Kottakkunnummal Assainar & Noufal v. Muyyoth Kadeesa & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940 RCRev..No. 215 of 2018 AGAINST THE JUDGMENT IN RCA 162/2015 OF THE ADDITIONAL DISTRICT JUDGE, VADAKARA DATED 10-04-2018 AGAINST THE ORDER IN RCP 8/2014 OF THE MUNSIFF-MAGISTRATE, PAYYOLI DATED 31-10-2015 ## REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS 1 KOTTAKKUNNUMMAL ASSAINAR, S/O. MOIDEEN, AGED 60 YEARS, MEPPAYOOR AMSOM, CHANGARAVALLY DESOM, MEPPAYOOR (P.O.), KOYILANDY TALUK. - 2 NOUFAL, S/O. ABDULLA KOYA, AGED 46 YEARS, A.S.R.CHICKEN DEPOT, BEACH ROAD, PAYYOLI (P.O.), MELADI AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DIST. BY ADVS.SRI.M.P.SHAMEEM AHAMED SRI.E.C.AHAMED FAZIL ## RESPONDENT(S)/PETITIONERS: 1. MUYYOTH KADEESA, W/O. ABDULLA, AGED 76 YEARS, MUYYOTH HOUSE, MELADI AMSOM DESOM, MELADI (P.O), KOYILANDY TALUK - 673 522. 2. DAUGHTER MUYYOTH AYISHA, AGED 52 YEARS, MUYYOTH (H), MELADI AMSOM DESOM, KOYILANDY TALUK - 673 522. ## 3. SISTER MUYYOTH SUHARA, AGED 50 YEARS, MUYYOTH (H), MELADI AMSOM DESOM, KOYILANDY TALUK - 673 522. ## 4. BROTHER MUYYOTH RAFEEQ, - AGED 48 YEARS, MUYYOTH (H), MELADI AMSOM DESOM, MELADI (P.O.), KOYILANDY TALUK - 673 307. ## 5. SISTER MUYYOTH RASHEEDA, AGED 44 YEARS, MUYYOTH (H), MELADI AMSOM DESOM, MELADI (P.O.), KOYILANDY TALUK - 673 307. 6. SISTER MUYYOTH RASIYA, AGED 42 YEARS, MUYYOTH (H), MELADI AMSOM DESOM, MELADI (P.O.), KOYILANDY TALUK - 673 307. 7. BROTHER MUYYOTH RASIK, - AGED 40 YEARS, MUYYOTH (H), MELADI AMSOM DESOM, KOYILANDY TALUK - 673 307. 8. SISTER MUYYOTH RAMLA, AGED 35 YEARS, MUYYOTH (H), MELADI AMSOM DESOM, KOYILANDY TALUK - 673 307. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.Harilal & Annie John, JJ.** ==================================== R.C.R.No.215/2018 ==================================== Dated this the 5[th] day of July, 2018. ## **ORDER** ## **K.Harilal, J.** - 1.The revision petitioners are the appellants in RCA 162/2015 on the file of the Rent Control Appellate Authority, Vadakara as well as the respondents in RCP 8/2014 of the Rent Control Court, Payyoli. This revision petition has been filed, challenging the concurrent findings of the courts below, granting an order of eviction under section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act). The landlordtenant relationship is not disputed. The parties are referred to as in the rent control R.C.R.No.215/2018 ## -:2:- petition. 2.According to the petitioners, the respondents paid the rent only upto November, 2003. A notice dated 30.4.2007 was issued claiming arrears of rent. Then, they paid the rent for the month of March and April, 2007 by money order. Thus, rent from December, 2003 to February, 2007 and from May, 2007 to February, 2014 fell in arrears. It was not paid in spite of the receipt of notice dated 20.11.2013. Hence, the petitioners are entitled to get an order of eviction under section 11(2) (b) of the Act. It is further contended that the 4[th] petitioner _bona fide_ needs the petition schedule shop rooms for starting a chicken stall. He has previous experience in the said business. Earlier, he had issued a notice on R.C.R.No.215/2018 ## -:3:- - 30.4.2007, directing the tenants to vacate the petition schedule shop rooms. Thereafter, he met with an accident and sustained fracture on his legs and he was laid up for three years. Later, due to financial stringency, he was constrained to go abroad in search of a job. Now he has cancelled his visa and returned to India. He has no job or any source of income. In the above circumstances, the petition schedule shop room is required for starting a business to eke out his livelihood. - 3.The respondents denied the claim under section 11(2)(b) and 11(3). According to them, the total amount of arrears of rent stated in the petition is not correct. The rent by way of money order was returned by the landlords. There is no _bona fides_ in the need and the need R.C.R.No.215/2018 -:4:- projected is a ruse for eviction. The fourth petitioner is employed abroad even now. That apart, he has got properties which would generate income. He is the partner of the business conducted by his brother, the 7[th] petitioner in the same building. Wheareas he is dependent upon the income derived from the business carried on in the petition schedule shop room and no other suitable buildings are available in the locality for shifting his business. 4.After considering the evidence on record, which consists of the oral testimony of PW1, RWs 1 and 2 and documentary evidence of Exts.A1 to A14, Exts.B1 to B17 and Ext.C1, the courts below concurrently found that the petitioners are entitled to get an order of eviction, under R.C.R.No.215/2018 -:5:- section 11(2)(b) and 11(3). 5.Heard the learned counsel for the petitioners. 