KIZHAKKAYIL KUNJABDULLA HAJI S/O MOOTHAN v. THOMAS and NEENDIYULLA PARAMBATHU KUNHIKANNAN

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 09TH DAY OF FEBRUARY 2018 / 20TH MAGHA, 1939** **RCRev. No. 328 of 2015** **AGAINST THE ORDER/JUDGMENT IN RCA 201/2012 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA DATED 18-09-2015** **AGAINST THE ORDER/JUDGMENT IN RCP 20/2011 of MUNSIFF COURT, NADAPURAM DATED 30-10-2012** ## **REVISION PETITIONER/S:** **KIZHAKKAYIL KUNJABDULLA HAJI S/O.MOOTHAN,AGED 64 YEARS, RESIDING AT KUZHICHALUPARAMBATHU HOUSE, BHOOMIVATHUKAL DESOM, VANIMEL VILLAGE, KODIYURA PO, PIN 673 506, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS. SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENT/S:** **1 THOMAS AGED 62 YEARS S/O.SEBASTIAN, PUTHENPURAYIL HOUSE, VILANGADU PO, KOZHIKODE, PIN 673 506, VELLIYODE AMSOM, VANIMEL VILLAGE, VATAKARA TLAUK, KOZHIKODE DISTRICT. 2 NEENDIYULLA PARAMBATHU KUNHIKANNAN S/O.KADUNGON, AGED 59 YEARS, CHALUPARAMBATHU HOUSE, NARIPPATTA P.O., NARIPPATTA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS. SRI.R.K.MURALEEDHARAN SRI.N.M.RAJAGOPAL** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09.02.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 328 of 2015** **2** ## **O R D E R** ## C. T. Ravikumar, J. The captioned revision petition is filed against the concurrent findings on a petition for eviction filed under Section 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act 1965, (for brevity hereinafter referred to as 'the Act') by the revision petitionerlandlord. The respondent herein is the tenant in respect of the petition schedule shop rooms. The revision petitioner filed the said petition stating that he _bonafidely_ needs the rooms for starting hill produce goods business and also raising the ground that the first respondent had sub-let the tenanted shop rooms to the second respondent herein. The Rent Control Court, Nadapuram repelled his contentions and consequently dismissed the Rent Control Petition as per order dated 30.10.2012 in RCP No.20/2011. In the appeal, the Rent Control Appellate Authority, Vatakara confirmed the order of dismissal though the finding under Section 11(3) was **RCRev..No. 328 of 2015** **3** sustained on other grounds. It is in the said circumstances, that the captioned revision petition has been filed challenging the judgment of the Rent Control Appellate Authority, Vatakara, confirming the order passed by the Rent Control Court. 2. We have heard the learned counsel appearing for the revision petitioner as also the learned counsel appearing for the first respondent. Though notice was served on the second respondent in this proceedings, he has not chosen to enter appearance. 3. Before the Rent Control Court, the revision petitioner/the landlord was examined as PW1 and on his side Exts.A1 to A5 were got marked. The first respondent/the tenant was examined as RW1 and on his side Exts.B1 and B1(a) to B1(c) were got marked. It is the evaluation of the evidence and appreciation of the rival contentions which culminated in the order passed by the Rent Control Court that got confirmance with the judgment of the Rent Control Appellate Authority, Vatakara. The _bonafide_ need projected by the revision **RCRev..No. 328 of 2015** **4** petitioner/the landlord is that he requires the petition schedule shop rooms to start hill produce goods business in the tenanted rooms and at the same time, he stated therein that he is in financial crisis. A perusal of the order passed by the Rent Control Court would reveal that while considering the _bonafide_ need projected by the revision petitioner, it also took into consideration the financial position of the revision petitioner/the landlord. The impugned judgment passed by the Rent Control Appellate Authority would reveal that the Appellate Authority took the view that the Rent Control Court ought not to have considered the financial aspect and ought to have confined its consideration on the question of genuineness or otherwise of the _bonafide_ need projected. In other words, according to the Appellate Authority, the only consideration which ought to have been bestowed by the Rent Control Court while considering the _bonafide_ need projected under Section 11(3) of the Act was whether the desire or the intention to start hill produce goods business in the petition schedule shop rooms by **RCRev..No. 328 of 2015** **5** the revision petitioner/the landlord is genuine or not, without looking into his financial capacity. True that under normal circumstances, when a _bonafide_ need is projected seeking eviction of a tenant from the tenanted premises assigning a reason, the question whether the landlord is financially well or not by itself cannot be a reason for declining to accept the _bonafide_ need projected by him if it is otherwise to be upheld. But, at the same time, we are of the considered view that the Rent Control Court cannot be found fault with in the case on hand for looking into the financial aspects as in the Rent Control Petition itself what revision petitioner had stated is that he required the petition schedule shop rooms for starting the said business as he is in financial crisis. When he himself projects and emphasized financial stringency as a reason it cannot be said that the Rent Control Court went wrong in considering that aspect. A perusal of the evidence on record would reveal that the tenant/the first respondent herein had taken up the contention before the Rent Control Court regarding **RCRev..No. 328 of 2015** **6** availability of vacant rooms in the possession of the landlord in the same building itself wherein he is conducting business. True that while being examined as PW1, the revision petitioner/the landlord herein deposed to the effect that at the time of filing the Rent Control Petition, no vacant rooms were available in the said building and at the same time, he admitted the fact that during its pendency two rooms became vacant in the building in question. The learned counsel appearing for the revision petitioner contended that the said subsequent development ought not to have been a reason at all for repelling the claim for eviction of the revision petitioner based on the _bonafide_ need projected by him. To