K.P. RAMSHEEDA v. A.N. SAJITHA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** **RCRev..No.23 OF 2020** **AGAINST THE JUDGMENT IN RCA 4/2019 DATED 20-06-2019 OF ADDITIONAL DISTRICT COURT - IV, KOZHIKODE** **AGAINST THE ORDER IN RCP 13/2017 DATED 12-11-2018 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **K.P.RAMSHEEDA, AGED 37 YEARS W/O. NAZAR, 23/1896B, BABAS HOUSE, PANNNIYANKARA AMSOM, DESOM, KALLAI POST, KOZHIKODE 673 003.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENT/RESPONDENT/PETITIONER:** **A.N.SAJITHA, AGED 44, D/O. LATE ABDURAHIMAN, NAGARAMCHAL, NOOLPUZHA P.O. BAITHUL SALAM, HEAD POST OFFICE, NAGARAM AMSOM AND DESOM, KOZHIKODE 673 001.** **R1 BY ADV. SRI.E.NARAYANAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev No.23 OF 2020** **2** ## **ORDER** The revision petitioner was the appellant in RCA No.4/2019 on the file of the Rent Control Appellate Authority (in short “Appellate Authority”), Kozhikode. The respondent in this revision petition was the respondent in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Kozhikode in RCP No.13/2017. The parties are for the sake of convenience, referred to as per their litigate status in the rent control petition (in short RCP) as 'petitioner' and 'respondent'. 3. The petitioner had filed the RCP against the respondent, inter alia, pleading as follows:- The petition schedule shop room (for brevity hereinafter referred to as 'shop room') belonged **RCRev No.23 OF 2020** **3** to the father of the petitioner. It was settled in her favour as per settlement deed bearing No.2848/2012 of the Chalappuram Sub-Registry Office. From the date of execution of the document, the petitioner has become the absolute owner of the shop room. The shop room was let out by the petitioner's father to the respondent as per rental agreement dated 10.6.2011. The rent was fixed at the rate of Rs.4250/- per month with an escalation clause of 10% for every three years. 4. Subsequent to the execution of the deed of conveyance, the respondent had attorned to the lease. The petitioner's father had settled the shop room in her favour, for her livelihood. After the death of the petitioner's father in 2014, the family business in timber got closed down. Thereafter, the petitioner repeatedly requested the respondent to give vacant possession of the shop room, for her bona fide need, to start a business in textile **RCRev No.23 OF 2020** **4** garments for ladies and children. However, the respondent refused to give vacant possession. In the said circumstances, the petitioner issued a lawyer notice dated 27.9.2016 demanding vacant possession of the shop room. Similarly, the respondent failed to pay the agreed rent. The respondent sent a reply notice raising all untenable contentions. The petitioner does not own or possess any vacant building, and she requires the shop room for her own bona fide need to commence the business. The petitioner has the capacity to raise an amount of Rs.5,00,000/- lakh to start the business. The respondent is not doing business in the shop room, and is not depending on the income derived from the business allegedly being conducted in the shop room. There are many vacant shop rooms in the locality. There is arrears of rent for the period from 10.12.2014 to 10.1.2017, totalling to an amount of Rs.1,32,600/-. **RCRev No.23 OF 2020** **5** Hence, an order of eviction may be passed against the respondent under Section 11(2) (b) and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'Act'). 5. The RCP was resisted by the respondent, who filed a counter statement, inter alia, pleading as follows: There is no land-owner-tenant relationship between the petitioner and the respondent. Even after the execution of the settlement deed, it was the petitioner's father who collected rent from the respondent. The settlement deed is only a sham document, and that the respondent has not attorned to the petitioner as her landowner. After the petitioner's father got laid up, it was the petitioner's brother who collected rent from the respondent. The respondent had paid a substantial amount as advance· Therefore, it cannot be said that there is any arrears of rent as alleged in the RCP. The **RCRev No.23 OF 2020** **6** petitioner's husband has not sustained any loss in the timber business as alleged. He is conducting large scale business in timber. He is also running a motor cycle sales agency. Therefore, the need projected by the petitioner is not bona fide, and it is only a ruse to evict the respondent from the shop room. The respondent is conducting the business in the shop room by appointing a Manager. It is out of the income that is derived from the business being conducted in the shop room, that the petitioner is eking her livelihood. There are many rooms in the locality which are sufficient for the petitioner to conduct her proposed business. Hence the RCP may be dismissed. 6. The petitioner was examined as PW1 and Exts.A1 to A6 were marked through her. The Advocate Commissioner was examined as PW2 and Exts.C1 to C1(j) commission report, sketch, photographs and CD were marked through her. The **RCRev No.23 OF 2020** **7** husband of the respondent was examined as RW1 and Exts.B1 series and B2 were marked through him. 7. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the shop room under Sections 11(2)(b) and 11 (3) of the Act. 8. Aggrieved by the impugned order passed by the Rent Control Court, the respondent preferred RCA 4/2019 before the Appellate Authority. The Appellate Authority by the impugned judgment dated 20.6.2019 dismissed the appeal by confirming the order of eviction passed by the Rent Control Court. 9. It is challenging the judgment passed by the Appellate Authority in RCA No.4/2019 and the order passed by the Rent Control Court in RCP No. 13/2017, that this Rent Control Revision is filed. **RCRev No.23 OF 2020** **8** 10. Heard Smt.M.Shajna, the learned counsel for the revision petitioner and Sri.Narayanan, the learned counsel for the respondent. 11. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the shop room under Section 11 (3) of the Act. According to her, the petitioner has not proved her bona fide need. It was impossible for the courts below to arrive at the impugned finding, as the need projected by the petitioner was not proved to be bona fide. The courts below have erroneously come to the conclusion in the impugned order and judgment. Similarly, the courts below have not considered that the RCP is hit by the first proviso to Section 11(3) of the Act, and that the revision petitioner is entitled to protection under the second proviso to Section 11(3) of the Act. She prayed that the revision petition be allowed and the **RCRev No.23 OF 2020** **9** concurrent findings of the courts below be set aside. 12. The question that arises for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below, ordering eviction of the respondent from the shop room under Section 11(3) of the Act. 13. It is trite law that this Court while exercising its revisional jurisdiction under Section 20 of the Act, is not bound to re-appreciate the entire pleadings and evidence on record like an appellate court. This Court is only permitted to examine the legality and correctness of the impugned judgment and order. 14. Keeping in mind the above parameters in law, we have gone through the pleadings as well as the oral testimonies of PW1,PW2 and RW1, and Exts.A1 to A6 and Exts.B1 series and B2. **RCRev No.23 OF 2020** **10** 15. The bone of contention of the respondent before the Rent Control Court was that there was no landowner-tenant relationship between the petitioner and the respondent. She strained herself by producing Ext.B1 series rent receipts to establish that the rent was paid to the petitioner's father and subsequently to her brother. The courts below after evaluating the oral testimonies as well as the documents on record came to the conclusion that the petitioner is the land owner of the shop room. 16. It is an undisputed fact that the petitioner's father had settled the shop room in her favour by way of the registered settlement deed bearing No.2848/2012. It is only the case of the respondent that the document is sham. Neither the petitioner's father or any of his legal heirs have such a case. Thus, as per the presumption in law, the petitioner is deemed to be the owner of the **RCRev No.23 OF 2020** **11** shop room. In addition to the presumption, it is seen that the respondent herself had admitted in paragraph 6 of the counter-statement that she had paid rent for the months of October and November, 2014, to the petitioner but the petitioner did not issue any receipt for the said amount. The said admission stares at the respondent. Though she made a faint attempt, after the commencement of trial, seeking leave to amend the said admission, the same was declined by the courts below. Thus, the said admission proves fatal to the respondent, and is sufficient to hold that there is landownertenant relationship between the petitioner and the respondent. The denial of title attempted by the respondent is not bona fide. Thus, it is in limine rejected by this Court. 17. Even though the petitioner had raised the ground of Section 11(2)(b) in the RCP, and the same was found in favour of the petitioner by the **RCRev No.23 OF 2020** ## **12** Rent Control Court, it was subject to the provision of Section 11(2)(c) of the Act. At the time of hearing of the RCA before the Appellate Authority, the learned counsel for the respondent submitted that he is not challenging the finding of the Rent Control Court under Section 11(2)(b) of the Act. Therefore, the only question that is to be considered is whether the petitioner is entitled for an order of eviction under Section 11(3) of the Act. 18. Going by the recitals in Ext.A2 settlement deed, executed by the petitioner's father in her favour, substantiates the fact that the petitioner's father had settled the property on her for the purpose of her livelihood. The petitioner pleaded in the RCP that she needed the shop room to start a textile business for ladies and children. She examined herself as PW1. According to her, it was her necessity to start the business in order to meet to the mounting educational expenses of her **RCRev No.23 OF 2020** **13** children. Though her husband was running a business, the same was not sufficient enough to meet to the family expenses. The respondent attempted to bring on record that the petitioner's husband was an affluent businessman doing business in timber as well as motor vehicles. It is settled law that it is not necessary that a person has to be impecunious to seek an order of eviction under Section 11(3) of the Act. The empathetic oral testimony of PW1 read with Ext.A2 settlement deed, prove that the petitioner's father had settled the property in her favour for the purpose of her livelihood. The bona fide need projected by the petitioner cannot be disbelieved. 