Joseph Baby v. Muhammed Ashraf

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 2ND DAY OF APRIL 2014/12TH CHAITHRA, 1936 RCRev..No. 206 of 2012 () -------------------------AGAINST THE JUDGMENT IN RCA 26/2006 OF RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT (ADHOC)-II, MANJERI DATED 26.3.2012 AGAINST THE ORDER IN RCP 42/2005 OF RENT CONTROL COURT(MUNSIFF COURT), MANJERI DATED 13.10.2006 REVISION PETITIONER(S): RESPONDENT ----------------------------------- ------------------- JOSEPH BABY, AGED 58 YEARS NELLITHAN STORES, MALAPPURAM KUNNUMMAL MALAPPURAM AMSOM, KEEZHMURI DESOM, ERNAD TALUK. BY ADV. SRI.DEVAPRASANTH.P.J. RESPONDENT(S): ----------------------- MUHAMMED ASHRAF, AGED 48 YEARS S/O.OTTAKATH ABDULLA, CHENGOTTUR AMSOM, PONMALA DESOM TIRUR TALUK, PIN 675 685. R BY ADV. SRI.SAJU.S.A THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** -------------------------------------- R.C.R.No.206 of 2012 -------------------------------------Dated this the 2[nd] day of April, 2014 _**O R D E R**_ ## **K.T.Sankaran, J.** The tenant challenges the order under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act (hereinafter referred to as the 'Act'). Though the Rent Control Court dismissed the Rent Control Petition, the Appellate Authority allowed the same under Section 11(3) of the Act. 2. The petition schedule building was let out to the tenant by Hamsa, the father in law of the respondent herein, in the year 1997. Hamsa's right came to vest in his son in law, the respondent herein. He filed the Rent Control Petition under Section 11(3) of the Act putting forward a plea that the building is bonafide RCR 206/2012 2 required for him to conduct a fancy store. 3. The Rent Control Court dismissed the Rent Control Petition mainly on the following grounds : (i) The landlord is a very affluent man and he conducts several other businesses. (ii) The wife of the landlord has another building which was leased out to another person. (iii) The need put forward is to start a fancy store. There are several fancy stores in the locality and therefore, there would be no business prospects for the landlord if he conducts a fancy store. That itself shows that the claim is not bonafide. 4. The landlord was working abroad for several years. He came back to India before filing the Rent Control Petition. He stated that he came back to India permanently and he deposited his RCR 206/2012 3 Indian passport before court. That passport was lying in court for a period of more than five years. Later, it was released to the landlord. There is no case for the tenant that at the time when the Rent Control Petition was disposed of or thereafter, the landlord had left India. 5. On appeal by the landlord, the Appellate Authority reversed the order of the Rent Control Court and allowed the petition under Section 11(3) of the Act. The Appellate Authority held, relying on the Supreme Court judgment in **Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal (2005 (4) KLT 452 (SC))** , that the financial resources of the landlord is not a ground to reject his claim under Section 11(3) of the Act. In Sait Nagjee Purushotham & Company's case, the Supreme Court held thus : “It is always the prerogative of the landlord that if RCR 206/2012 4 he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.” 6. The Appellate Authority rightly held that the fact that the landlord's wife who was in possession of a room adjacent to the petition schedule building was let out to another tenant, is not a ground to reject the claim of the landlord. In **Jayraj vs. Thomas (2004 (2) KLT 991)** , a contention was taken that a building belonging to the wife of the landlord should be taken into account in considering the availability of the first proviso to Section 11(3) of the Act. The Division Bench held that since the property stands in the name of the wife of the landlord, presumption is that the RCR 206/2012 5 property belongs to her. The first proviso to Section 11(3) would not apply in a case where a landlord's wife acquires a premises and such acquisition would not fall within the expression “of his own” in the first proviso to Section 11(3). That there are several fancy stores in the locality is not a ground to hold that the need put forward by the landlord to start a fancy store in the petition schedule building is not bonafide. The presence of larger number of shops in which similar business is being carried on is not an indication of financial unviability of the business venture proposed by the landlord. The tenant cannot dictate as to what business the landlord should do or what business he should not do. Even if the business proposed to be run by the landlord is not profitable, that is not a ground to say that the claim of the landlord is not bonafide. 7. The Appellate Authority rightly held that the need put forward by the landlord is genuine and that the findings of the Rent RCR 206/2012 Control Court are unsustainable. 8. As far as the claim for the benefit of the second proviso to Section 11(3) of the Act is concerned, the tenant did not produce any document to prove his source of income. The burden of establishing that the tenant depends mainly on the income derived from the business conducted in the petition schedule building and that there are no other suitable buildings available in the locality, is on the tenant. The legal position in this regard is well settled. The tenant failed to discharge the burden of proof cast on him. The Appellate Authority rightly held that the tenant failed to prove the ingredients under the second proviso to Section 11(3) of the Act. The findings rendered by the Appellate Authority are findings of fact. The revisional court will not interfere with the finding of fact arrived at by the courts below, exercising its revisional RCR 206/2012 7 jurisdiction. There is no illegality, irregularity or impropriety in the judgment of the Appellate Authority. The Rent Control Revision is, therefore, liable to be dismissed. Accordingly, the Rent Control Revision is dismissed. **K.T.SANKARAN JUDGE** **M.L.JOSEPH FRANCIS JUDGE** csl