K.P. Sundaran v. Kundan Pallikkara Abooobacker; N.K. Saveena v. Kundan Pallikkara Abooobacker

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 RCREV. NO. 25 OF 2021** **AGAINST THE JUDGMENT IN RCA 21/2019 OF THE RENT CONTROL APPELLATE AUTHORITY/ADDL.DISTRICT COURT-III, KOZHIKODE RCP 64/2017 OF THE RENT CONTROLLER/MUNSIFF, VADAKARA REVISION PETITIONER/RESPONDENT/RESPONDENT:** K.P.SUNDARAN, AGED 53 YEARS S/O. APPUNNI NAMBIAR, KELOTH, KALHAYA HOUSE, P.O. MEMUNDA, VADAKARA, KOZHIKODE-673 105. BY ADVS. K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI ## **RESPONDENT/S:** KUNDAN PALLIKKARA ABOOBACKER AGED 73 YEARS S/O. MOIDU HAJI, PUTHIYEDATH HOUSE, PATHIYARAKKARA, KOZHIKODE-673 105. BY SRI.K.A.MANZOOR ALI THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01.08.2023, ALONG WITH RCRev..26/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR Nos.25 & 26 of 2021 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 RCREV. NO. 26 OF 2021** **AGAINST THE JUDGMENT IN RCA 22/2019 OF THE RENT CONTROL APPELLATE AUTHORITY/ADDL.DISTRICT COURT-III, KOZHIKODE RCP 65/2017 OF THE RENT CONTROLLER/MUNSIFF, VADAKARA REVISION PETITIONER/S:** N.K.SAVEENA AGED 41 YEARS D/O.VENUGOPALAN NAMBIAR, KELOTH, KALHAVA HOUSE, P.O.MEMUNDA, VADAKARA, KOZHIKODE-673105. BY ADVS. K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI ## **RESPONDENT/S:** KUNDAN PALLIKKARA ABOOBACKER AGED 73 YEARS S/O.MODIU HAJI, PUTHIYEDATH HOUSE, PATHIYARAKKARA, KOZHIKODE -673105. BY ADV SRI.K.A.MANZOOR ALI **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01.08.2023, ALONG WITH RCRev..25/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCR Nos.25 & 26 of 2021 3 ## **A.K. JAYASANKARAN NAMBIAR** **`&` MOHAMMED NIAS C.P., JJ** … **................................................... RCR Nos.25 & 26 of 2021** … **...........................................** **Dated this the 1[st] day of August, 2023** ## **ORDER** ## Mohammed Nias.C.P..J These revision petitions are preferred by the tenants aggrieved by the common judgment of the appellate authority reversing the decision of the Rent Control Court that rejected the petitions for eviction filed by the landlord under Section 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') In these revisions we are only concerned with the eviction granted under Section 11(3) of the Act as there was no challenge to the order of eviction passed under Section 11(2) (b) of the Act, before the appellate authority. 2. The landlord contended that his son Jamsheer is depending on him, and he intends to start a supermarket in the petition schedule shop rooms. It was resisted by the tenants stating that the landlord's son is not a dependent and that there are several vacant shop rooms in the possession of the landlord. The tenants also contended that they were also depending on the income derived from the petition schedule shop rooms and that there were no RCR Nos.25 & 26 of 2021 4 other suitable shop rooms available for them to shift. 3. The trial court jointly tried the rent control petitions taking RCP No.64 of 2017 as the lead case. PWs 1 and 2 were examined, and Exts.A1 to A12 were marked on the side of the petitioner. RW1 was examined, and Ext.B1 was marked on the side of the respondent. The trial court found that the landlord could not establish the bonafide need, and the reason for the trial court arriving at the said conclusion was that the dependant, while giving evidence as PW1, mentioned that he would involve his sister also in the proposed business as a partner and this according to rent control court was in variance with the pleadings. The trial court also held that the son for whom the need was sought was employed abroad, and therefore the contention that he required the petition schedule shop rooms for starting a business cannot hold good. The affidavit filed along with IA No.1039 of 2018 was also relied on by the trial court to hold that in the statements therein, the landlord mentioned that he and his son required the petition schedule shop rooms for a bonafide need. Finding the above to be at variance with the original pleadings and also holding that the landlord and the tenant had fixed the rent and, therefore, the landlord could not have sought eviction at least for a period of five years relying on the judgment of the Supreme Court in **Mohammed Ahmad & another v. Atma Ram Chauhan & others** (AIR 2011 SC 1940), the trial court rejected the rent control petitions. 4. The landlord challenged the same before the appellate authority, wherein it was found that the reasons the trial court gave for rejecting the RCR Nos.25 & 26 of 2021 5 petitions were not sustainable. On the question of maintainability of the rent control petitions, as fair rent was fixed on mutually agreed terms between the parties, the appellate authority found that it was not a case where a court fixed the fair rent in proceedings under the Act, and therefore the dictum in **Atma Ram Chauhan & others** (supra) cannot be accepted to hold the petitions to be not maintainable. As regards the bonafide need, the appellate court found, going by the evidence of PWs 1 and 2, that the fact that the son was abroad during the litigation cannot be taken as a ground against the bonafides, and for the said purpose, it relied on the judgment in **Lainakalillath Kooliyangal Kamarunnisa v. A.Shabeer** [2019(4) KLJ 508]. The alleged discrepancy in the affidavit filed along with IA No.1039 of 2018 was held to be inconsequential as the evidence of PWs 1 and 2 clearly established the bonafide need. As regards the contention that there was no pleading that the landlord's son also wanted to start a business in textiles in the supermarket, the appellate court found the evidence showed that the textile shop was proposed to be started in the petition schedule shop room