Dhanasekharan P.N. v. Moideenkutty and Mohammedkutty

**RCRev..No.57 OF 2020** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **RCRev..No.57 OF 2020** **AGAINST THE JUDGMENT IN RCA 23/2019 DATED 17-01-2020 OF ADDITIONAL DISTRICT COURT, TIRUR** ## **AGAINST THE ORDER IN RCP 45/2017 OF MUNSIFF MAGISTRATE COURT,PONNANI** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **DHANASEKHARAN P.N. AGED 61 YEARS S/O. NARAYANAN, PANAKKIL HOUSE, DHANYA FRUITS, PONNANI ROAD, EDAPPAL.P.O., MALAPPURAM DISTRICT BY ADV. SRI.C.M.MOHAMMED IQUABAL** ## **RESPONDENTS/RESPONDENTS/PETITIONER:** **1 MOIDEENKUTTY, AGED 49 YEARS S/I. LATE ASSAINAR HAJI, KUNNUMPADATHU HOUSE, CHEKKODU DESOM, KUMARANELLOR AMSOM, ANAKKARA P.O., PATTAMBI TALUK, PALAKAD DISTRICT,PIN-679 551 2 MOHAMMEDKUTTY AGED 52 YEARS S/O. LATE ASSAINAR HAJI, KUNNUMPADATHU HOUSE, CHEKKODU DESOM, KUMARANELLOR AMSOM, ANAKKARA P.O., PATTAMBI TALUK, PALAKAD DISTRICT,PIN-679 551. R1 BY ADV. SRI.SANTHEEP ANKARATH** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.57 OF 2020** **2** ## **ORDER** ## **Dias, J.** The revision petitioner was the appellant in RCA No.23/2019 on the file of the Rent Control Appellate Authority (in short “Appellate Authority”), Tirur. The respondents in this revision petition were the respondents in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Ponnani, in RCP No.45/2017. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition ( RCP) as 'petitioners' and 'respondent'. 3. The petitioners had filed the RCP against the respondent, inter alia, pleading as follows: The petition schedule building (for brevity hereinafter referred to as 'shop room') and the land appurtenant thereto belong to the petitioners. **RCRev..No.57 OF 2020** **3** They purchased the property by virtue of document Nos.1690, 1691 and 1682 all of the year 2011 of the Sub Registry Office, Edappal. The shop room was taken on lease by the respondent as per agreement dated 4.5.2011, executed between him and the petitioners for the purpose of conducting a fruit stall for a daily rent of Rs.32/-. The shop room is situated in a commercially important locality. The shop room is situated in a building complex which is quite old, and that is not suitable for modern age business. The petitioners have other vacant land adjoining the building complex, wherein they intend to construct a shopping mall, with modern facilities including sufficient car parking. They have obtained plan and permit from the Edappal Grama Panchayat and the construction work is in progress. The petitioners who are doing business abroad. They have the financial capacity to reconstruct a big **RCRev..No.57 OF 2020** **4** shopping mall. The petitioners proposed to return to India for good· The son of the 1[st] petitioner is pursuing his MBA in Malaysia and he is dependent on the petitioners. The respondent has other source of livelihood and he is not depending on the income derived from the shop room . There are numerous vacant shop rooms available in the locality for the respondent to shift his business. The petitioners are ready to induct the respondent on the ground floor of the shopping mall after fixation of a fair rent. Although the petitioners issued a lawyer notice, the respondent has not responded positively. He has issued a reply notice raising all untenable contentions. Hence the RCP. 4. The respondent filed a written objection, inter alia, denying the assertions in the RCP. According to the respondent, the need projected by the petitioners is not bona fide. The petitioners only attempt is to oust the respondent from the **RCRev..No.57 OF 2020** **5** building. Section 11(3) of the the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'Act') has been incorporated in the petition with a sinister design. The petitioners are legally bound to give the respondent the first option in the reconstructed shopping mall. The respondent is depending on the income derived from the business being conducted in the shop room. The respondent is in occupation of the shop room for the last 30 years, and that he is eking his livelihood from the business being conducted in the shop room. The RCP is silent regarding the total area available in the new shopping mall. The RCP has been filed only because the respondent did not accede to the demand of the petitioners for an exorbitant hike in the rent. The petitioners have already disconnected water supply and other amenities provided to the shop room. The petitioners are well settled in Gulf. The son of the **RCRev..No.57 OF 2020** **6** 1[st] petitioner has already started a business in Malaysia. There is no need for them to return to India and start a shopping mall. The petitioners have many other business establishments at Edappal and Padinjarangadi. The petitioners have no financial capacity to construct the shopping mall. Hence the RCP may be dismissed. 