6.The scope and extent of consideration, in a revision filed under section 20 of the Act, are confined to the legality, propriety and regularity of the concurrent findings of the courts below. There is no scope for reappreciation of the entire evidence, unless the findings, whereby the courts below granted an order of eviction, are vitiated by perversity or non-consideration of the material evidence on record or mis-reading of evidence. The learned counsel for the respondents vehemently contended that the courts below have failed to consider the evidence of PW1 in its correct perspective. It is contended that the petitioners themselves have admitted that the R.C.R.No.215/2018 ## -:6:- income, which is being derived from the tenanted premises is very big. Further it is contended that the petitioners themselves have admitted the contention of the respondents that the petitioners refused to receive the rent. According to the learned counsel for the petitioners, the said admissions would prove that the respondents are mainly depending on the income from the business carried on in the petition schedule shop room and they have not refused to pay rent or wilfully defaulted the payment of rent. - 7.In view of the arguments, the point to be considered is, whether the findings of the courts below, whereby the courts below granted an order of eviction under section 11(2)(b) and - 11(3) are vitiated by perversity or non- R.C.R.No.215/2018 -:7:- consideration of material evidence on record. It is the case of the petitioners that the 4[th] petitioner _bona fide_ needs the petition schedule building for starting a chicken stall. He was working abroad and he returned from the gulf country, after cancelling his visa and thereafter he has no job or any source of income. In order to prove the _bona fides_ of the need, he has testified in consonance with the averments in the rent control petition. After examining the oral evidence of PW1, the courts below concurrently observed that nothing has been brought out to discredit his evidence and his evidence is reliable as well as trustworthy, as regards the _bona fides_ of the need. _Bona fides_ is a state of mind. In _**Sreekumaran Nair v. Ponnuswami Chettiar**_ **(2010** R.C.R.No.215/2018 ## -:8:- **(3) KLT 444)** this court held that, where the landlord himself testifies as to the state of mind, evidencing the _bona fides_ of his need and offers himself for cross-examination, his oral testimony as such is liable to be accepted, unless the tenant brings out anything contrary in the cross-examination. In the absence of anything contrary to the _bona fides_ of the need spoken in chief examination, the courts below are justified in accepting the oral testimony of PW1. - 8.Coming to the 1[st] proviso to section 11(3), the respondents contended that the landlords have other buildings of their own to start the proposed business. In evidence, they more specifically contended that one shop room is remaining vacant and that room is situated R.C.R.No.215/2018 ## -:9:- adjacent to the room, wherein the 1[st] petitioner's brother is conducting the chicken stall. The courts below have meticulously considered the availability of one vacant room adjacent to the room wherein the 1[st] petitioner's brother is conducting the chicken stall. The Appellate Authority more specifically found that in Ext.A7 reply notice sent by the respondents to Ext.A6 notice issued by the petitioners, they admitted that the room, which is situated adjacent to the room in which the 1[st] petitioner's brother is conducting the chicken stall, is also occupied by the brother of the 1[st] petitioner, for conducting his chicken stall, even though that shop room is a small one. Thus, in Ext.A7 reply notice, the respondents themselves admitted that the R.C.R.No.215/2018 ## -:10:- alleged vacant room was being occupied by the brother of PW1, for conducting his chicken stall. No other evidence was adduced by the respondents to prove that the petitioners have other vacant buildings of their own in the same locality to start the proposed business. In the absence of such evidence, the courts below are justified in finding that the _bona fide_ need projected in the petition is not hit by the first proviso. Coming to the 2[nd] proviso, it is mainly contended that PW1 himself admitted that the income, which is being derived by the respondents from the tenanted premises is a big income. 