K.O. AMEER SIDDIQUE v. FATHIMA and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944** **RCREV. NO. 22 OF 2023** **AGAINST JUDGMENT DATED 30.08.2022 IN RCA NO.5 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY-III, KASARAGOD ARISDING FROM ORDER DATED 30.11.2018 IN RCP NO.23 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF), HOSDURG** ## **REVISION PETITIONER/1ST RESPONDENT IN RCA/RESPONDENT IN RCP:** **K.O. AMEER SIDDIQUE, AGED 55 YEARS, SON OF KARIPODI MUHAMMED KUNHI RESIDING AT PALAKUNNU, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671318.** **BY ADVS. SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.ABRAHAM GEORGE JACOB** ## **RESPONDENTS/APPELLANTS 1 T O3, RESPONDENT 2 AND APPELLANT** **4/PETITIONERS IN RCP:** - **1 FATHIMA, AGED 73 YEARS, WIFE OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** - **2 KAIRUNNISA, AGED 50 YEARS, DAUGHTER OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRIC, PIN – 671124.** RCR Nos.22 & 25 of 2023 2 - **3 SHARAFUDHEEN, AGED 49 YEARS, SON OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** - **4 SAMEERUNNISA, AGED 47 YEARS, DAUGHTER OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** - **5 SIRAJUDHEEN, AGED 43 YEARS, SON OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.02.2023, ALONG WITH RCRev..25/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 RCR Nos.22 & 25 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944** **RCREV. NO. 25 OF 2023** **AGAINST JUDGMENT DATED 30.08.2022 IN RCA NO.3 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY-III, KASARAGOD ARISDING FROM ORDER DATED 30.11.2018 IN RCP NO.23 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF), HOSDURG** ## **REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT IN RCP:** **K.O.AMEER SIDDIQUE, AGED 55 YEARS, SON OF KARIPODI MUHAMMED KUNHI RESIDING AT PALAKUNNU, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671318.** **BY ADVS.** **SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.ABRAHAM GEORGE JACOB** ## **RESPONDENTS/RESPONDENTS IN RCA/PETITIONERS IN RCP:** - **1 FATHIMA, AGED 73 YEARS, WIFE OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** - **2 KAIRUNNISA, AGED 50 YEARS,** **DAUGHTER OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** RCR Nos.22 & 25 of 2023 4 - **3 SHARAFUDHEEN, AGED 49 YEARS, SON OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** - **4 SAMEERUNNISA, AGED 47 YEARS, DAUGHTER OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** - **5 SIRAJUDHEEN, AGED 43 YEARS, SON OF LATE M.P. ABBAS, RESIDING AT P.K. HOUSE, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN – 671124.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.02.2023, ALONG WITH RCRev..22/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 RCR Nos.22 & 25 of 2023 ## P.B.SURESH KUMAR & SOPHY THOMAS, JJ. **-------------------------------------------** ## R.C.Rev. Nos.22 & 25 of 2023 ----------------------------------------------- Dated this the 15[th] day of February, 2023 ## ORDER ## P.B.Suresh Kumar, J . The tenant in a proceedings for eviction under Sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (the Act), is the petitioner in these revision petitions. The Rent Control Court ordered eviction under Section 11(3) and dismissed the claim under Section 11(2)(b). Both the landlords and the tenant challenged the decision of the Rent Control Court in appeal. The Appellate Authority dismissed the appeal preferred by the tenant and allowed the appeal preferred by the landlords and thereby granted to the landlords an order of eviction under Section 11(2)(b) as well. The tenant is aggrieved by the said decision of the Appellate Authority. 2. The order of eviction under Section 11(2)(b) of the Act being one that could be vacated in terms of Section 11(2)(c) by remitting the arrears of rent found to have been defaulted, the finding based on which the said order is passed being purely on a question of fact, we are of the view that an adjudication as to the correctness of the said finding is not one that could be challenged in a proceedings under Section 20. As 6 RCR Nos.22 & 25 of 2023 such, we are proceeding straight away to examine the question whether the concurrent orders of the authorities below on the claim made by the landlords under Section 11(3) suffer from any illegality, irregularity or impropriety. 