fortify the said contention the learned counsel relied on the decision of a Division Bench of this Court in _**Valsan v. Furtal**_ [2004(3) KLT 1046]. In the said decision the Division Bench held that mere fact that a landlord has come into possession of his premise during the pendency of the rent control proceedings would not mean that he should occupy that premise **RCRev..No. 328 of 2015** **7** rather than proceeding with the rent control proceedings initiated against another tenant. It was further held that a landlord after having made preference could not be forced to occupy another vacant premise. Certainly such a conclusion was arrived at by the Division Bench after referring to the decisions of the Hon'ble Apex Court in _**Savithri Sahay v. Sachidanand Prasad**_ [(2002) 8 SCC 765] and _**Pratap Rai Tanwani v. Uttam Chand**_ [2004 (7) SCALE 631]. In the said decisions the Hon'ble Apex Court held that the crucial date for considering the _bonafide_ need is the date of filing of the Rent Control Petition. But, at the same time, it is relevant to note that the Hon'ble Apex Court went on to hold that in cases where the Court is satisfied that subsequent events have wholly satisfied the requirement of the landlord it could reject the plea of the landlord under Section 11(3) of the Act. In such circumstances, the applicability of the decision relied on by the learned counsel for the petitioner would depend upon the evidence available in the case on hand. As noticed hereinbefore the _bonafide_ **RCRev..No. 328 of 2015** **8** need projected by the revision petitioner/the landlord is to start a hill produce goods business in the petition schedule shop rooms. At the same time, it has come out in evidence that immediately after filing the Rent Control Petition two rooms came to his possession on being vacated by the tenants concerned. In the light of the decision of the Hon'ble Apex Court referred to by the Division Bench in _**Valsan's**_ case (supra), it would not be irrelevant to consider whether those rooms would wholly satisfy the requirement of the revision petitioner. That question has to be considered not merely based on the oral account of the revision petitioner but also taking into account the nature of the business proposed to be conducted in the petition schedule shop rooms. 4. Now, we will consider whether the revision petitioner got any special reason for not occupying the vacant rooms, bearing in mind the business proposed to be started. In the case on hand, the special reason assigned by the revision petitioner is that the vacant rooms got no road frontage. The proposed business, in **RCRev..No. 328 of 2015** **9** hill produce goods, can certainly be conducted in the vacant rooms in the light of the evidence obtained in this case. The first respondent herein while being examined as RW1 deposed to the effect that there is a common hall having a width of 4 metres leading to the said shop rooms. In such circumstances, merely because there is no road frontage to the said rooms by itself cannot be a special reason for non-occupation. Going by the evidence on record there can be no hindrance for conveyance of hill produce goods. In that view of the matter we are of the considered view that in the case on hand even if the reasons assigned by the Rent Control Court in repelling the claim for eviction of the tenant under Section 11(3) by the Rent Control Court is bad in law the reasoning of the Appellate Authority for repelling the said claim of the landlord under Section 11(3) of the Act cannot be said to be illegal warranting an interference. At any rate, we do not find any reason for interfering with the concurrent findings on the claim for eviction under Section 11(3) of the Act. **RCRev..No. 328 of 2015** **10** 5. Under Section 11(4)(i) of the Act also there is concurrent findings by the authorities below. While being examined as PW1 the revision petitioner had deposed to the effect that the foundation for his contention that the first respondent had given the shop rooms on sub-lease to the second respondent is nothing but the presence of the second respondent, noted by him in the tenanted shop rooms. Merely because the second respondent was seen in the petition schedule shop rooms by itself cannot be a reason to contend that the shop rooms in question were sub-let by the first respondent to the second respondent. The learned counsel for the revision petitioner relied on a decision of the Hon'ble Apex Court in _**Prem Prakash's**_ case (supra) to contend that the authorities below ought to have found that the revision petitioner/the landlord had succeeded in discharging his initial onus for the purpose of getting an order of eviction under Section 11(4)(i) of the Act. In _**Prem Prakash's**_ case (supra) there was clear evidence to reveal that the sub tenant was neither an employee nor was looking **RCRev..No. 328 of 2015** **11** after the customers of the appellant/the tenant in his absence and instead he was actually carrying on his personal business in the tenanted premises. In the case on hand as noticed hereinbefore, the sole foundation for raising such a contention is that the second respondent was seen in the petition schedule shop rooms. At the same time it is to be noted that while being examined as RW1 the first respondent/the tenant deposed to the effect that the second respondent is only a worker in his shop room and that the licence to run the shop in question is in his name. No cogent evidence was adduced by the revision petitioner/the landlord to controvert the said version. In the said circumstances, we have no hesitation to hold that there is no error or illegality in the findings of the authorities below that the revision petitioner had failed to establish a ground for eviction under Section 11(4)(i) of the Act. In short, we do not find any reason to interfere with the dismissal of the Rent Control Petition and its confirmance by the Appellate Authority. **RCRev..No. 328 of 2015** **12** The upshot of the discussion as above is that there is no merit in this revision petition and it is liable to fail. Accordingly, it is dismissed. There will be no order as to costs. **Sd/-** **C.T.RAVIKUMAR** **JUDGE** **Sd/-** **MARY JOSEPH JUDGE** SKK/ad/5119