Kunhammad (deceased) v. Abdurahiman and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 21ST DAY OF AUGUST 2017/30TH SRAVANA, 1939** **RCRev..No. 300 of 2016 (E) --------------------------** **AGAINST THE JUDGMENT IN RCA 94/2014 of RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT COURT, VATAKARA DATED 5/7/2016** **AGAINST THE ORDER IN RCP 36/2013 of RENT CONTROL COURT/MUNSIFF COURT, NADAPURAM DATED 9/6/2014** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **-------------------------------------------** ***1. KUNHAMMAD,** _**(DIED)**_ **AGED 72 YEARS, S/O ABDULLA, OTHAYOTH (H), SANTI NAGAR, VELOM (P.O), KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT. (ADDL. P2 TO 6 IMPLEADED)** **Addl. P2. PATHU WIFE OF LATE KUNHAMMAD, OTHAYOTH HOUSE, SANTI NAGAR, VELOM (PO), KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN CODE-673508. Addl.P3. HARIS SON OF LATE KUNHAMMAD, OTHAYOTH HOUSE, SANTI NAGAR, VELOM (PO), KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN CODE-673508 Addl.P4. SHANIBA DAUGHTER OF LATE KUNHAMMAD, OTHAYOTH HOUSE, SANTI NAGAR, VELOM (PO), KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN CODE-673508 Addl.P5. SALEENA DAUGHTER OF LATE KUNHAMMAD, OTHAYOTH HOUSE, SANTI NAGAR, VELOM (PO), KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN CODE-673508. Addl.P6. SALAM SON OF LATE KUNHAMMAD, OTHAYOTH HOUSE, SANTI NAGAR, VELOM (PO), KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN CODE-673508. (....2)** **RCRev..No. 300 of 2016 (E)** **2** **(DEATH OF THE SOLE PETITIONER IS RECORDED AND ADDL. PETITIONERS 2 TO 6 ARE IMPLEADED VIDE ORDER DATED 6/1/17 IN IA 2993/16)** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR** **SRI.P.GOPINATH MENON SRI.BENNY P.THOMAS SRI.JOHN MATHAI K. SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.B.DEEPAK** **RESPONDENT(S)/RESPONDENTS/PETITIONERS:** **--------------------------------------** ## **1. ABDURAHIMAN,** **S/O IBRAYI, AGED 52 YEARS, THERUVATH KOORINTVIDA (H), KUTTIADY AMSOM, THONDIPOYIL DESOM, KUTTIADY P.O, VATAKARA TALUK.** **2. ABDUL RAZAK, S/O IBRAYI, AGED 41 YEARS, THERUVATH (H), KUTTIADY AMSOM, THONDIPOYIL DESOM, KUTTIADY P.O, VATAKARA TALUK.** **3. ASIYA, W/O AMMAD, AGED 46 YEARS, THERUVATH KARAMBIL (H), KUTTIYADI AMSOM DESOM, VATAKARA TALUK.** **4. ASMINA, D/O AMMAD, AGED 31 YEARS, THERUVATH KARAMBIL (H), KUTTIYADI AMSOM DESOM, VATAKARA TALUK.** **5. AFSAL S/O AMMAD, AGED 27 YEARS, THERUVATH KARAMBIL (H), KUTTIYADI AMSOM DESOM, VATAKARA TALUK.** **6. HASEELA, D/O AMMAD, AGED 24 YEARS, THERUVATH KARAMBIL (H), KUTTIYADI AMSOM, THONDIPOYIL DESOM, KUTTIYADI P.O, VATAKARA TALUK.** **R1-R6 BY ADVS. SRI.U.K.DEVIDAS SRI.K.K.ANIL RAJ** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15-06-2017, THE COURT ON 21-08-2017 PASSED THE FOLLOWING:** ## **OKB** K.HARILAL & P. SOMARAJAN, JJ. --------------------------R.C.R. No.300 of 2016 --------------------------Dated this the 21[st] day of August, 2017 ## O R D E R ## **Harilal, J.** The revision petitioner, who is the tenant in the rent control proceedings, has come up before this Court in revision challenging the order of eviction concurrently passed against him under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act 1965, (for short “the Act”). This revision is filed mainly on the ground that the landlords have not pleaded or proved the availability of the other vacant rooms in their possession and special reasons for not occupying those two vacant rooms. But the courts below miserably failed to consider the said point in its correct perspective. 2. Heard the learned counsel for the revision petitioner and the learned counsel appearing for the respondents. RCR.300/16-E :2: 3. According to the landlords, the second petitioner bona fide needs the petition schedule shop room for starting a ready-made shop so as to eke out livelihood for his family. Apart from the petition schedule shop room no other suitable rooms are available in their possession to start the above said business. 4. The tenant resisted the claim for eviction contending that the bona fide need is a ruse for eviction and vacant rooms are available in the possession of the landlords. The learned counsel for the tenant vehemently contended that it was obligatory on the part of the landlords to plead and prove the availability of other vacant rooms, if any, in their possession and the absence of pleadings and proof, thereunder, of special reasons is fatal to the Rent Control Petition. 5. This Court has meticulously considered the pleadings and found that in the Rent Control Petition itself the landlords have specifically averred that they have RCR.300/16-E :3: another vacant room in their possession just behind the petition schedule shop room; but that shop room has no frontage or vicinity from the main road. That apart, the passage leading to that shop room is very narrow. Thus, the said vacant room situated just behind the petition schedule shop room is not suitable for conducting a readymade garments business. In view of the specific averments admitting the possession of vacant room and special reasons for not occupying the same, we reject the contention that the landlords have not pleaded the availability of vacant room in their possession and they willfully suppressed the same. In the above context, the decision of this Court in **Kunhamina K. v. V.K.T.Aboobacker Haji [2016 KHC 