9.We have meticulously gone through the oral testimony of PW1. We find that PW1 was crossexamined in a way suggesting that the income, R.C.R.No.215/2018 ## -:11:- which is being derived from the tenanted premises is very big, as the business is a wholesale business. It was put to him that the volume of business in the tenanted premises is very high and respondents' chicken stall is the the biggest chicken stall in Payyoli. In answer to this question, PW1 admitted that the chicken stall, which is being conducted in the tenanted premises, is a big wholesale business and the income from the said business is also very big. 10. We are of the opinion that even if the oral evidence of PW1 is taken at its face value, it cannot be said that PW1 has admitted that the respondents are mainly depending on the income from the tenanted premises for their livelihood. Further, we are of the opinion R.C.R.No.215/2018 ## -:12:- that a person cannot say the exact income of another person or whether he is depending upon the income from the business, because, income and its dependency for livelihood is a fact, exclusively within the special knowledge of the person, who dervies income only and it was incumbent upon the person, who derives income, to show that he is depending mainly on that income by producing sufficient documentary evidence to prove his volume of business or annual income by the production of a statement of account or income tax returns. This Court in _**Shahul Hameed A. v. T.E.Abdu Razak**_ **[2016 (5) KHC 820]** held that no tenant can claim the protection under the 2[nd] proviso, by hiding his income and it is for him to prove his average income from the tenanted premises and his dependency on it by the production of R.C.R.No.215/2018 ## -:13:- documentary evidence, like statement of accounts, sales tax returns, income tax returns etc. In the above view, we find that the courts below are justified in finding that the respondents failed to prove that they are depending upon the income derived from the business carried on in the tenanted premises. 11. As regards the order of eviction granted under section 11(2)(b) of the Act, we find that even though the respondents contended that they sent rent by money order and it was refused by the petitioners, admittedly, they have not resorted to the mode of payment prescribed under section 9 of the Act. Similarly, despite the receipt of statutory notice under section 11(2)(b), they have not paid the arrears of rent within 15 days from the date of receipt of R.C.R.No.215/2018 ## -:14:- notice. Arrears of rent is an admitted fact. So, the failure to pay rent within 15 days would be followed by an order of eviction under section 11(2)(b). So, there is no illegality in granting an order of eviction under section 11(2)(b) also. 12. As regards the 2[nd] limb of the 2[nd] proviso of section 11(3) of the Act, it is needless to say, the 1[st] and 2[nd] limb of the 2[nd] proviso are conjunctive and the burden of proof is on the tenants to prove that no other alternative vacant buildings are available in the locality. Though it is a negative fact, the burden is always upon the tenants and the oral assertion that no other buildings are available in the locality is not sufficient to discharge the burden of proof. In cross-examination of RW1, R.C.R.No.215/2018 ## -:15:- it was brought out that he did not personally conduct any enquiry as to the availability of the vacant rooms in the locality and he is ignorant of that fact whether rooms are available in the locality or not. His oral assertion that no vacant buildings are available in the locality is based on hearsay knowledge only. So, the assertion has no basis at all and it cannot be considered as evidence. Thus, the respondents have failed to discharge the burden of proof under the 2[nd] proviso also. 13. In the above analysis, we find that there is no illegality or impropriety in any of the findings, whereby the courts below granted an order of eviction, under section 11(2)(b) and 11(3). We do not find any kind of perversity or non-consideration of evidence in the R.C.R.No.215/2018 ## -:16:- appreciation of evidence. 14. This revision is hence dismissed. All the pending interlocutory applications will stand closed. The learned counsel for the tenants sought for one year time to surrender the petition schedule shop room. Having regard to the facts and circumstances of the case, the tenants shall surrender the petition schedule shop room within six months from today, provided they could comply the conditions given below within the specified time. i) The tenants shall file an affidavit before the Execution Court expressing an unconditional undertaking to surrender the petition schedule shop room within a period of six months from today and the said affidavit must be filed within two weeks from the date of receipt of a copy of this order. R.C.R.No.215/2018 ## -:17:- ii) The tenants shall pay the entire arrears of rent to the landlords or deposit the same before the Execution Court within two weeks from the date of receipt of the copy of this order and they shall continue to pay the rent without default. iii) In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the landlord will be at liberty to proceed with the execution. Sd/- **K.Harilal, Judge** Sd/- **Annie John, Judge** sl. //True copy// P.S. To Judge