Karim v. Shamla and others (RCRev..No. 179 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** **RCRev..No. 179 of 2016** **AGAINST THE ORDER IN RCP 10/2005 of MUNSIFF COURT, KALPETTA DATED 28-02-2013** **AGAINST THE JUDGMENT IN RCA 11/2013 OF THE RENT CONTROL APPELLATE AUTHORITY, KALPETTA DATED 08-02-2016** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** ## **KARIM** **AGED 45 YEARS, S/O. KASIM, KANDILERI VEEDU, GUDALAI, KALPETTA AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD.** **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENTS/SUPPLEMENTAL APPELLANTS/LEGAL REPRESENTATIVES OF THE PETITIONER:** **1 SHAMLA AGED 56 YEARS, W/O. LATE IBRAHIM, KANDILERI VEEDU, KAIRALI NAGAR, KALPETTA AMSOM AND DESOM, VYTHIRI TALUK, KALPETTA, WAYANAD-673 121.** ## **2 SAJNA** **AGED 37 YEARS, D/O. LATE IBRAHIM, KANDILERI VEEDU, KAIRALI NAGAR, KALPETTA AMSOM AND DESOM, VYTHIRI TALUK, KALPETTA, WAYANAD-673 121.** - **3 SHAMJITH K.** **AGED 32 YEARS, S/O. LATE IBRAHIM, KANDILERI VEEDU, KAIRALI NAGAR,KALPETTA AMSOM AND DESOM, VYTHIRI TALUK, KALPETTA, WAYANAD-673 121.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN** RCR179/2016 2 **SRI.P.M.NEELAKANDAN SRI.SABU GEORGE** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCR179/2016 3 ## JUDGMENT ## K.Harilal, J. 1. The revision petitioner is the tenant and the respondents are the legal representatives of the original landlord. (The parties are referred to as in the rent control petition.) 2. The petitioner/original landlord filed RCP 10/2005 before the Rent Control Court, Kalpetta under section 11(2)(b), 11(3) and 11(4) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act), seeking an order of eviction against the respondent. The Rent Control Court, after considering the evidence on record and the objection raised by the respondent, dismissed the rent control petition. Feeling aggrieved, the landlord filed RCA RCR179/2016 4 11/2013 before the Rent Control Appellate Authority, Wayanad. After re-appreciating the evidence on record, the Appellate Authority reversed the order, dismissing the rent control petition and allowed the rent control petition, under section 11(3) only. Thus, the legality and propriety of the divergent findings of the courts below under section 11(3) of the Act have come up in revision before us. 3. According to the averments in the rent control petition, the petitioner requires the petition schedule shop room for himself and for his son, who is depending upon him for their livelihood by starting a hardware business. The respondent is a businessman having several other sources of income, including shops, rented buildings, agricultural land etc. Several other buildings are available in the RCR179/2016 5 locality to shift his business from the tenanted premises. 4. The respondent resisted the claim for eviction, contending that the need projected in the petition is not bona fide and it is a ruse for eviction only. The son of the petitioner is a student aged 18 years only and he has no need to start a business while he is a student. The building in which the petition schedule room is situated consists of 12 shop rooms and there are vacant rooms in the said building. Thus, if at all the petitioner wants to conduct any business, that could be done by making use of those vacant buildings in his possession. The petitioner has a number of business in Kalpetta and Pulpally. Therefore, there is no need for starting a new business of hardware. On the other hand, the respondent has no other source of RCR179/2016 6 income and the contra allegations in the petition are baseless. No other convenient buildings are available in the locality to shift his business from the tenanted premises. So, he is entitled to get protection under the 2[nd] proviso to section 11(3) of the Act. 5. Heard the learned counsel for the revision petitioner/tenant and the learned counsel for the respondents/landlord. 6. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court dismissed the rent control petition under section 11(3) of the Act, on a finding that the need projected in the petition was a future need, which was not in existence at the time of filing of the rent control petition. The RCR179/2016 7 petitioner has other vacant buildings in his possession to start the proposed business. But, in appeal, the Appellate Authority reversed the said finding and found that, though at the time of filing the rent control petition the dependent was aged 18 years, at the time of examination, he attained 27 years old and it has come out in evidence that he has no avocation at that time for his livelihood. Similarly, the Appellate Authority, as regards the 1[st] proviso, reversed the finding of the Rent Control Court and found that even if during the pendency of the rent control petition, the landlord gets vacant possession of another room and he did not start business in that room, that conduct of the landlord does not negate the bona fides of the need projected in the rent control petition. The Appellate RCR179/2016 8 Authority relied on the decision of this court in George T.I. v. K.L.Stanley [2013(4) KHC 543] in support of the aforesaid finding. 