K.K. Hassan Kunhi v. Dr. Muhammed Ali M. and others

1 RCR 430 OF 2019 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** **RCRev..No.430 OF 2019** **AGAINST THE ORDER/JUDGMENT IN RCA 29/2017 DATED 09-07-2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT-I) ,THALASSERY** **AGAINST THE ORDER/JUDGMENT IN RCP 229/2015 DATED 30-11-2016 OF THE RENT CONTROL COURT(PRINCIPAL MUNSIFF) ,KANNUR** ## **REVISION PETITIONER/S:** **K.K.HASSAN KUNHI,AGED 64 YEARS S/O.ABDUL RAHIMAN, BUILDING NO.TV 33/16, KODI FOOTWEAR, FORT ROAD, KANNUR - 670 001.** **BY ADV. SRI.K.RAJESH SUKUMARAN** ## **RESPONDENT/S:** |**1**|**DR.MUHAMMED ALI M.,AGED 74 YEARS**| |---|---| ||**S/O.HASSAN KUNHI, FATHIMA FARHEEN, THATTIYODE,**| ||**P.O.KOODALI, THATTIYODE DESOM, KANHIRODE DESOM, KANNUR -**| ||**670 592.**| |**2**|**T.P.ANSILA,W/O.M.FAISAL, AGED 43 YEARS, RABIYA MANZIL,**| ||**NEAR GOVT. HIGH SCHOOL, VALAPATTANAM AMSOM DESOM, KANNUR**| ||**- 670 592.**| |**3**|**DR.T.NISHI,W/O.DR.P.FARHAD, AGED 46 YEARS, FATHIMA**| ||**FARHEEN, THATTIYODE, P.O.KOODALI, THATTIYODE DESOM,**| ||**KANHIRODE DESOM, KANNUR - 670 592.**| |**4**|**T.P.JERRISH,S/O.DR.MUHAMMED ALI M., AGED 36 YEARS,**| ||**FATHIMA FARHEEN, THATTIYODE, P.O.KOODALI, THATTIYODE**| ||**DESOM, KANHIRODE DESOM, KANNUR - 670 592.**| |**5**|**T.P.SHAMEEM,S/O.DR.MUHAMMED ALI M., AGED 44 YEARS,**| ||**FATHIMA FARHEEN, THATTIYODE, P.O.KOODALI, THATTIYODE**| ||**DESOM, KANHIRODE DESOM, KANNUR - 670 592.**| ## **R1-4 BY ADV. SRI.V.R.KESAVA KAIMAL** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 RCR 430 OF 2019 ## **ORDER** ## **K.HARILAL, J.** The legality, propriety and regularity of the concurrent findings of the court below granting order of eviction, under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), have come up in revision before this Court. The are referred to as parties petitioners and respondents, as per their status in RCP 229/2015. 2. The petitioners/landlords filed RCP No.229/2015 before the Rent Control Court, Kannur seeking an order of eviction stating that the 3[rd] petitioner is a medical graduate specialized in Ultra Sonography and she bona fide requires the petition schedule building, to start a scanning centre and all other co-owners have agreed to give 3 RCR 430 OF 2019 the petition schedule building to her, for conducting the said scanning centre. The petitioners have no other buildings of their own to start the said scanning centre; whereas several other buildings are available in the locality, to shift the 1[st] respondent's business from the tenanted premises. 3. The first respondent/tenant resisted the claim for eviction, under Sec.11(3) of the Act, contending that the need projected is not bona fide and the landlords have several other buildings in the locality, to start the aforesaid scanning centre. So also, it is contended that he is mainly depending the income derived from the business upon conducted in the tenanted premises and no other vacant buildings are available in the locality, to shift his business and thereby he is entitled to get protection, under the second proviso to Sec.11 (3) 4 RCR 430 OF 2019 of the Act. 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected is bona fide, the claim for eviction is not negated by the first proviso to Sec.11(3) of the Act and the tenant is not entitled to get protection, under the second proviso to Sec.11(3) of the Act. The aforesaid findings are challenged in this revision. 5. It is needless to say, the scope and extent of interference of the revisional court, under Sec.20 of the Act is very limited and confined to legality, regularity and propriety of the findings of the courts below only and the revisional court is not permitted to interfere with the factual findings, unless the findings are perverse. Therefore, the question to be considered is, whether there is any 5 RCR 430 OF 2019 perversity in the appreciation of evidence on record. 6. In order to prove the bona fides of the need, the 3[rd] petitioner, for whose need, the schedule was was petition building required, examined as PW1 and she has testified in Court in accordance with the bona fides of her need, in conformity with the averments in the rent control petition. Though she was cross-examined, nothing was brought out to discredit her evidence, according to the court below. The court below specifically observed that the landlords have succeeded in proving the bona fides of their need, by examining the landlord himself, for whose need, the building was required and subjecting for crossexamination by the tenant. Since bona fide is a state of mind, the oral evidence of the landlord is a reliable evidence to prove the same, where the 6 RCR 430 OF 2019 tenant failed to discredit him, by cross- examination. 7. The courts below concurrently placed reliance on the oral evidence of PW1. We do not find any reason to interfere with the concurrent findings of the court below on bona fide need. 8. Coming to the first proviso, though it is contended that the landlords have several other buildings, no evidence has been brought out in evidence, to prove the availability of any other vacant building in the possession of the landlords. No commission was taken out by the first respondent to substantiate the said contention. Mere assertion is not sufficient to discharge the burden of proof under the first proviso. Therefore, the courts below are justified in finding that the need projected is not hit by the first proviso to Sec.11(3) of the Act. 7 RCR 430 OF 2019 9. Coming to the second proviso, it is needless to say, both limbs of the second proviso are conjunctive and burden of proof is on the tenant. No evidence has been adduced to prove the volume of income, which is being derived from the tenanted premises. 10. In **Shahul Hameed vs Abdul Razak (2016 KHC 820)** this Court held that the tenant, who is hiding his income from the Rent Control Court, is not entitled to get protection, under the second proviso to Sec.11 (3) of the Act. Similarly, no evidence was adduced to prove the nonavailability of other vacant buildings in the locality. No commission was taken out to his prove contention that other buildings are available in the locality. Mere assertion of the tenant alone is not sufficient to discharge the burden of proof, under the second proviso to Sec.11(3) of the Act. Thus, 8 RCR 430 OF 2019 we find that the courts below are justified in arriving at a finding that the tenant is not entitled to get protection, under the second proviso to Sec.11(3) of the Act. We do not find any kind of illegality, irregularity and impropriety in any of the findings, whereby the courts below concurrently granted an order of eviction under Sec.11 (3) of the Act. 11. The learned counsel for the revision petitioner/tenant prays for one year time to vacate the tenanted premises. The learned counsel for the respondents/landlords submits that a reasonable time may be granted to the revision petitioner. 12. Having regard to the submissions at the bar, the revision petitioner is given six months' time to vacate the tenanted premises on the following conditions: _(1) The revision petitioner/tenant shall file an affidavit,_ 9 RCR 430 OF 2019 _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 building 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 respondents/landlord will be at liberty to proceed with the execution of the eviction order._ ## **sd/-** **K.HARILAL JUDGE** **sd/-** **C.S.DIAS** **JUDGE** sks/12.12.2019