High Court of KeralaDivision Bench2017-11-16Revision petition dismissed; six months to vaca...

Famous Bakery Manjeri v. Mujee Rahman

Case / Petition Number:RCR.370/17

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
A. M. Babu
Judgment Date: 2017-11-16
Court Decision / Holding: The Revision Petition is dismissed. The High Court upheld the concurrent findings of the Rent Control Court and the Appellate Authority that the entrustment was a lease, that the need is bona fide, and that the second proviso to Section 11(3) does not protect the respondents. The petitioners are granted six months from the date of the order to vacate the petition schedule premises, with conditions: 1) affidavit of vacancy to be filed within two weeks; 2) arrears to be deposited within one month and rent to be paid thereafter; 3) failure to comply will result in automatic vacation of the stay. All pending interlocutory applications are closed.
Final Disposition: Revision petition dismissed; six months to vacate with conditions.

Parties to the Case

Appellants / Petitioners

Famous Bakery Manjeri
Famous Bakery Cool and Hot Bar

Respondents

Mujeeb Rahman

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri P. M. Rafiq

Case Synopsis & Summary

This Kerala High Court revision concerns eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The revision petitioners, Famous Bakery Manjeri and Famous Bakery Cool and Hot Bar (tenants), challenged eviction orders passed by the Rent Control Court and confirmed by the Rent Control Appellate Authority, which held the need for eviction to be bona fide and that the respondent tenant was not protected by the second proviso to Section 11(3). The key dispute centered on whether the entrustment between landlord and tenants was a lease or a licence; the landlords argued it was a licence, while the petitioners contended it was a lease. The courts below found the entrustment to be a lease, noting the transfer of rights for a period in consideration of monthly rent, and that the rent deed was not produced to support a licence claim. The respondents argued the landlord has other suitable buildings and that the petition schedule shop is not indispensable for the business. The Appellate Authority’s distinction between lease and licence, grounded in precedents Vimala v. Sankarankutty Nair, Devadas v. Calicut Corporation, Moideenkutty Haji v. Muhammadali, and Francis v. Sarada, was upheld by the High Court. The High Court dismissed the revision petition, upheld the bona fide need finding, and granted six months’ time to vacate with conditions including affidavit filing and arrears payment.

Provisions of Law Cited

Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965First proviso to Section 11(3)Second proviso to Section 11(3)

Legal Doctrines & Maxims

Bona fide is a state of mind (as applied to the petitioner's need)
Lease vs. Licence distinction (doctrine applied to entrustment)
Burden of proof under the second proviso to Section 11(3) lies on the tenant

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioners contended that the entrustment of the petition schedule shop room is a lease and that the alleged licence claim raised by the landlords is unfounded, especially in the absence of a rent deed. They asserted a bona fide need to operate a stationery and grocery business from the schedule premises and highlighted that the petition schedule premises are essential for the claimed business purposes. They argued that the landlord could not rely on the tenancy as a pretext to deny eviction and emphasized that the landlords failed to prove the first proviso’s condition (existence of other suitable vacant buildings) with credible evidence. The petitioners argued that the income from the tenancy justifies eviction only if the need is bona fide and supported by factual occupancy evidence; the absence of a rent deed should not automatically negate a lease classification given the surrounding oral testimony and the surrounding facts.