19. It is settled law in **Deep Chandra Juneja vs Lajwanti Kathuria [ AIR 2008 SC 3095]** that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the need put **RCRev No.23 OF 2020** **14** forward by the landlord is genuine or not, and is not a ruse for eviction. 20. The Supreme Court in **Sarla Ahuja vs United India Insurance Company Ltd [(1998) 8 SCC 119],** held that when a landlord asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide. 21. Taking into consideration the law declared by the Hon'ble Supreme Court in the aforecited decisions, the pleadings and evidence on record, and the fact that the respondent has not discredited the oral testimony of PW1, we are convinced that the courts below have rightly come **RCRev No.23 OF 2020** ## **15** to the conclusion that the need projected by the petitioner is bona fide. Thus, we uphold the findings of the courts below. 22. Coming to the question whether the RCP is hit by the first proviso to Section 11 (3) of the Act, we see that the respondent has not taken up such a plea in the counter statement. He does not have a case that the petitioner has a vacant shop room suitable for the proposed business., Thus, the RCP is not hit by the first proviso to Section 11 (3) of the Act. 23. The next question that is to be considered is whether the respondent is entitled to the protection under the second proviso to Section 11 (3) of the Act which consists of two limbs. The onus of proof is on the respondent to prove that he is depending on his livelihood from the income derived from the business being carried out in the shop room. It is on record and admitted by RW1 in **RCRev No.23 OF 2020** ## **16** his oral testimony that he is conducting garment business for the last 15 years in the Kidson shopping complex also. He has also admitted that he is conducting other textile shop at P.M.Taj Road. The businesses are all being conducted by the respondent at three different places. Thus, it is only to be inferred that the respondent is not eking his livelihood from the business being carried out in the shop room. 24. As regards the second limb of the second proviso to Section 11 (3) of the Act, the Advocate Commissioner (PW2) in the commission report (Ext.C1 series), has reported that there are numerous vacant buildings in the locality which are suitable for the respondent to carry out his business. 25. The commission report has not been discredited by the respondent. The respondent has also not taken out any steps to examine any person **RCRev No.23 OF 2020** ## **17** of the locality to disprove the evidence in Ext.C1 series, that there are no vacant buildings in the locality In view of the admission by RW1 in his evidence that he is conducting business in other shop rooms and Ext.C1 series of PW2 that there are numerous buildings in the locality, we hold that the respondent is not entitled to the benefit of the second limb to the second proviso to Section 11 (3) of the Act. 26. In the totality of the facts and circumstances of the case, pleadings and evidence on record, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered eviction of the respondent under Sec.11(3) Act. We confirm the concurrent findings of the Rent Control Court in RCP 13/2017 and the Appellate Authority in RCA No.4/2019 . 27. At the said point of time, the learned **RCRev No.23 OF 2020** ## **18** counsel for the revision petitioner prayed for one year's time to vacate the shop room. The prayer was vehemently objected to by the learned counsel for the respondent. The learned counsel for the revision petitioner submitted that as the revision petitioner is carrying on business in garments, he has huge stock of garments which he purchased for the upcoming Onam festival. Therefore, the learned counsel prayed that the revision petitioner may be permitted to occupy the shop room till the end of the Onam festival, i.e., till the first week of September, 2020. 28. Having regard to the fact that the RCP was filed as early as in 2017 and the impugned order was passed by the Rent Control Court on 12.11.2018 and subsequently, RCA 4/2019 was dismissed on 20.6.2019, we feel that the revision petitioner had sufficient time to vacate the shop room. However, taking into consideration the **RCRev No.23 OF 2020** ## **19** special plea of the revision petitioner that he be permitted to continue to occupy the shop room till the end of Onam festival, we deem it appropriate to grant time to the revision petitioner till 31.8.2020, to vacate the shop room 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 on or before 31.8.2020. (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 **RCRev No.23 OF 2020** **20** vacated and the landowner will be at liberty to proceed with the execution of the eviction order. In the result, this revision petition is accordingly dismissed. Sd/- **K.HARILAL, JUDGE** ma/10/2/2020 Sd/- **C.S.DIAS, JUDGE** /True copy/ P.S to Judge