K. Hareendran v. P.P. Amjad & P.P. Nishad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** ## **RCRev..No.70 OF 2020** ## **AGAINST THE JUDGMENT IN RCA 74/2017 OF ADDITIONAL DISTRICT** **COURT - II, THALASSERY** **AGAINST THE ORDER IN RCP 27/2016 OF MUNSIF COURT, KUTHUPARAMBA** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **K.HAREENDRAN AGED 45 YEARS S/O.RAGHAVAN, TRADER, VELLUVA HOUSE, PATTANNUR AMSOM, KODOLIPRAM DESOM, P.O.PATTANNUR, PIN-670602. BY ADVS.** **SRI.K.V.PAVITHRAN** **SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** ## **RESPONDENT/RESPONDENTS/PETITIONERS:** **1 P.P.AMJAD S/O.HUSSAIN, EMPLOYED IN GULF SITHARAS KUTTIYATTOOR AMSOM, DESOM, P.O.KUTTIYATTOOR THROUGH P.A.HOLDER P.P.SAHEER, S/O.HUSSAIN, AGED 40 YEARS, SITHARAS, KUTTIYATTOOR AMSOM, DESOM, P.O.KUTTIYATTOOR, PIN670592.** **2 P.P.NISHAD, S/O.HUSSAIN, EMPLOYED IN GULF SITHARAS KUTTIYATTOOR AMSOM, DESOM, P.O.KUTTIYATTOOR THROUGH P.A.HOLDER P.P..SAHEER, S/O.HUSSAIN, AGED 40 YEARS, SITHARAS, KUTTIYATTOOR AMSOM, DESOM, P.O.KUTTIYATTOOR, PIN-670592.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **2** ## **RCRev.No.70 OF 2020** ## **ORDER** ## **C.S.DIAS, J.** The revision petitioner was the appellant in RCA No.74/2017 on the file of the Rent Control Appellate Authority (in short 'Appellate Authority'), Thalassery. 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, Kuthuparamba, in RCP No.27/2016. 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 seeking an order under Sections. 5, 11 (2) (b) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as **RCRev.No.70 OF 2020** **3** 'the Act'). 4. The case of the petitioners in brief was as follows: The petitioners are the absolute owners of the petition schedule shop rooms ( (for brevity, hereinafter referred to as 'shop rooms'), two in number, in a multi storied commercial building. The petitioners had purchased the shop rooms as per document No.2676/2014 of the Mattannur Sub Registry Office. The shop rooms are the stair case room and its adjoining room on the extreme northern side of the building complex. The shop rooms were given on lease to the respondent by the erstwhile landlord on 19.1.2013 for a monthly rent of Rs.1,800/-. The respondent had taken the shop rooms to conduct a lottery ticket agency. According to the petitioners, as per the covenants in the agreement, the respondent is liable to pay Rs.1,980/- as rent from August, 2014, thereafter at the rates of Rs.2,160 w.e.f January, 2015 and **RCRev.No.70 OF 2020** **4** Rs.2,340/- w.e.f. January, 2016 onwards. However, from August,2014, the respondent has committed default in payment of the rent. Despite issuing a demand notice, the respondent has not paid the rent. The petitioners had a further case that their brother Sri.P.P.Saheer, who was their power of attorney holder, was employed abroad and that he has returned to India for good. He is dependent on the petitioners. He has decided to start a ready-made garments shop in the shop rooms to eke his livelihood. The petitioners do not have any other vacant shop rooms in their possession. The respondent does not open the shop rooms regularly. The respondent has a plantation estate, including rubber, and that he is principally engaged in the agricultural work. There are several other vacant shop rooms available in the locality. The shop rooms are situated in Chalad town abutting Irikkur road. Due to inflation, the **RCRev.No.70 OF 2020** ## **5** money value has diminished. The petitioners are entitled for fixation of fair rent at the rate of Rs.5000/- from the date of petition till the date of surrender of the shop rooms. Hence the RCP. 5. The RCP was resisted by the respondent, who filed a counter statement, inter alia, pleading as follows: The respondent admitted the landlordtenant relationship. According to him, he had taken the shop rooms on a monthly rent at Rs.1000/- for conducting a stationery items shop with a cool drinks bar. He had given the erstwhile landlord, an amount of Rs.50,000/- as refundable security deposit. He has been paying rent to the power of attorney holder of the erstwhile landlord, as demanded by him. The maximum rent that is payable for the shop rooms is less than Rs.2,000/per month. 6. In the demand notice issued by the petitioners, they claimed an amount of Rs.10,000/- **RCRev.No.70 OF 2020** **6** as fair rent. However, in the RCP, the amount was limited to Rs.5,000/- per month. The bona fide need projected by the petitioners is only a ruse to evict the respondent from the shop rooms. The allegation that Sri.P.P.Saheer is dependent on the petitioners is false. He has other sources of income, and that he is not dependent on the petitioners, as alleged. The respondent has no other sources of income or business. He is depending on the income derived from the business conducted in the shop rooms for his livelihood. There are no other vacant shop rooms available in the locality to shift his business. He prayed the RCP be dismissed. 7. The power of attorney holder of the petitioners was examined as PW1. Another witness was also examined as PW2. Exts.A1 to A9 were marked through them. The respondent was examined as RW1. **RCRev.No.70 OF 2020** **7** 8. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the shop rooms under Secs.11(2)(b) and 11(3) of the Act. The Rent Control Court fixed the fair rent for the shop rooms at Rs.2,350/- per month, with an increase at 10% per annum. 