Contentions of Respondents

The respondent landlord contended that the entrustment was a licence, not a lease, and that the petitioner has access to other suitable buildings, including building Nos. 19/13 and 856/A&B, which were not disclosed in the petition. They argued suppression of ownership of alternative buildings and claimed that the petition schedule premises were not indispensable for the intended business. They urged that the burden of proof for first proviso relations lay with the claimant tenant to prove that other suitable premises existed and lay vacant, which the evidence failed to establish. They maintained that the second proviso to Section 11(3) should shield tenants if such alternative property exists; they asserted that the evidence did not establish the required conditions to deny protection under the provisos.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Vimala v. Sankarankutty Nair	2004 (2) KLT SN 57	Positive	Cited to distinguish lease from licence and support the lease finding.
Devadas v. Calicut Corporation	1996 (2) KLT 77	Positive	Cited as part of the lease-vs-licence analysis influencing the court’s conclusion.
Moideenkutty Haji v. Muhammadali	1987 (2) KLT SN 21	Positive	Used to inform the lease/licence distinction underlying the decision.
Francis v. Sarada	2004 (1) KLT 952	Positive	Cited in the same doctrinal framework for lease-vs-licence differentiation.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Famous Bakery Manjeri v. Mujee Rahman and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939** **RCRev..No. 370 of 2017 () --------------------------** **RCA 23/2015 of RENT CONTROL APPELLATE AUTHORITY, MANJERI RCP 31/2014 of RENT CONTROL COURT, MANJERI** ## **REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS:** **---------------------------------------------** **1. FAMOUS BAKERY MANJERI, PANDIKKAD ROAD, MANJERI, REPRESENTED BY ITS MANAGING PARTNER, MOHEMMED NIZAR, S/O. ABDUL RAHMAN, P.O. MANJERI, MANJERI AMSOM, MANJERI DESOM, NOW RESIDING AT VERKATT HOUSE, PONMALA AMSOM, CHAPPANANADI DESOM, TIRUR TALUK, MALAPPURAM DISTRICT.** **2. FAMOUS BAKERY COOL AND HOT BAR, MANJERI, MANJERI AMSOM, PANDIKKAD ROAD, REPRESENTED BY ITS MANAGING PARTNER, MOHEMMED NIZAR, S/O. ABDUL RAHMAN, P.O. MANJERI, MANJERI AMSOM, MANJERI DESOM, NOW RESIDING AT VERKATT HOUSE, PONMALA AMSOM, CHAPPANANADI DESOM, TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.M.RAFIQ** ## **RESPONDENT(S)/RESPONDENT/PETITIONER:** **-------------------------** **MUJEEB RAHMAN, S/O. CHULLIYIL MOHAMMAD, KARUVAMBRAM AMSOM, KARUVAMBRAM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT-676 123.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**okb**_ ## K.HARILAL & A.M.BABU, JJ. --------------------------R.C.R. No.370 of 2017 --------------------------Dated this the 16[th] day of November, 2017 ## O R D E R ## **Harilal, J.** The revision petitioners are the tenants against whom the Rent Control Court passed an order of eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). In appeal the Appellate Authority also confirmed the findings of the Rent Control Court and dismissed the Rent Control Petition. The concurrent finding of the courts below is that the need projected in the petition is bona fide and the respondent/tenant is not entitled to get protection under the second proviso to section 11(3) of the Act. It was also found concurrently that the Rent Control Petition is not hit by the first proviso to section 11(3) the Act. Thus, the legality and propriety of the concurrent findings of the RCR.370/17 **:2:** courts below under section 11(3) of the Act are challenged in this revision. 2. Heard the learned counsel for the petitioner. 3. It is the case of the petitioner that he bona fide needs the petition schedule building for running a stationery shop and a grocery shop. He has no other buildings of his own in his possession to start the aforesaid business. But several other vacant shop rooms are available in the locality to shift the business of the respondents from the petition schedule shop room. 4. The respondents resisted the said contention contending that the entrustment of the shop room between the petitioner and the respondents was under a licence agreement and not a lease. Therefore, the Rent Control Petition is not maintainable before the Rent Control Court. Further it is also contended that the petitioner is having a three-storied building bearing No.19/13 and 856/A&B and the said building is suitable for the proposed business and the petitioner has suppressed the ownership of the said RCR.370/17 **:3:** building in the Rent Control Petition. The respondents are in possession of seven rooms; but eviction was sought against four rooms only. The rooms which are sought to be evicted are having road frontage and the respondents cannot conduct their business, without the said four rooms. The respondents are mainly depending on the income derived from the tenanted premises. No other alternative buildings are available in the locality to shift his business from the tenanted premises. 