7. The learned counsel for the respondent advanced arguments exhaustively contending that at the time of filing of the rent control petition, the dependent, for whose need the building was required, was a student aged 18 years and there was no need for starting a new business for him at the time of filing of the rent control petition. 8. In the light of the arguments, we have meticulously gone through the pleadings. In the pleadings it is specifically stated that the petitioner requires the petition schedule shop room for himself and for his son, who is dependent RCR179/2016 9 on him for their bona fide need of starting a hardware business. Thus the need projected was not that of the dependent alone, but it was a joint need of the landlord and his son, who is dependent on him. 9. In view of the joint need projected in the pleadings, we are of the opinion that even if the dependent was a student at the time of filing of the rent control petition and the building is sought for him also, that does not negate the bona fides of the joint need of the father and son. A father may act in advance in anticipation of his son's future need, because, indisputably, a long period is required to get the fruits of a rent control petition. The above view is supported by the decision of this court in Raveendran M.N. v. V.V.Sivaprasad [2017 (5) KHC 240] , RCR179/2016 10 ## wherein it is stated as follows: “Coming to the first question, let us have a look at the judicial precedents. In Madhavan v. Ramachandran, 1970 (2) ILR Ker. 101, V. R. Krishna Iyer, J., as he then was, in his unique style, held that knowing that between the institution of the petition and the ultimate order from the Apex Court years pass, it will be as good as repealing the provision for eviction on the ground of bona fide need, if Courts insist on the landlords proving a present need as against a prospective but certain need. Proceedings in Court should not become tantalising tricks. Cannot the Rent Control Court take note of this subsequent event and give relief. It is not necessary that there should be a current, urgent need. It is enough if it is reasonably and likely to arise in near future. There is a discretion vested in the Court to depart from the general rule that the rights of RCR179/2016 11 the parties must be determined as on the date of the institution of the action in justifiable circumstances, provided such departure will not cause injustice. In Secretary, Thevara Co - op: Consumer Stores Ltd. v. Jose, 1984 KHC 166 : 1984 KLT 290 : 1984 KLJ 138, the land lord sought for eviction of a tenant under S.11(3) on the ground that he bona fide needs the building for own occupation after his marriage. The Division Bench of this Court held that there is absolutely no reason for denying the landlord a planning of his own for ordaining his affairs in a proper or regular manner. Planning is absolutely necessary in modern life. It is therefore, unjust to suggest that the landlord could seek eviction of a building, for him to live with his spouse, only after undergoing marriage nuptials. He is justifiably entitled to foresee things and plan his life. The Tribunal RCR179/2016 12 or Court would not sit in judgment over his honest or bona fide decision in the matter. In Kunhamma v. Usha, 1991 KHC 503 : 1991 (2) KLT 772 : 1991 (2) KLJ 709, the landlady wanted to occupy the building after the retirement of her husband. Relying on the aforesaid decisions, the Division Bench of this Court held that it is only reasonable for landlord / landlady to anticipate the delay in the finale of the result of the petition so to file a petition sufficiently early is only pragmatic and reasonable when he or she is certain that the building in question is required after the retirement of the landlady or her husband. 10. Relying on the decision of this court in Madhavan v. Ramachandran [1970 (2) ILR Kerala 101] this court held as follows: RCR179/2016 13 “knowing that between the institution of the petition and the ultimate order from the Apex Court years pass, it will be as good as repealing the provision for eviction on the ground of bona fide need, if Courts insist on the landlords proving a present need as against a prospective but certain need. Proceedings in Court should not become tantalising tricks. Cannot the Rent Control Court take note of this subsequent event and give relief. It is not necessary that there should be a current, urgent need. It is enough if it is reasonably and likely to arise in near future. There is a discretion vested in the Court to depart from the general rule that the rights of the parties must be determined as on the date of the institution of the action in justifiable circumstances, provided such departure will not cause injustice.” 