K. Naushad v. Subir Puthukkudi Kuniharath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 17TH DAY OF SEPTEMBER 2018 / 26TH BHADRA, 1940** **RCRev..No. 265 of 2018** **AGAINST THE ORDER IN RCP 22/2013 OF THE RENT CONTROL COURT, KALPETTA DATED 20-06-2016** **AGAINST THE JUDGMENT IN RCA 15/2016 OF THE RENT CONTROL APPELLATE AUTHORITY, KALPETTA DATED 19-06-2018** ## **REVISION PETITIONER:** **K.NOUSHAD AGED 46, S/O. SAIDALAVI, BUSINESS, KANHIRATHUNGAL HOUSE,SAUDI BAZAR, KALPETTA AMSOM DESOM, VYTHIRI TALUK,WAYANAD.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENT:** **SUBIR PUTHUKKUDI KUNIHARATH** **S/O. LATE P.K ABDUL RAHIMAN, AGED 46, RESIDING AT SAMEENA MANZIL, KOTTAPPADY AMSOM AND DESOM, PUTHOORVAYAL P.O, VYTHIRI TALUK, WAYANAD DISTRICT - 673 577.** **BY ADVS. SMT.ANU JACOB SRI.JACOB SEBASTIAN K.V. WINSTON** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Rcr265/2018&c.cases 2 ## ORDER ## K.Harilal, J. - 1.The revision petitioners are the tenants, who are confronting with an order of eviction passed concurrently against them, under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the “Act”) by the courts below. The parties are referred to as they are in the rent control petitions. - 2.According to the petitioner/landlord, he is presently working in Oman and he intends to come back to his native place at Wayanad and to settle down there and start a furniture and mattress business in the petition schedule shop rooms, five in number. Thus, an order of eviction, under section 11(3), was sought for, for own occupation. Further, Rcr265/2018&c.cases 3 according to the petitioner, he has no other building of his own in the same town, to start the said business and several other shop rooms are available in the locality to shift the business of the respondents from their tenanted premises. So also, the respondents are not mainly depending upon the income derived from the tenanted premises and several other vacant buildings are available in the locality for taking on rent. - 3.The respondents resisted the claim for eviction, contending that the need projected in the petition was not bona fide and it was a ruse for eviction only. According to the respondents, the petitioner is well settled abroad and he is affluent. His family members have no intention to return to India and the contention that the need is bona fide is false. Further, they contended that they are mainly depending upon the income derived from the petition schedule shop rooms and no other buildings are available in the locality Rcr265/2018&c.cases 4 to shift their business from the tenanted premises. - 4.On the aforesaid rival pleadings, the courts below concurrently found that the need projected was bona fide and the respondents are not entitled to get protection under the 2[nd] proviso to section 11(3) of the Act. The legality and propriety of the aforesaid findings of the courts below have come up in this revision before us. - 5.Heard the learned counsel for the respondents/tenants. - 6.The sum and substance of the argument advanced by the learned counsel for the respondents/tenants is that the courts below have failed to appreciate the evidence on record in its correct perspective. But, we are not inclined to re-appreciate the entire evidence on record, as the scope and extent of interference in this revision, filed under Rcr265/2018&c.cases 5 section 20, is confined to the legality, propriety and regularity of the findings of the courts below only, unless any perversity is found out in any of the findings. 7.We have meticulously gone through the concurrent findings of the courts below on bona fide need. It is contended by the respondents that the petitioner is well settled abroad and he is affluent. As rightly held by the courts below, we are of the opinion that the employment abroad or the affluency in life and assets are not factors, which would negate the claim for eviction, under section 11(3) of the Act. This court in Raveendran M.N. and another v. V.V.Sivaprasad [2017 (5) KHC 240] considered the question whether the employment abroad is a factor, which would negate the claim for eviction and held as given below. “It is a matter of fact that generally, an employment abroad, particularly in Gulf, is always Rcr265/2018&c.cases 6 under the shadow of insecurity. When he is at the threat of termination abruptly, he may be apprehensive of his future, after returning to India. Such apprehension must be too much painful, if his children are at tender age and students. Similarly, a Non Resident Indian, who had spent a considerable time abroad, in his life, may be desirous of living along with his family and seeking a new avocation for livelihood in his place of residence. Such a desire cannot be said to be whimsical or fanciful. If a landlord wishes to live comfortably along with his wife and children in his native place, by doing some business in the tenanted building, neither the tenant nor the Court can compel him to squeeze himself and continue there. In such circumstances, a landlord, who lad let out his shop room to others for rent, may be in need of occupying the building, after evicting the tenants, to start a Rcr265/2018&c.cases 7 new avocation. We are of the view that such a need can never be said to be one without bona fides or it is a ruse for eviction, if he succeeds in proving such a circumstance. In the light of the aforesaid decisions, a bona fide prospective need of a Non Resident Indian under S.11(3) of the Act cannot be rejected, at the threshold, on the ground that he is still working abroad and the need is not a current or urgent one. Therefore, the Appellate Court is justified in reversing the findings of the Rent Control Court rejecting the claim under S.11(3) of the Act on the finding that the need is not a bona fide one as it is not current or urgent. 8.That apart in Abdul Rub v. Jobby Tharian [2003 (3) KLT 733] the Supreme Court held that the law does not require that an impecunious landlord alone can think of starting an income earning activity in order Rcr265/2018&c.cases 8 that the need set up will pass through the test of bona fides. Law does not insist that a landlord having other sources of income shall not carry on other income earning activity or venture to start a new trade or business. What is relevant is only the question whether the need put forward is bona fide. It is neither for the courts nor for the opposite party to examine whether there is proper exercise of wisdom by the landlord in choosing one avocation of life or other, for earning income. - 9.In the light of the aforesaid decision, we find that the challenge, against the bona fides of the need, is unsustainable and there is no illegality or impropriety in the findings that the need projected in the petition is bona fide. We do not find any reason to interfere with the said finding. 