5. The petitioners had filed along with the above RCP filed two other RCPs i.e. RCP Nos.39/2017 and 44/2017, seeking to evict two other tenants in occupation of the shop rooms situated in the building complex. The Rent Control Court consolidated the three RCPs and jointly tried the same. 6. The 1[st] petitioner was examined as PW1 and Exts.A1 to A7 were marked through him. The commission report was marked as Ext.C1. Neither the respondent in this case nor the respondents in the connected case let in any evidence. The Rent **RCRev..No.57 OF 2020** **7** Control Court, after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the shop room under Section 11(4)(iv) of the Act. The respondent was directed to surrender vacant possession within one month from the date of order. 7. Aggrieved by the order passed by the Rent Control Court, the respondent preferred RCA No.23/2019 before the Appellate Authority. The respondent in RCP Nos.39 and 44 of 2017 also challenged the impugned order by preferring RCA Nos.21 and 22 of 2019 respectively before the Appellate Authority. The Appellate Authority consolidated the hearing of the above three appeals and by its common judgment dated 17.1.2020 dismissed the appeals confirming the order of eviction passed by the Rent Control Court. 8. It is challenging the judgment passed by the Appellate Authority in RCA No.23/2019 and the **RCRev..No.57 OF 2020** ## **8** order passed by the Rent Control Court in RCP No.45/2017 that this Rent Control Revision is filed. 9. Heard Sri.C.M.Mohammed Iquabal, the learned counsel for the revision petitioner. 10. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the shop room under Section 11(4) (iv)of the Act. According to him, the courts below have failed to appreciate the fact the validity of the building plan and permit that were produced and marked as Exts.A6 and A6(a) have already lapsed. Even though Ext.A7 revised building plan was issued by the Grama Panchayat, the same was not proved by the petitioners. According to him, the sole intention of the petitioners was to evict the respondent from the shop room and not to demolish and reconstruct the building complex as alleged in the RCP. The Appellate Authority has **RCRev..No.57 OF 2020** **9** fixed a time period of one year to reconstruct the building complex, which will cause grave prejudice to the revision petitioner because the revision petitioner does not have a suitable place to carry on his business during the period of reconstruction. Hence he prayed that the revision petition be allowed and the concurrent findings of the courts below be set aside. 11. The sole question that arises for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below ordering eviction of the respondent under Section 11 (4) (iv) of the Act. 12. It is trite law that this Court while exercising its revisional jurisdiction under Section 20 of the Act is not bound to re-appreciate the entire pleadings and evidence on record. This Court is only expected to examine the legality and **RCRev..No.57 OF 2020** **10** correctness of the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings as well as the oral testimony of PW1 and Exts.A1 to A7 on record. 13. The cardinal flaw in the defence set up by the respondent is that he has refused to mount the box and give any evidence to corroborate with the defence set up in the written objection **.** It was rudimentary for the respondent to mount the witness box and give evidence to prove his defence. In view of the reluctance/refusal of the respondent to adduce evidence any sort of oral or documentary evidence, the case of the petitioners has to be accepted in its entirety. 14. The Hon'ble Supreme Court in Vidhyadhar v. Mankikrao [AIR 1999 SC 1441] has declared that where a party refuses to mount the box, it gives rise to inference adverse to him. **RCRev..No.57 OF 2020** **11** 15. Drawing the above presumption of law under Section 114 of the Evidence Act, we are constrained to hold that adverse inference is to be drawn against the respondent, as he has refused to mount the box or produce any documentary evidence to prove the defence pleaded in the counter statement. On this sole ground, this revision petition is liable to be dismissed. 