Hussain Kunhi v. Abdul Nazar

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940** **RCRev..No. 259 of 2017** **AGAINST THE JUDGMENT DATED 26-05-2017 IN RCA 16/2015 of THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT & SESSIONS JUDGE)KASARAGOD** **AGAINST THE ORDER DATED 13-11-2015 IN RCP 1/2015 of THE RENT CONTROLLER PRINCIPAL MUNSIFF), KASARAGOD** **REVISION PETITIONER/RESPONDENT/PETITIONER IN THE R.C.P:-** **--------------------------------------------------------** **HUSSAIN KUNHI, AGED 50 YEARS, S/O. MOHAMMED, SHEIK NOOR ROAD, NEAR SAKINA MANZIL, MADA, KUNJATHUR VILLAGE AND POST, MANJESHWAR TALUK AND KASARGODE DISTRICT, NOW WORKING AT BATTA OF RIYAD, KINGDOM OF SAUDI ARABIA.** **BY ADVS.SRI.K.I.MAYANKUTTY MATHER** ## **RESPONDENT/APPELLANT/RESPONDENT IN THE RCP:-** **--------------------------------------------** **ABDUL NAZAR AGED 54 YEARS, S/O. ANDRU, KIZHAKKEYIL HOUSE, KAMBLAKAD POST, KANIYAMBETTU VILLAGE, WAYANAD 673 121** **R1 BY ADVS. SRI.D.KRISHNA PRASAD SMT.MINI V.MENON SMT.S.SANTHY SRI.P.VISHNU PRASAD** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DST** ## **K. HARILAL & ANNIE JOHN,JJ.** **= = = = = = = = = = = = = = = = =** **R.C.R.No.259 of 2017(B)** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 11[th] day of July, 2018_ ## **O R D E R** ## **K. Harilal, J.** The revision petitioner is the appellant in R.C.A.No.16 of 2015 of the Rent Control Appellate Authority, Kasargode as well as the petitioner in R.C.P.No.1 of 2015 of the Rent Control Court, Kasargode. The revision petitioner filed the above Rent Control Petition against the respondent herein seeking an order of eviction under Section 11(3) and 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 _(hereinafter referred to as 'the Act')_ . 2. The respondent herein resisted the said application and after considering the evidence on record, the Rent Control Court passed an order of ## **R.C.R. No.259 of 2017(B)** ## **-: 2 :-** eviction under Section 11(3) of the Act and dismissed the claim under Section 11(4)(ii) of the Act. Aggrieved by the said order, the respondent herein filed the above appeal before the Appellate Authority challenging the order of eviction granted against him under Section 11(3) of the Act. The revision petitioner herein also filed a cross objection challenging the rejection of the claim for eviction under Section 11(4)(ii) of the Act. After considering the appeal and cross objection, the Appellate Authority reversed the findings under Section 11(3) of the Act and rejected the claim for eviction under Section 11(3) also and confirmed the order of eviction passed under Section 11(4)(ii) of the Act. Thus, the divergent findings of the courts below under Section 11(3) of the Act had come up in revision before us. ## **R.C.R. No.259 of 2017(B)** ## **-: 3 :-** 3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 4. Going by the impugned judgment passed by the Appellate Authority, it could be seen that both the Rent Control Court and the Appellate Authority found that the respondent herein is not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. The divergent findings of the courts below centers around the findings under bonafide need envisaged under Section 11(3) of the Act only. Therefore the sole question to be considered in this revision petition is whether there is any illegality or impropriety in the findings of the Appellate Authority that the need projected in the petition is not _bona fide_ . 5. It is the case of the revision petitioner ## **R.C.R. No.259 of 2017(B)** ## **-: 4 :-** that the revision petitioner _bona fide_ needs the petition schedule building for starting a fancy business for his daughter, who is a dependent on him for the petition schedule building. According to him, he has no other buildings of his own to start the proposed business. The respondent is not depending on the income derived from the business in the tenanted premises and several other vacant buildings are available in the locality to shift his business from the tenanted premises. On the other hand, the respondent contended that the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. According to the respondent, the daughter of the petitioner is employed in Gulf and drawing high salary. Further, he claimed that he is depending upon the income, which is being derived from the business carried on ## **R.C.R. No.259 of 2017(B)** ## **-: 5 :-** in the petition schedule building and no other alternative buildings are available in the locality. 6. In order to prove the _bona fides_ of the need, the petitioner was examined as PW1 and his daughter, for whose need the building was sought to be evicted was examined as PW2. The petitioner testified the _bona fides_ of the need in tune with the averments in the original petition and nothing has been brought out in cross examination to make his evidence unbelievable. 