10. As regards the 1[st] proviso, it is contended that the petitioner has the upstair Rcr265/2018&c.cases 9 portion of the same building in his possession to start the proposed business. But, going by the impugned order in the rent control petitions, it could be seen that the petitioner has specifically contended that the upstair portion is also required for his proposed business, to use the same as a godown for the proposed business on the ground floor. Thus, he had given special reasons in his evidence for not occupying the first floor for the proposed business. But, on the other hand, no evidence had been adduced by the respondents, to prove that the petitioner has any other vacant buildings of his own, to start the proposed business. Therefore, the courts below are justified in finding that the claim for eviction is not hit by the 1[st] proviso to section 11(3) of the Act. 11. According to the 2[nd] proviso, it is needless to say, both limbs of the 2[nd] proviso are conjunctive and the burden of proof is on Rcr265/2018&c.cases 10 the tenants. But, none of the respondents have chosen to enter into the witness box, so as to claim protection, under the 2[nd] proviso to section 11(3) of the Act and offer themselves, for cross-examination. The absence of evidence is fatal to the claim of protection under the 2[nd] proviso. In Shahul Hameed A. v. P.E.Abdu Razak [2016 (5) KHC 820] this court held that the tenant, who is hiding his income, is not entitled to get protection under the 1[st] limb of the 2[nd] proviso. Though the respondents have not taken any steps to prove the non-availability of other vacant buildings in the locality, the petitioner has given sufficient evidence to prove the availability of other alternative vacant buildings in the locality. Thus, the respondents have miserably failed to prove the requirement, under the 2[nd] proviso to section 11(3) of the Act. 12. We further find that the courts below have rightly appreciated the evidence on Rcr265/2018&c.cases 11 record in its correct perspective and granted an order of eviction, under section 11(3) of the Act. We do not find any reason to interfere with the aforesaid finding. 13. But further, we find that, in RCR 271/2018, which arose from RCP 16/2013, the courts below have failed to consider the question, whether the denial of title over a portion of the petition schedule shop room, which is described as 'charth', attached to building, having Door No.13/819(1) of Kalpetta Municipality, is bona fide or not. 14. In paragraph 8 of the rent control petition, the petitioner has specifically claimed title and possession over room, bearing No.XIII/819(4), which is in the possession of the respondents. According to the petitioner, eviction is sought for, for providing an access to the hall, by demolishing the 'thatched' portion at the northern side of the said building, which Rcr265/2018&c.cases 12 forms part of the petition schedule room and by providing a door to the hall from that side. If the 'charth' portion of the building is demolished, space thereof could be used as a passage leading to the well and the hall forming part of the building. 15. In paragraphs 7 and 11 of the counter statement, the respective tenant has disputed the petitioner's title and possession over the thatched shed, attached to building No.XIII/819(4) of Kalpetta Muncipality. The tenants further contend that on the northern side of the tenanted room is the land, forming part of the property, purchased by them and three others, vide Deed No.3533/2012. The aforesaid land, which lies on the northern side of the tenanted premises, is used as passage to reach the remaining portions of the land belonging to the respondents and three others, covered by the aforesaid sale deed. The petitioner has mistakenly included the said area, over which Rcr265/2018&c.cases 13 the respondents are the co-owners, and used the area as a passage as mentioned above, by stating the same as a thatched portion. 16. But, going by the order passed by the Rent Control Court and the judgment by the Appellate Authority, we find that neither the Rent Control Court nor the Appellate Authority has raised a proper issue, whether the denial of title over the thatched portion is bona fide or not and no enquiry was conducted in that respect. Thus, the aforesaid issue stands unaddressed. 17. In the above view, we find that the aforesaid issue requires consideration by the Rent Control Court, after framing a proper issue, in the light of paragraph 8 of the rent control petition and paragraphs 7 and 11 of the counter filed by the respondent in RCP 16/2013. 18. Therefore, the claim for eviction of the Rcr265/2018&c.cases 14 petition schedule building, other than the said thatched portion, would stand confirmed, under section 11(3) of the Act and the findings, with respect to the thatched portion alone, is set aside and the said issue, under section 11(1) of the Act would stand referred to the Rent Control Court, for fresh consideration. The respondent/tenant in RCP 16/2013 shall put the petitioner/landlord in possession of the petition scheduled building, except the thatched portion. The Rent Control Court shall pass an order afresh, after framing proper issue and conducting enquiry on the said issue, under section 11(1) of the Act. The parties are at liberty to adduce further evidence. The Order shall be passed afresh by the Rent Control Court, within a period of three months from the date of receipt of a copy of this order. The respondents/tenants in all the rent control revisions are given six months' time, to vacate the tenanted premises, and the petition schedule building, Rcr265/2018&c.cases 15 except the thatched portion in RCP No.16/2013 on the following conditions. (1) The revision petitioners/tenants 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 they will vacate the petition schedule shop room within six months from today. (2) The revision petitioners/tenants 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 respondent/landlord will be at liberty to proceed with the execution of the eviction order. 19. The rent control revisions, RCR Nos.265, 266, 267 & 269/2018 are dismissed. RCR Rcr265/2018&c.cases 16 271/2018 is allowed in part and remanded to the Rent Control Court, for further enquiry. All the pending interlocutory applications will stand closed. Sd/- K.Harilal, Judge Sd/Annie John, Judge sl. /true copy/ P.S. To Judge