in RCP No. 18 of 2017 the tenant of which premises had already vacated. Regarding the first proviso, the appellate court found no evidence to show that the landlord had any other shop in his vacant possession suitable for his purpose. Regarding the second proviso, the appellate court found that there was no evidence adduced by the tenant to show that he was depending on the income derived from the business in the petition scheduled shop rooms, and since both the limbs of the second proviso had to be proved by the tenant, the benefit of the second proviso was not granted to the tenant. The appellate RCR Nos.25 & 26 of 2021 6 court also found fault with the trial court's reasoning that since the tenant in RCP 65 of 2017 was running a flour mill and had installed machinery with the landlord's consent, they cannot be evicted. The appellate court rejected the said contention holding the same cannot be a reason to bar the landlord from claiming eviction. Accordingly, the appeals were allowed, and eviction was ordered, challenging which these revisions are preferred. 5. We have heard Sri.K.M.Sathyanatha Menon, the learned counsel for the revision petitioners, and Sri.K.A.Manzoor Ali, the learned counsel for the landlord/respondent. 6. We note that three reasons were given by the Rent Control Court for declining eviction under Section 11(3) of the Act. The trial court had found that there was a discrepancy in the pleadings and evidence in as much as the evidence would suggest that the landlord's need was for his dependant son to start a supermarket, whereas the evidence of PW2 showed that he would also take the help of his sister and that was not pleaded in the petitions. On going through the evidence of PWs 1 and 2, we feel that the said appreciation of the evidence by the trial court was wrong, as PW2, his son, had only stated that he would also involve his sister as a partner in the business when he starts the supermarket. We cannot find this to be a deviation from the pleadings as rightly found by the appellate authority. The trial court also placed reliance on the affidavit filed along with IA No.1039 of 2018, wherein the landlord stated that the need was for him and his son, and again the appellate authority correctly found that it was hyper-technical to say that the need was of his son RCR Nos.25 & 26 of 2021 7 alone and not of the landlord. As a matter of fact, eviction was sought by the landlord under Section 11(3) of the Act for the need of his dependant son, and therefore, it cannot be said that the statement that it was a need of the landlord and his dependant son was not wholly incorrect. At any rate, both the issues mentioned above cannot in any manner affect the bonafide of the claims preferred by the landlord. The trial court also found that going by the principles in **Atma Ram Chauhan & others** (supra), since the rent was fixed on mutually agreed terms, the landlord should not bring an action for eviction for at least a period of five years. We do not think that the said decision stated any principle like that applicable to all cases where rent was fixed between the landlord and the tenant, and in such cases, the landlord is barred from filing a petition for eviction for a period of five years. As rightly found by the appellate court, there was no fair rent fixed within the meaning of the Act in the instant case, and as such, the tenant cannot take recourse to the judgment in **Atma Ram Chauhan & others** (supra). Though the trial court did not consider the aspect of the provisos as it found against the need of the landlord, the appellate court had considered the aspect of the provisos and held that there was no evidence to show that the landlord had any building in his possession suitable for his business. Admittedly, the accounts of the tenants that showed that they were mainly dependent on the income derived from the business in the petition schedule shop rooms were not also produced, which clearly dis-entitled them to the benefit of the proviso, which mandates the tenant to prove both the limbs of the same so as to claim protection. We are in complete agreement with the finding of the appellate RCR Nos.25 & 26 of 2021 8 authority that reversed the trial court's finding. We also hold that the trial court's findings were clearly erroneous, and the appellate court rightly reversed the same. At any rate, the order of the appellate authority, we feel, is not one to be interfered with in our revisional jurisdiction under Section 20 of the Act, as the order impugned cannot be said to be either irregular, improper, or illegal. Resultantly, we dismiss these revisions. 7. At this juncture, the learned counsel for the revision petitioners sought one year to vacate the premises, which is opposed by the learned counsel for the respondent/landlord. 8. Having considered the rival submissions and taking into account the facts and circumstances of the case, we deem it appropriate to grant nine months' time, subject to the following conditions: “ (i) The respondents-tenants in the Rent Control Petitions shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule building to the petitioner-landlord within nine months from the date of this order and that, they shall not induct third parties into possession of the petition schedule building, and further they shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; RCR Nos.25 & 26 of 2021 9 (ii) The respondents-tenants in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; (iii) Needless to say, in the event of the respondents-tenants in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled automatically, and the landlord will be at liberty to proceed with the execution of the order of eviction. ” **Sd/-A.K. JAYASANKARAN NAMBIAR, JUDGE** **Sd/-MOHAMMED NIAS C.P., JUDGE** dlk 2.8.2023