stated that he intends to conduct sale of household articles and plastic items in the tenanted premises. In ordinarily parlance, supermarket is a large shop of various items of household articles. So one can start a supermarket of household articles RCRev..No.435 OF 2019 & Con. Cases 9 and plastic items only and there is nothing to disbelieve his intention. So there is no variation in pleadings and evidence. More clearly in evidence he has supplemented the particulars of the items which are intended to be sold in his proposed supermarket and they are household articles and plastic items. Thus, we find that his oral evidence is in conformity with pleadings and there is no variation in evidence from pleadings. 11. In the above analysis, we find that, even if the alleged variation in the deposition of the revision petitioners is admitted in its entirety and taken at its face value, the same will not affect the bonafides of the need. Hence, we reject the said contention raised by the learned counsel for the revision petitioners. 12. We have meticulously considered the findings, under the bonafide need and we find that the landlord was examined in evidence to prove the bonafides of the need and he has testified in accordance with the averments in the rent control petitions and nothing has been brought out to discredit his evidence. After examining the oral deposition of PW1, the landlord and PW2, his father, the courts below concurrently placed reliance on the oral testimony of PWs 1 and 2. We do not find any reason to take a different view, in the absence of any contra evidence. RCRev..No.435 OF 2019 & Con. Cases **==> picture [13 x 7] intentionally omitted <==** 13. Coming to the first proviso, the initial burden is on the tenant to prove that the landlord has other buildings of his own in his possession. But, in the instant case, no evidence has been adduced by the revision petitioners/tenants to prove the ownership and possession of any building under the petitioner/landlord. 14. Coming to the 2[nd] proviso, it is trite law that both limbs of the 2[nd] proviso are conjunctive and the burden of proof is on the tenant. But, no evidence has been adduced to prove the volume of income, which is being derived from the business in the tenanted premises. In **Shahul Hameed A. v. P.E. Abdu Razak [(2016) (5) KHC 820)]** , this Court held that the tenant who is hiding his income from the Rent Control Court is not entitled to get protection under the first limb of the II[nd] proviso to Section 11(3) of the Act. 15. Coming to the second limb of the second proviso, no evidence has been adduced by the revision petitioners/tenants to prove that no other buildings are available in the locality to shift their business from the tenanted premises, whereas, Ext.C1 commission report, which stands unchallenged, shows that, several other vacant buildings are available in the locality for RCRev..No.435 OF 2019 & Con. Cases **==> picture [13 x 7] intentionally omitted <==** shifting the business of the revision petitioners/tenants from the tenanted premises. Thus, the landlord has disproved the contention of the tenants that no other buildings are available in the locality. Therefore, the courts below are justified in finding that the tenants are not entitled to get protection under the second proviso to Section 11(3) of the Act. We do not find any kind of illegality, impropriety or irregularity in the concurrent findings of the courts below, whereby the order of eviction under Section 11(3) of Act has been passed against revision petitioners/ tenants. Hence all these rent control revision petitions will stand dismissed. 16. The learned counsel for the revision petitioners seeks time to vacate the tenanted premises. 17. Having regard to facts and circumstances of the case, the revision petitioners are given six months time from today to vacate the tenanted premises on the following conditions: - (i) The respondents in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order,expressing an unconditional undertaking that the petition schedule building will be vacated within six months, from today. RCRev..No.435 OF 2019 & Con. Cases 12 - (ii) The respondents/tenants shall deposit the entire arrears of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default. - (iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioners/landlords will be at liberty to proceed with the execution of the eviction order. These Rent Control Revision Petitions are dismissed accordingly. **Sd/K.HARILAL JUDGE** shg **Sd/C.S.DIAS JUDGE**