7. PW.2, the dependent also testified in tune with the _bona fide_ projected in the Rent Control Petition. She was also subjected to crossexamination. The Appellate Court reversed the findings of the Rent Control Court, on a finding that the evidence of PW.2 is unbelievable and it does not disclose the _bona fide_ of the need. So, we ## **R.C.R. No.259 of 2017(B)** ## **-: 6 :-** have meticulously gone through the evidence of PW.2. 8. In chief-examination, she testified that she intends to start a fancy business in the petition schedule shop room and there is every possibility for flourishing the said business. Since his father is abroad, she will get some imported fancy items from abroad for sale and she is expecting a good business in the petition schedule shop room. Further, she added that she also proposed to start a burka business along with fancy items. 9. In cross-examination, we find that she stood by the _bona fide_ need spoken by her in chiefexamination. In cross-examination, she deposed that she is not interested in Government employment and she is very much interested in conducting business. She intends to start burka business also along with ## **R.C.R. No.259 of 2017(B)** ## **-: 7 :-** fancy shop. It shows that she has no intention to abandon the fancy shop. She deposed that if the fancy business is not profitable, she will continue business with burka sale. Merely on the said deposition, it cannot be said that she does not intend to start fancy shop. What she deposed is her future plan only, if the fancy shop goes to loss. She deposed that she has no previous experience. Lack of previous experience is inconsequential, in view of the decisions of this Court in _**Kamble v. Abdul Rasul Moulali Kotkunde & Anr.**_ [(1999) 4 SCC 1] and _**Kuryan v. Usha Cherian**_ [2008(1) KLT 739]. In _**Kuryan**_ 's case (supra), this Court held that it is well settled that previous experience to conduct business is not necessary, as a precondition for seeking eviction on the ground of _bona fide_ need to conduct a new business and the lack of experience ## **R.C.R. No.259 of 2017(B)** ## **-: 8 :-** has no consequence at all, while testing the _bona fide_ of a need. Further, she deposed that she is depending upon her father for the petition schedule building only. In the re-examination, she further clarified that she intends to conduct fancy business, as the main business. 10. More importantly, being a Muslim unmarried educated lady, she unambiguously expressed her view that nowadays, Muslim ladies have no problem in conducting business. We are of the opinion that the above version of PW.2 would disclose the honesty and sincerity of the need projected in the Rent Control Petition. _Bona fide_ is a state of mind and the need must be honest, sincere and real. As rightly held by the Appellate Authority, the state of mind which would disclose the _bona fide_ can be found in the expression in the ## **R.C.R. No.259 of 2017(B)** ## **-: 9 :-** words spoken and deeds done. We are of the opinion that in the instant case, the _bona fide_ of the need is obviously manifested in the words spoken to her in cross-examination. The Rent Control Court rightly appreciated the evidence of PW.2 in its correct perspective, particularly, in view of the legal position well settled by this Court in various decisions. But, the Appellate Authority went wrong in appreciating the evidence and the findings are vitiated by perversity. 11. Consequently, we set aside findings of the Appellate Authority on _bona fides_ of the need and we confirm the findings of the Rent Control Court granting order of eviction under Section 11(3) of the Act. We have already held that the courts below concurrently found that the respondent is not entitled to get protection under the 2[nd] proviso to **R.C.R. No.259 of 2017(B)** ## **-: 10 :-** Section 11(3) of the Act. 12. In the above analysis, the impugned order passed by the Appellate Authority under Section 11(3) of the Act will stand set aside and the order of eviction passed by the Rent Control Court under Section 11(3) of the Act would stand restored. Hence, R.C.P. No.1 of 2015 of the Rent Control Court, Kasargode will stand allowed under Section 11(3) of the Act. 13. The learned counsel for the respondent sought for sometime to vacate the tenanted premises. According to the learned counsel for the respondent, the respondent is conducting a well established jewellery business and he wants sometime to find out another place to shift up the business from the tenanted premises. 14. Having regard to the nature of the ## **R.C.R. No.259 of 2017(B)** ## **-: 11 :-** business, the respondent is given six months time from today to vacate the tenanted premises on the following conditions: - _(i) The respondent 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._ - _(ii)The respondent/tenant shall deposit the entire arrear 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_ ## **R.C.R. No.259 of 2017(B)** ## **-: 12 :-** _stand automatically repealed and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order._ This Rent Control Revision will stand allowed accordingly. Sd/- ## **K. HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM/DST //True copy// P.A. To Judge