3. The subject matter of the proceedings is one of the shop rooms facing a public road in a commercial complex consisting of almost 80 shop rooms. The commercial complex belonged to the predecessor of the landlords, M.P.Abbas and the same devolved on the landlords, who are his wife and children, on his death. The case set out by the landlords in the eviction petition is that the third petitioner/landlord intends to establish an Ice Cream and Cool Bar business in the tenanted premises. The claim was resisted by the tenant mainly on the ground that the need is not bona fide, but only a ruse for eviction of the tenant, as he did not accede to the demand made by the landlords for enhanced rent. It was also contended by the tenant that the need is not bona fide, as the landlords have several other vacant premises in their possession in the very same commercial complex and the landlords, who are very affluent may not conduct a business in the nature of one proposed by the third petitioner. In fact, the landlords have instituted a proceedings earlier for eviction of the tenant under Section 11(4)(ii) of the Act and the same was not pursued. The said conduct on the part of the landlords was also relied on by the tenant to contend that there is no bona fides in the need. In 7 RCR Nos.22 & 25 of 2023 addition, the tenant has claimed the benefit of the first and second provisos to Section 11(3) of the Act. 4. The third petitioner, for whose benefit the eviction was sought, gave evidence in the proceedings as PW1. Exts.A1 to A6 are the documentary evidence on the side of the landlords. The tenant gave evidence as RW1. A witness was also examined on the side of the tenant as RW2. Exts.B1 to B3 are the documentary evidence on the side of the tenant. Exts.C1 and C2 are the report and sketch prepared by the Advocate Commissioner appointed in the proceedings. 5. On an examination of the materials on record, the Rent Control Court found that the need set out by the landlords for eviction is bona fide. The Rent Control Court did not also accept the claim of the tenant that he is entitled to the benefit of the first and second provisos to Section 11(3) of the Act. Consequently, the eviction petition was allowed and the said decision was affirmed in appeal by the Appellate Authority. As noted, the tenant is aggrieved by the said decisions of the authorities below. 6. Heard the learned counsel for the tenant. 7. The learned counsel for the tenant reiterated the contentions taken by the tenant before the authorities below as regards the bona fides of the need set out by the landlords. It was also argued 8 RCR Nos.22 & 25 of 2023 persuasively by the learned counsel that the materials on record would indicate that at least three among the several shop rooms in the commercial complex, of which the tenanted premises is a part are vacant, in order to establish that the claim is not bona fide and also to get, at any rate, the benefit of the first proviso to Section 11(3). The learned counsel elaborated the said argument, placing reliance on the report of the Advocate Commissioner, in which it was stated that rooms bearing Nos.126, 73, 74, 75 and 76 were found to be vacant at the time of inspection. Although the Advocate Commissioner stated in his report that the said rooms were found to be vacant at the time of inspection, it was also mentioned in the report that the tenants who were present at the time of inspection claimed that they have not surrendered the said premises to the landlords, as they are contemplating to continue the same or other business in the premises. According to the learned counsel, the report of the Advocate Commissioner is one stage managed by the landlords and the aforesaid premises were actually vacant at the time of inspection of the Advocate Commissioner. In order to buttress the said argument, placing reliance on the evidence of PW1, it was pointed out by the learned counsel for the tenant that the person who was earlier running business in rooms bearing Nos.73 and 74 in the name and style 'Mahima Enterprises' is presently working abroad. Placing reliance on the statement made by PW1 that the tenant is depending solely on the 9 RCR Nos.22 & 25 of 2023 income from the business carried on by him in the tenanted premises for his livelihood, it was argued by the learned counsel that the authorities below, at any rate, ought to have granted to the tenant the benefit of the second proviso to Section 11(3) of the Act. 8. We have examined the arguments advanced by the learned counsel for the tenant. 9. Before dealing with the argument advanced by the learned counsel for the tenant, it is necessary to understand the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under Section 20 of the Act is only to ensure that the decisions of the Authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, reappreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the finding can be said to be either erroneous or perverse. It has been held by the Apex Court in Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, [(2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse, warranting correction under Section 20 of the Act. 10. No doubt, the need on the basis of which an order of 10 RCR Nos.22 & 25 of 2023 eviction could be claimed under Section 11(3) of the Act shall not be a mere desire, but shall be genuine and honest. The question as to whether the need set out is genuine and honest, is one to be decided based on the facts of each case. The authorities below concurrently found that the need set out by the landlords in the case on hand cannot be said to be a mere desire and it is a genuine and honest one. Under normal circumstances, this Court will not interfere with such a finding, unless the same is either erroneous or perverse. 