5. On the aforesaid pleadings both parties adduced oral and documentary evidence and after evaluating the evidence on record the courts below concurrently held that the entrustment was under a lease arrangement and not a licence and the respondents failed to prove that shop room Nos.19/13 and 856/A&B are suitable and lying vacant. So also it was found that the need projected in the petition is bona fide and the respondents have failed to discharge the burden of proof under the second proviso to section 11(3) of the Act. RCR.370/17 **:4:** 6. Coming to the finding that the entrustment was under the lease, it could be seen that though, the respondents have raised such a contention that the entrustment was under a licence, the rent deed was not produced in evidence either by the petitioner or by the respondents. We are of the view that non-production of the rent deed, under which the respondents have raised a claim of licence, is fatal to such contention. But, the courts below have evaluated the nature of entrustment in the light of the oral testimony of the petitioner as PW1 and that of the respondents as RW1 and found that the entrustment was under a lease arrangement and the real intention of the parties was to make a lease arrangement and not a licence arrangement. It has come out in evidence that there was a transfer of right, to enjoy the premises, to the respondents, for certain time in consideration of the rent to be paid monthly. Thus, the interest transferred was a leasehold interest. Since the contention was raised by the respondents, it was incumbent upon the respondents to RCR.370/17 **:5:** prove the nature of entrustment. But no evidence was adduced in this respect except the oral testimony of RW1. However, the Appellate Authority rightly distinguished “lease” and “licence” in the light of the decisions in **Vimala v. Sankarankutty Nair** [2004 (2) KLT SN 57], **Devadas v. Calicut Corporation** [1996 (2) KLT 77], **Moideenkutty Haji v. Muhammadali** [1987 (2) KLT SN 21] and **Francis v. Sarada** [2004 (1) KLT 952] and arrived at a just and proper finding that the entrustment was under a lease arrangement and not under a licence arrangement. We do not find any kind of perversity in the aforesaid finding. Therefore, the said finding does not call for any interference under the revisional jurisdiction. 7. In order to prove the bona fides of the need the petitioner was examined as PW1 and he has testified the bona fides of his need. Bona fide is a state of mind and the petitioner himself has testified the same and offered himself for cross-examination. The courts below observed that nothing was brought out in evidence, during the cross- RCR.370/17 **:6:** examination, to doubt the bona fides of the need and thereby the petitioner has succeeded in proving the bona fides of the need. We do not find any reason to interfere with the aforesaid findings of the courts below. 8. The learned counsel for the petitioner pointed out that the courts below have failed to consider the evidence on record under the first proviso to section 11(3) of the Act. Going by the findings of the Appellate Authority, it could be seen that it is the specific case of the respondents that the petitioner has other buildings bearing Nos.19/3 and 856/A & B. In order to prove the ownership of the buildings, Exts.B1 and B2 are produced. But no evidence was adduced to prove that the said buildings were suitable and lying vacant at the time of filing the Rent Control Petition. In the absence of such evidence from the part of the respondent, the courts below are justified in finding that the respondents failed to discharge the burden of proof under the first proviso to section 11(3) of the Act. 9. It is trite law that the burden of proof under the RCR.370/17 **:7:** second proviso is also on the tenant. But in the instant case, the respondent has not adduced any independent evidence to accept his oral testimony that he is depending mainly on the income from the tenanted premises and no other suitable buildings are available in the locality. In the absence of evidence the courts below are justified in denying the protection under the second proviso to section 11(3) of the Act. We do not find any kind of illegality or impropriety in any of the findings whereby the courts below granted an order of eviction under section 11(3) of the Act. Hence this Rent Control Revision fails and it is dismissed accordingly. 10. At last, the learned counsel for the revision petitioners prayed for granting some time to surrender the vacant possession of the tenanted premises. Having regard to the entire facts and circumstances of the case, the revision petitioners are given six months' time from today to vacate the petition schedule building, on the following conditions. RCR.370/17 **:8:** (1). The revision petitioners 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 revision petitioners shall deposit entire arrears, if any, within one month from today, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay 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 respondent will be at liberty to proceed with the execution of the eviction order. All pending interlocutory applications will stand closed. K.HARILAL, Judge. **Sd/-** A.M.BABU, Judge. okb.