639]** assumes significance and relevancy, which is held as follows: “11. So it is clear from the above dictum that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before Court and he had given special reasons for not occupying the same and RCR.300/16-E :4: both parties have adduced evidence on this aspect understanding the case of each other, then no prejudice will be caused to the tenant on account of the non disclosure of this fact in the rent control petition and it is for the Court to consider the suitability or otherwise of the building so as to deny eviction on the ground of bonafide need.” 6. In view of the legal position settled by this Court also, we find that the question raised before us requires no fresh consideration at all in this revision, as the legal position stands settled by this Court relying on the decision of the Supreme Court in **M.L.Prabhakar v. Rajiv Singal [(2001) 2 SCC 355].** When applying the above proposition also to the instant case, we find that both parties have understood the availability of disputed rooms in the possession of the landlords, in its correct perspective and contested the Rent Control Petition hotly, by adducing evidence. In short, no prejudice was caused to the tenant for want of pleadings. 7. Coming to the merits of the case, it is the specific RCR.300/16-E :5: case of the tenant that the landlords are in possession of another vacant room just behind the petition schedule shop room and other two rooms in the upstairs. Going by the Commission Report, it has come out in evidence that as rightly admitted by the landlords in their pleadings itself, that a vacant room bearing door No.390 is situated behind the petition schedule shop room, bearing door No.389 and the western shop room, bearing door No.388, wherein the second petitioner is conducting footwear business. The said vacant room has no entrance to the petition schedule shop room. But, it has entrance to door No.388, in which the second petitioner is conducting footwear business. Obviously, as stated by the landlords, in the Rent Control Petition itself, the said shop room bearing door No.390 has neither road frontage nor vicinity and it has a narrow passage only from the road. In the above view, we find that the landlords have satisfactorily given a special reason, for not occupying the room bearing door No.390, which is RCR.300/16-E :6: situated just behind the petition schedule shop room. Needless to say, nobody would start a new business, in a shop room, having no road frontage or direct access and the landlords are justified, in not occupying the same for starting a ready-made garments business. 8. Coming to the shop rooms in the upstairs, the Commissioner has reported in Ext.C1 Report that the two rooms in the upstairs are being used as godown for dumping of the waste of the bakery, which is being conducted by the petitioners 4 to 6, in the room bearing door No.391, situated in the ground floor. We are of the opinion that nowadays godown and place for dumping of waste are required, for bakery business to keep the shop hygiene. However, the Commission Report shows that the said rooms are not vacant rooms. Even if those rooms in the upstairs are vacant, the landlords can be justified in not occupying the said rooms for starting a ready-made garments business, as the ground floor is always more RCR.300/16-E :7: desirable and attractive, for conducting a ready-made retail business than shop rooms in the first floor. More over, the staircase leading to the upstairs is a narrow one having 1.5 metres width only. The above view is justified by the Apex Court in **Dhannalal v. Kalawatibai and others [2002 (6) SCC 16]** . In the said decision, the Apex Court observed that a shop room on the first floor cannot be as suitable as one on the ground floor. 9. On the above analysis, we find that the landlords have succeeded in giving special reasons for not occupying the rooms which were kept in their possession at the time of filing the Rent Control Petition. Consequently, the courts below are justified in finding that the bona fides of the need is not hit by the first proviso to Section 11(3) of the Act. There is no illegality or impropriety in the impugned judgment and this Rent Control Revision is dismissed accordingly. 10. At last, the learned counsel for the revision RCR.300/16-E :8: petitioner sought for some time to surrender the petition schedule shop room. The learned counsel for the respondents opposed the said request. But, this Court is of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule shop room, on terms. The revision petitioner shall surrender the petition schedule shop room within six months from today provided that he could comply the conditions given below within the specified time. - i) The revision petitioner 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 three weeks from the date of receipt of a copy of this order. - ii) The revision petitioner shall pay entire arrears of rent to the respondents or deposit the same before the Execution Court within three weeks from the date of receipt of the copy of this order and he shall continue to pay rent without default. RCR.300/16-E :9: - iii) In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the respondents will be at liberty to proceed with the execution. Sd/- K.HARILAL, Judge. Sd/P.SOMARAJAN, Judge. okb. //True copy//