ELENGAROTT SALEEM v. MOLLOTH MOOSA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 3RD DAY OF NOVEMBER 2017/12TH KARTHIKA, 1939 RCRev..No. 87 of 2016 ------------------------RCA 159/2012 of RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT COURT, VATAKARA DATED 19-12-2015 RCP 9/2012 of RENT CONTROLLER/MUNSIFF, NADAPURAM DATED 24-09-2012 PETITIONER IN RCR/APPELLANT IN RCA/RESPONDENT IN RCP : ---------------------------------------------------------------------------------------------- ELENGAROTT SALEEM, AGED 40, S/O. AMMED HAJI, BUSINESS, KAYAKKODY AMSOM, AKKAL DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT-673 513. BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL) ## RESPONDENT IN RCR/RESPONDENT IN RCA/PETITIONER IN RCP ---------------------------------------------------------------------------------------------- MOLLOTH MOOSA S/O. KUNHABDULLA, BUSINESS, KUMMANKODE AMSOM, NADAPURAM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT-673 504. ## BY SMT..MEENA.A. (CAVEATOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R.87 of 2016 - - - - - - - - - - - - - - - - Dated : 3[rd] November, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## Harilal, J. 1.This revision petition has been filed by the tenant challenging the legality and propriety of the concurrent findings of the courts below under Section 11(2)(b), 11 (4)(iii) and (v) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act'). It is the case of the petitioner under Section 11(2)(b) that the rent was in arrear from January, 2010 onwards. The respondent contended that he had paid Rs.43,000/- as loan to the petitioner and the same was agreed to be adjusted towards the rent arrears. That apart, he has deposited Rs.1,00,000/- as security with the petitioner and he spent Rs.50,000/- for maintenance for the building. After considering the rival pleas and the evidence on record under Section 11(2)(b), the courts below concurrently found that the **RCR.87/2016** **==> picture [7 x 9] intentionally omitted <==** burden of proving payment of rent is on the respondent and the respondent has not discharged the burden of proof by producing sufficient evidence to prove the payment of rent from January, 2010 onwards. - 2.Going by the impugned judgment it is seen that even though the respondent has contended that he had given Rs.43,000/- as loan to the petitioner and Rs.1,00,000/- as security, no evidence has been produced to prove the said contention. So also no evidence was forthcoming to prove that he had spent more than Rs.50,000/- for maintenance. Thus, in the absence of evidence, the courts below are justified in finding that the respondent is liable to be evicted under Section 11(2)(b) of the Act subject to Section 11(2)(c). We do not find any kind of illegality or impropriety in this respect. - 3.Coming to the claim for eviction under Section 11(3), it is a case of the petitioner that he 3 ## **RCR.87/2016** has been working as a helper in a juice shop in a middle east country and he is getting only a monthly remuneration of Rs.10,000/- only. His wife is not employed and she is staying in the house with two school going children. His income from the employment abroad is not sufficient to meet the living expenses of his family. So also his employment abroad is not safe or secured. In the above circumstances, he is in bona fide need of the petition schedule building to start a textile business for himself and his wife. - 4.Heard the learned counsel for the petitioner and the respondent. - 5.The revision petitioner/respondent contended that the need projected in the petition is not bona fide and it is a pretext for eviction only. According to him, the petitioner is a man of wealth and both movable and immovable assets. The petitioner is in possession of other vacant buildings to start the business. He is depending **RCR.87/2016** **==> picture [7 x 9] intentionally omitted <==** on the income derived from the tenanted premises and no alternative buildings are available in the locality to shift his business from the tenanted premises. After considering the evidence on record the courts below concurrently found that the need projected in the petition is bona fide and the respondent is not entitled to get protection under the 2[nd] proviso to Section 11(3). So also it was found that the respondent failed to discharge the burden of proof under the 1[st] proviso to Section 11(3) also. 6.Going by the findings with respect to Section 11 (3), it is seen that in order to prove the bona fides of the need, the wife of the petitioner was examined as PW1. She has testified as to bona fides of the need and offered herself for cross-examination. After evaluating the oral testimony of PW1, the courts below concurrently found that PW1 has succeeded the test of bona fides and nothing has been brought out to discredit the evidence of PW1 in cross- **RCR.87/2016** 5 examination. Thus the courts below have concurrently placed reliance on the evidence of PW1. As rightly found by the courts below, the law does not think that impecunious landlord alone can think of starting an income earning activity in order that the need set up will prove the test of bona fides. So also law does not insist that landlord having other sources of income shall not carry on other income earning activity or venture to start a new trade or business (Abdul Rub v. Jobby Tharian (2003 (2) KLJ 1035). As rightly found by the courts below a tenant cannot dictate or it is not the tenant who is to say that the landlord should be satisfied with the job which he is doing now. Even if the landlord is a man of wealth and assets he may be desirous of starting a new business to augment his existing income. The above view is supported by the decision f this Court in Sameera v. M.C.Mammootty (2013 (4) KHC 826). ## **RCR.87/2016** **==> picture [7 x 9] intentionally omitted <==** - 7.In the above view, the courts below are justified in granting an order of eviction under Section 11(3) and we do not find any kind of illegality and impropriety in any of the aforesaid findings. 8.Coming to the claim under Section 11(4)(3), it has come out in evidence that the respondent himself admitted that he is in possession of another building in the same Panchayat and he has been conducting business in that building. It is his case in cross-examination that he is using the petition schedule premises as a godown of the business which is conducted in the other building bearing No.XVIII/467 and XVIII/468. Thus, the acquisition of other building subsequent to the commencement of tenancy is not disputed. Then the burden is on the respondent to give reason for not occupying that building for the existing business as a godown. But the Commissioner has reported that no article was found in the tenanted premises at the time of **RCR.87/2016** **==> picture [7 x 9] intentionally omitted <==** inspection. Thus, the respondent has failed to prove that subsequently acquired building is not reasonably sufficient for his requirement. Hence, the courts below are justified in granting an order of eviction under Section 11 (4)(iii) of the Act also. We do not find any illegality or impropriety in any of the aforesaid findings. In the result, this revision is dismissed. - 9.Having regard to the entire facts and circumstances of the case, the tenant is given six months' time from today to vacate the petition schedule building, on the following conditions. (1). The tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today. (2). The tenant shall deposit the entire **RCR.87/2016** 8 arrears, if any, within one month, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. (3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. **K.HARILAL Judge** **Sd/-** **A.M.BABU Judge** Mrcs/3.11 True Copy P.S.To Judge