16. On a perusal of the pleadings and evidence on record, we find that the petitioners had filed 16 rent control petitions against the various tenants in occupation of the 16 shop rooms situated in the building complex. Other than for the three tenants, who filed the present RCPs and RCAs, all the other tenants have vacated the premises and handed over the vacant possession of the shop rooms to facilitate the petitioners to carry out the reconstruction work. 17. The 1[st] petitioner gave evidence as PW1. **RCRev..No.57 OF 2020** ## **12** He also marked Exts.A1 to A7. Exts.A6 and A6 (a) are the building plan and permit. Ext.A7 is the revised building plan issued by the Edappal Grama Panchayat. In addition to the same, Ext.C1 report of the Commissioner was also produced and marked in evidence. All the above documents, along with the oral testimony of PW1, and added by the reluctance of the respondent to mount the witness box, we find that the petitioners have proved the bona fide need projected by them that they need vacant possession of the shop room to reconstruct the building complex. The petitioners have satisfactorily proved that the proposed project is not a pretext for eviction. 18. Ext.C1 report proves that the building complex is over 30 years of age. It is in a dilapidated condition. The shutters of the shop rooms in the complex are all damaged. There are heaps of dusts and waste materials in the up-stair **RCRev..No.57 OF 2020** ## **13** portion of the building complex. The building complex is in the heart of Edappal Town, where numerous buildings have spread in the immediate past. It is also reported that the proposed shopping mall is to be constructed as per Ext.A6 plan. The entrance of the proposed shopping mall is through the old building. Hence the old building complex wherein the petition schedule shop rooms is situated has to be demolished. Thus, it is proved by Ext.C1 report that the need projected by the petitioners is bona fide. 19. It is also proved by the petitioners that they have the means to reconstruct the shopping mall. Undisputedly, the petitioners are employed in Gulf. The 1[st] petitioner's son is doing business in Malaysia. He is the one who proposes to carry out the construction. Although the learned counsel for the revision petitioner contended that Ext.A6 plan had lapsed on 7.1.2017, it is on record that as per **RCRev..No.57 OF 2020** ## **14** Ext.A7, a revised building plan has been issued by the statutory authority. 20. The contention of the learned counsel for the revision petitioner that the Appellate Authority was precluded from fixing the time frame to reconstruct the building complex, as the Rent Control Court did not fix any time frame is untenable. Even though the Rent Control Court had omitted to fix a time frame within which the reconstruction work had to be completed, as provided under the proviso to clause (iv) of subsection 4 of Section 11 of the Act, the Appellate Authority in the impugned judgment, as undertaken by the petitioners, has directed the petitioners to complete the reconstruction of the shopping mall within one year from the date of delivery of the shop rooms to the landlord. We are convinced that the said time frame fixed by the Appellate Authority is sufficient enough for carrying out the ## **RCRev..No.57 OF 2020** ## **15** construction work. The Appellate Authority has also secured the right of the revision petitioners by directing the petitioners to induct him in a reasonable space in the shopping mall on payment of fair rent. Thus, the said contention is also devoid of any merits. 21. In the totality of the facts and circumstances of the case, pleadings and evidence on record, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered eviction of the respondent under Sec.11(4)(iv) of the Act. We confirm the concurrent findings of the the Appellate Authority in RCA No.23/2019 and the Rent Control Court in RCP No.45/2017. Consequently, the rent control revision is devoid of any merits and is dismissed with an observation that the petitioners in the RCP shall complete the reconstruction work of the proposed building **16** ## **RCRev..No.57 OF 2020** complex ,within one year from the date of delivery of vacant possession of the shop rooms by the revision petitioner. The revision petitioner is entitled to a reasonable space in the reconstructed building on payment of fair rent. In the result, the rent control revision is dismissed. ma/09/03/2020 Sd/-K.HARILAL,JUDGE Sd/- C.S.DIAS, JUDGE /True copy/ P.S to Judge