K. Moosa v. Muhammed Iqbal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944 RCREV. NO. 328 OF 2019** **AGAINST THE ORDER DATED 05.04.2019 IN RCA NO.52 OF 2017 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY,KOZHIKODE CONCURRING WITH THE COMMON ORDER IN RCP NO.51 OF 2015 DATED 25.02.2017 ON THE FILE OF THE RENT CONTROL COURT, KOYILANDY.** ## **REVISION PETITIONER/APPELLANT/1ST RESPONDENT:** K.MOOSA AGED 55 YEARS S/O. IMBICHYALI, LAB TECHNICIAN IN PERFECT MEDICAL CANTRE, KELOTH COTTAGE, NEAR CO-OPERATIVE HOSPITAL BUS STOP, ATHOLI, PIN-673315. BY ADVS. SANTHARAM.P SMT.REKHA ARAVIND SRI.PAUL P. ABRAHAM ## **RESPONDENT/RESPONDENT/PETITIONER:** 1 MUHAMMED IQBAL AGED 51 YEARS S/O. KUNHUTTY MASTER, BUSINESS, MELEPILATHOTTATHIL HOUSE, NANMINDA AMSOM, CHEEKILODE DESOM, PIN-673315, KOZHIKODE TALUK. 2 ADDL .R2. THAYYIL SUNAIL FAVAZ, AGED 30 YEARS, S/O LATE MUHAMMED IQBAL, RESIDING AT MELAPILATHOTTATHIL HOUSE, NANMINDA AMSAM, CHEEKILODE DESOM, KOZHIKODE, PIN-673315 R.C.R.No.328 of 2019 2 3 ADDL.R3. SUHARA,AGED 49 YEARS, W/O KUNHABDULLA HAJI, RESIDING AT THAYYIL HOUSE, NANMINDA AMSAM, CHEEKILODE DESOM, KOZHIKODE, PIN-673315 4 ADDL.R4. DR.ISHRATH RAIHANA, AGED 31 YEARS W/O DR. AFLAK.K.T., RESIDING AT THAYYIL HOUSE, NANMINDA AMSAM, CHEEKILODE DESOM, KOZHIKODE, PIN-673315. 5 ADDL.R5.THAYYIL JASER IQBAL, AGED 25 YEARS S/O LATE MUHAMMED IQUBAL, RESIDING AT MELAPILATHOTTATHIL HOUSE, NANMINDA AMSAM, CHEEKILODE DESOM, KOZHIKODE, PIN-673315. (ADDL. R2 TO R5, BEING THE LEGAL HEIRS OF DECEASED SOLE RESPONDENT, ARE IMPLEADED AS PER THE ORDER DATED 13/09/2021 IN IA.NO.1/2021 IN RCR.328/2019). BY ADVS. SRI.B.N.SHIVSANKAR SMT.ARCHANA HARIDAS K. THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.No.328 of 2019 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------R.C.R.No.328 of 2019** **------------------------------------------Dated this the 13[th] day of December, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This R.C.R under Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (the Act) has been filed against the order dated 05/04/2019 in R.C.A.No.52/2017 on the file of the Rent Control Appellate Authority (RCAA), Kozhikode, which appeal has been filed against the order dated 25/02/2017 in R.C.P.No.51/2015 on the file of the Rent Control Court (RCC), Koyilandy. The revision petitioner herein is the appellant in the appeal and the 1[st] respondent in the R.C.P. The respondent herein is the respondent in the appeal and the petitioner in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.51/2015 was filed by the original petitioner, Muhammed Iqbal, seeking eviction under Section 11(2)(b), 11(3) and 11(4)(i). In the R.C.P., it is alleged that the petition schedule room was let out to the respondent on 14/08/2000 for a monthly rent of ₹400/-. The rent was thereafter enhanced to ₹650/- per month. The rent has been paid only till December 2014. The rent from January 2015 is in arrears. For the last 30 years the petitioner has been working abroad and now he intends to settle at his native place. Therefore, he _bona fide_ needs the petition R.C.R.No.328 of 2019 4 schedule room to start a supermarket. There are no other suitable vacant rooms of the petitioner in his possession. The first respondent was initially conducting a laboratory in the name and style 'perfect medical centre' in the petition schedule room. Thereafter he shifted his business to another room situated nearby. Thereafter, without the knowledge or consent of the petitioner, the petition schedule room has been sublet to the 2[nd] respondent. Therefore, eviction was sought under Section 11(2) (b), 11(3) and 11(4)(i) of the Act. Section 11(4)(iii) is also mentioned in the first page of the R.C.P. However, there are no pleadings relating to the same in the R.C.P. 3. The 2[nd] respondent failed to appear though notice was served on him and hence he has been set ex-parte by the RCC. 4. The 1[st] respondent filed counter denying the allegations in the R.C.P. The rent fell into arrears only because the petitioner refused to accept the same. After taking the room on rent, the first respondent had started a laboratory in the name and style perfect medical centre on a temporary basis till he got a suitable room for conducting his business. When he got a suitable room, he shifted his business to the said room. Thereafter with the consent of the petitioner, he started a tea shop in the petition schedule room. This tea shop was being conducted by the first respondent along with his brother, Hamsa. The allegation of sub lease is incorrect. The 2[nd] respondent is only an employee of the 1[st] respondent. The need alleged is without any _bona fides_ and it is a mere ruse for eviction. 5. PW1 was examined and Exts.A1 to A7 were marked on the side of the R.C.R.No.328 of 2019 5 petitioner. RW1 was examined and Exts.B1 to B3 were marked on the side of the respondents. The reports of the advocate commissioner have been marked as Exts.C1 and C2. The RCC on an appreciation of the oral and documentary evidence and after hearing the parties, allowed the R.C.P. and ordered eviction under Section 11(2)(b), 11(3) and 11(4)(i) of the Act. R.C.A.No.52/2017 filed by the respondent has been dismissed confirming the order of the RCC. Aggrieved, the respondent has come up in revision against the concurrent findings of the RCC and RCAA. 6. The petitioner-landlord was reported to be no more and hence his legal heirs have been impleaded as additional respondents 2 to 5 in the R.C.R. 7. The only point that arises for consideration is whether the concurrent findings of the RCC and RCAA suffer from any illegality, irregularity or impropriety. 8. Heard Sri.Santharam, the learned counsel for the petitioner and Sri.B.N.Shivasankar, the learned counsel for the respondents. 9. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an appellate court. It is no doubt true that this Court sitting in revision cannot convert itself into an evidence collecting or fact finding court. The scope of interference by the revisional court is restricted to cases where the RCC or RCAA has relied on irrelevant consideration, ignored valuable items of evidence or applied wrong principles of law. A finding of fact recorded by the RCC or the RCAA, if perverse, or has been arrived at without consideration of the material evidence or such finding is based on no evidence or R.C.R.No.328 of 2019 6 misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, then it is open to correction, because it is not treated as a finding according to law. In such circumstances, the High Court in exercise of its revisional jurisdiction under the Act is entitled to set aside the impugned order as being not legal or proper. ( **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, AIR 2014 SC 3708** ) Keeping the aforesaid principle in mind, we will consider whether the findings of the RCC or the RCAA are in any way perverse or has been arrived at by misreading or mis-appreciating the evidence on record. 10. The fact that the rent is in arrears from January 2015 is admitted by the respondent. The case of the respondent is that the rent fell into arrears only because the petitioner refused to accept the same. If that be so, he should have resorted to sub-section (2) of Section 9 of the Act. Apparently the said course has not been adopted by the respondent. Therefore, he cannot be heard to contend that he is not at fault with. Both the RCC and RCAA have rightly concluded that the petitioner is entitled to an order of eviction under Section 11(2)(b). 11. Now coming to the ground under Section 11(3). In the R.C.P. the specific case alleged is that the petitioner wants to start a supermarket in the petition schedule room as well as in the adjoining rooms. This is the case stated in the proof affidavit filed in _lieu_ of chief examination also. Petitioner was examined as PW1. In his cross examination, he admitted that the petition schedule room is not suitable for R.C.R.No.328 of 2019 7 running a supermarket. In the cross examination, he developed a new case that he intends to do a business in mobile phones in the petition schedule room. He has no such case in the R.C.P. It has also come out in evidence that no steps have been taken by the petitioner to evict the tenants of the adjoining rooms. It is true that in the cross examination, he takes up a case that the tenants of the adjoining rooms have agreed to vacate the rooms. However, there is no such case also in the R.C.P. The case of the petitioner that the other tenants had agreed to vacate also appears to be doubtful because when the first respondent was examined as RW1, a suggestion is seen put to him in the cross examination that the petitioner is making attempts to get the adjoining rooms vacated, to which RW1 replied that he is unaware of such move. According to RW1, to his knowledge the petitioner has not demanded vacant possession of the adjacent rooms. Further, another suggestion made to RW1 is that the petitioner intends to start a mobile shop business till he gets vacant possession of the adjoining rooms, which suggestion was denied by RW1. Therefore, it can be seen that the petitioner has no consistent case relating to the business he intends to start or the room(s) in which he intends to start the business. It is no doubt true that the petitioner-landlord can decide to start a new business other than what is stated in the petition by giving cogent reasons. However, that is not the case here. As noticed earlier, in the R.C.P., as well as in the proof affidavit, the specific need is that he intends to start a supermarket in the petition schedule room along with the adjacent rooms. It is only in the cross examination he was developed a new case. Therefore, R.C.R.No.328 of 2019 8 the need put forward does not appear to be _bona fide_ . The RCC and the RCAA is seen to have clearly erred in appreciating the evidence regarding the _bona fides_ of the petitioner. Though the finding on the ground under Section 11(3) is concurrent, the same will have to be interfered with as the RCC and the RCAA have misread and mis-appreciated the evidence on record, resulting in an erroneous conclusion. 12. Now coming to the ground under Section 11(4)(i). The allegation of the petitioner that the first respondent has shifted his business to another room is admitted by the latter. It is also admitted that thereafter a tea shop was conducted in the petition schedule room. According to the petitioner, the petition schedule room was sub-let to the 2[nd] respondent and it was the 2[nd] respondent who was conducting a tea shop in the name and style 'Harichandana'. To establish the same, he relies on Ext.A2 lawyer notice issued to the first respondent in the address of his new room and to the 2[nd] respondent in the address of the tea shop in the petition schedule room. Both the 1[st] and the 2[nd] respondent accepted the notice sent to them in their respective address. The first respondent takes up a contention that the 2[nd] respondent is only his employee. However, no evidence has been let in to substantiate the same. When the petitioner has prima facie shown the 2[nd] respondent to be in possession of the tenanted premises, the burden shifted to the 1[st] respondent to disprove the same and explain the jural relationship with the second respondent. That has not been done by the 1[st] respondent. Therefore, the RCC as well as the RCAA have rightly appreciated the evidence and concluded that the ground under Section 11(4)(i) has been R.C.R.No.328 of 2019 9 established. We do not find any infirmity in the said finding. Hence, the finding under Section 11(4)(i) also needs to be confirmed. In the result, eviction allowed under Section 11(3) is set aside and eviction ordered under Section 11(2)(b) and 11(4)(i) of the Act is confirmed. The R.C.R. is dismissed with the aforesaid modification to the impugned judgment. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** **Sd/C.S.SUDHA JUDGE** Jms/14.12