11. That apart, as rightly pointed out by the Appellate RCR179/2016 14 Authority, when the case has come up for trial, more than nine years have elapsed after the filing of the rent control petition and at that time, the dependent son was aged 27 years. It has come out in evidence that during the pendency of the rent control petition he was graduated and thereafter he took MBA degree also. Therefore, we are of the opinion that the bona fides of the need cannot be negatived on the basis of the joint need projected in the rent control petition when the dependent was aged 18 years only. Therefore, we find that the findings of the Rent Control Court negating the bona fides of the need are perverse and the Appellate Authority is justified in finding that the need is bona fide. 12. The learned counsel for the respondent/tenant RCR179/2016 15 further contended that during the pendency of the rent control petition, the landlord has got vacant possession of other rooms in the same building and he let out those buildings to other tenants. According to the learned counsel for the respondent, had the need been bona fide, certainly he could have started the business in those vacant buildings, which he got during the pendency of the rent control petition. Learned counsel invited our attention to the deposition of PW1 also. 13. But, going by the counter statement, we find that there is no specific pleadings, disclosing the identity of the vacant rooms, which are in possession of the landlord and the vague contention is made in the counter statement. The respondent simply stated that there are RCR179/2016 16 vacant rooms in the said building. We are of the opinion that the absence of specific contentions pointing out the identity of the vacant rooms, which are allegedly in the possession of the landlord is fatal to the claim put up by the tenant, under the 1[st] proviso to section 11(3) of the Act. As regards the availability of vacant buildings during the pendency of the rent control petition, we find that the Appellate Authority has meticulously considered the same and rejected the said contention in view of the decision of this court in George's case (supra). In the aforesaid decision this court stated as follows: “The bona fide need of the landlord has to be examined as on the date of the institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of RCR179/2016 17 the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the state.” 14. In view of the aforesaid proposition laid down by the Division Bench of this court, the Appellate Authority is justified in rejecting the contention that availability of other building, during the pendency of the rent control petition, would negate the bona fides of the need, invariably in all cases, irrespective of the facts and circumstances of each case. 15. That apart, we further find that no evidence had been brought out on record to prove that during the pendency of the rent control petition the petitioner had got vacant possession of other rooms in the same building. The RCR179/2016 18 respondent has pressed into service Ext.B1 consent letter, issued by the petitioner/landlord to the Muncipality, for granting licence to the tenant. But, we find that Ext.B1 consent letter is one, which was issued to the tenant, before the filing of the rent control petition. Therefore, no reliance can be placed on Ext.B1, to arrive at a finding that during the pendency of the rent control petition, the petitioner had got vacant possession of other shop rooms in the same building and he let out the building to other tenants. In the absence of any evidence to prove the availability of vacant rooms in the hands of the petitioner during the pendency of the rent control petition, the Appellate Authority is justified in rejecting that contention also. RCR179/2016 19 16. Thus, we find that there is no illegality or impropriety in the findings, whereby the Appellate Authority reversed the findings of the Rent Control Court and granted an order of eviction under section 11(3) of the Act. The revision is dismissed. 17. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given six months' time to vacate the petition schedule building, 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 room within six months from today. RCR179/2016 20 (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 respondents/landlord will be at liberty to proceed with the execution of the eviction order. Sd/- K.HARILAL JUDGE Sd/- ANNIE JOHN JUDGE sl .