11. Be that as it may, as noted, one of the arguments advanced by the learned counsel for the tenant to bring home the point that the need is not bona fide, is that the demand made by the the landlords for enhanced rent has not been acceded to by the tenant. It has been held by this Court consistently in several cases that merely for the reason that rent was sought to be enhanced earlier, the subsequent claim for eviction cannot be said to be not bona fide. Similarly, merely for the reason that the landlords are affluent, it cannot be said that they may not conduct an Ice Cream and Cool Bar business. It all depends on the person concerned and the manner in which the business is proposed. Similarly, merely for the reason that the landlords have preferred an earlier application and the same was not pursued, it cannot be inferred that there is no bona fides in the present claim. In short, we do not find any merit in the contentions raised by the learned counsel for the tenant to 11 RCR Nos.22 & 25 of 2023 show that the need set out by the landlords for eviction is not bona fide. 12. What remains to be considered is the question as to whether the tenant has established that the landlords are in possession of other vacant premises where they could conveniently conduct the proposed business. As noted, even though the Advocate Commissioner has stated in his report that a few shop rooms were found to be vacant at the time of inspection, the said premises are not in the possession of the landlords, but in the possession of the respective tenants. In other words, the report of the Advocate Commissioner is against the tenant. There cannot be any doubt to the proposition that the report of the Advocate Commissioner will form part of the records, and if the report is not discredited by examining the Advocate Commissioner, a party cannot be heard to contend that the facts reported are incorrect or the same cannot be relied on by the court. In the case on hand, no attempt is seen made by the tenant to examine the Advocate Commissioner to discredit his report. Be that as it may, as noted, the factual premise on which the Advocate Commissioner reported that the premises pointed out by the learned counsel for the tenant are not vacant, is that the tenants of the said premises maintained that they are still in possession of the premises. The tenant could have certainly examined the tenants of the landlords who were running various businesses in the premises referred to above earlier to show that they have surrendered possession of the same to the 12 RCR Nos.22 & 25 of 2023 landlords. There was no attempt on the part of the tenant to examine the persons who were running businesses in the said premises earlier in order to show that they have surrendered the premises to the landlords. One among them is presently working abroad is no reason to infer that he has surrendered vacant possession of the premises to the landlords. 13. Coming to the aspects relating to the second proviso to Section 11(3) of the Act, as noted, the argument advanced by the learned counsel for the tenant was that the landlord has admitted in his evidence that the tenant is depending solely on the income from the business carried on by him in the tenanted premises for his livelihood. Curiously, the tenant has not adduced any evidence in this case to show that there are no other convenient premises in the vicinity of the tenanted premises where the tenant could continue the business. If that be so, even assuming that the tenant is depending solely on the income from the business carried on by him in the tenanted premises for his livelihood, it cannot be contended that he is entitled to the benefit of the second proviso to Section 11(3), as it is well settled that in order to claim the benefit of the second proviso, the tenant has to establish not only that he is depending solely on the income from the tenanted premises for his livelihood, but also that there are no other vacant premises in the vicinity where he could carry on the business carried on in the premises. We do not therefore find any illegality, irregularity or RCR Nos.22 & 25 of 2023 13 impropriety in the concurrent orders of eviction under Section 11(3) of the Act, warranting interference of this Court under Section 20. The rent control revisions are, therefore, dismissed. Nevertheless, having regard to the peculiar facts and circumstances of this case and the orders issued by this Court in similar and identical cases, we deem it appropriate to grant the tenant six months' time from today to surrender vacant possession of the premises, on condition that he shall file an unconditional undertaking before the Rent Control Court within two weeks from the date of receipt of a copy of this order to vacate the tenanted premises within six months and also that he shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent on or before the tenth day of every succeeding month till he vacates the premises. Ordered accordingly. P.B.SURESH KUMAR, JUDGE. Sd/SOPHY THOMAS, JUDGE. DSV/16.02.2023