9. Aggrieved by the impugned order passed by the Rent Control Court, the respondent preferred RCA No.74/2017 before the Appellate Authority. The petitioners also filed a cross-appeal on the ground that the fair rent fixed by the Rent Control Court was too low. 10. The Appellate Authority by the impugned judgment dated 13.08.2019 dismissed the appeal as well as the cross-appeal, confirming the order passed by the Rent Control Court. 11. It is challenging the judgment passed by the Appellate Authority in RCA No.74/2017 and the **8** ## **RCRev.No.70 OF 2020** order passed by the Rent Control Court in RCP No.27/2016, that this Rent Control Revision is filed. 12. Heard Sri.K.V.Pavithran, the learned counsel for the revision petitioner. 13. The learned counsel for the revision petitioner argued that the courts below have gone in eviction of the revision wrong ordering petitioner from the shop rooms under Secs.11(2)(b) and 11(3) of the Act. According to him, the need projected by the petitioners was not bona fide and was only a ruse to evict the respondent from the shop rooms. The rate of rent fixed by the courts below was not on the basis of any cogent material and is against Section 5 of the Act. The courts below have not given the respondent the benefit of the provisos to Sec.11 (3) of the Act. The learned counsel, therefore, prayed that the revision petition be allowed and the concurrent findings of **RCRev.No.70 OF 2020** **9** the courts below be set aside. 14. The question that emerges 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 by ordering eviction of the respondent under Secs.11(2)(b) and 11 (3) of the Act and fixing the fair rent at the rate of Rs.2350/- under Section 5 of the Act. 15. It is trite law that, this Court while exercising its revisional jurisdiction under Sec.20 of the Act is not expected to re-appreciate the entire pleadings and evidence on record. This Court is only supposed to examine the legality of the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings and evidence on record. 16. We shall first deal with the order of eviction passed under Section 11 (2)(b) of the Act. **RCRev.No.70 OF 2020** ## **10** We have found that the petitioners had issued Annexure-A5 notice to the respondent demanding him to pay the arrears of rent at the rate of 1800/per month. The respondent received Ext.A5 lawyer notice as seen from Ext.A6 acknowledgement card. He sent A7 reply notice. Undisputedly, despite issuing Ext.A7 reply notice, the respondent has not paid the admitted arrears of rent due from August 2014 to December, 2014, as sought in the demand notice. 17. The Hon'ble Supreme Court in Prakash Mahra v. K.L.Malhotra [ AIR (1989 ) SC 1652] has held that the arrears of rent claimed in the demand notice, under the proviso to Section 11(2) (b) of the Act, alone need be taken into account for the purpose of passing an order of eviction under Section 11 (2) (b) of the Act. Although the respondent was alerted regarding the arrears of rent, he failed to pay the admitted arrears of rent **RCRev.No.70 OF 2020** **11** due to the petitioners. The respondent while being examined as RW1 admitted that he has no documents in his possession to prove the plea of discharge. Assuming that Rs.1800/- was the rate of rent that was to be paid by the respondent to the petitioners, he admittedly did not pay the rent at the said rate for the period from August, 2014 to December, 2014. Thus, the courts below have rightly arrived at the conclusion that the respondent is liable to be evicted from the shop rooms under Section 11 (2) (b) of the Act. We confirm the said finding of the courts below on the said point. 18. The next point that arose was whether the need projected by the petitioners, for their brother and power of attorney holder was bona fide or not? The case of the petitioners was that their brother was depending on them. He needed the shop rooms to start a ready-made garments **12** ## **RCRev.No.70 OF 2020** business. It was their case that, Sri.P.P.Saheer, who was employed abroad has returned to India for good. He proposes to start the above business. Sri.P.P.Saheer was examined as PW1. He gave evidence in line with the averments in the RCP. He has proved that he is dependent on the respondents and that he has no avocation. Even though he was cross-examined, nothing was brought out to discredit his oral testimony. 19. It is settled law in a catena of decisions that it is not for the tenant to dictate the choice of the landlord in deciding the proposed business. 20. It is settled law in **Deep Chandra Juneja vs Lajwanti Kathuria [ AIR 2008 SC 3095]** that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the need put forward by the landlord is genuine or not, and is not a ruse for eviction. **RCRev.No.70 OF 2020** ## **13** 21. The Supreme Court in **Sarla Ahuja vs United India Insurance Company Ltd [(1998)** **8 SCC 119],** held that when a landlord asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide. 22. The courts below after appreciating the pleadings and evidence have come to the conclusion that the bona fide need projected by the petitioners is genuine. Accordingly, the courts below passed the order of eviction under Sec.11 (3) of the Act. We do not find any reason to take a contrary view from the finding arrived by the ## **RCRev.No.70 OF 2020** ## **14** courts below in the impugned judgment and order, in view of the clinching evidence that is on record. 23. In view of the fact that the courts below have passed an order of eviction, the question to be considered is whether the respondent is entitled to the benefit under the provisos to Section 11 (3) of the Act. 24. It is settled law that the entire burden of proof is on the tenant to substantiate that the RCP is hit by the first proviso to Sec.11(3) of the Act, and that the tenant is entitled to the benefit of the second proviso to Section 11(3) of the Act. 25. Other than for the omnibus plea in the written objection filed by the respondent, that he is entitled to the benefit of the provisos to Section 11 (3) of the Act, no document has been forthcoming from the respondent to prove his defence. The respondent has not proved that the petitioners have any other vacant shop room in their **RCRev.No.70 OF 2020** **15** ownership and possession to prove that the RCP is hit by the first proviso to Section 11 (3) of the Act. Similarly, the petitioner has not produced any document to substantiate that he is eking his livelihood from the income generated from the business in the shop room. On the other hand, the petitioners have proved that the respondent is an agriculturist by profession having an estate, including rubber plantation. It is on record that the respondent is having 62 cents of rubber plantation, and that he is managing the same. Though he has taken a plea that the property belongs to his mother, no document was produced by him, and the same was rightly disbelieved by the courts below. Thus, we are convinced that the respondent is not depending on the income generated from the business being conducted in the shop rooms. Further more, the respondent has also not taken steps to prove the vacancy ## **RCRev.No.70 OF 2020** ## **16** possession of the shop rooms available in the locality. Therefore, the plea of the petitioners that there are other suitable vacant shop rooms in the locality, has to be accepted. 26. In light of the above finding, we are of the opinion that the respondent is not entitled for protection under the provisos to Section 11 (3) of the Act. 27. Lastly we come to the question whether the fair rent fixed by the courts below at the rate of Rs.2350/- per month is fair and reasonable. 28. In addition to the evidence of PW1, PW2 was also examined and Ext.A8 rental agreement was marked through him. It was proved that the rate of rent in the locality for the shop room of similar nature is Rs.5000/- per month. However, as there was no evidence to compare the facilities between the room occupied by PW2 and the shop rooms in question, and also as the petitioners did **RCRev.No.70 OF 2020** **17** not mount the box and give evidence, the courts below arrived at the conclusion that Rs.2350/- per month with an escalation clause of 10% per annum is the reasonable fair rent for the shop rooms. The finding of fact by the courts below in the impugned judgment and order is found to be reasonable and just, in view of the evidence. We therefore confirm the order passed by the courts below under Section 5 of the Act. 29. In the totality of the facts and circumstances of the case, the pleadings and evidence, and after going through the order and judgment of the courts below, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered the eviction of the respondent under Secs.11(2)(b) and 11 (3) of the Act. We also found that the rate of fair rent fixed by the courts below at the rate of Rs.2350/- with an escalation clause of 10% per **18** ## **RCRev.No.70 OF 2020** annum, under Section 5 of the Act, to be reasonable and just, and in accordance with the parameters laid down by this Court in Edger Ferus v. Abraham Ittycheria [2004 (1) KLT 767] and Rajesh R.Kartha v. K.A Ismail [2015 (4) KHC 408]. Therefore, we confirm the concurrent findings of the Rent Control Court in RCP 27/2016 and the Appellate Authority in RCA No.74/2017 . 30. At the said point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the shop rooms. Taking into consideration the fact that the RCP was filed in the year 2016 and the Rent Control Appeal was filed in the year 2017, we feel that the revision petitioner has got more than sufficient time to vacate the building. However, considering the fact that the revision petitioner is carrying on a trade in the shop rooms, we feel that a reasonable time ## **RCRev.No.70 OF 2020** ## **19** period of six months can be be granted to the revision petitioner to find an alternate accommodation and shift his business. In the said circumstances, we grant the revision petitioner six months' time to vacate the shop rooms on the following conditions: (1) The revision petitioner/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 rooms within six months from today. (2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month 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, 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. **RCRev.No.70 OF 2020** **20** In the result, this revision petition is accordingly dismissed. Sd/- **K.HARILAL, JUDGE** **Sd/- C.S.DIAS, JUDGE** ma/19/3/2020