Kunhikandy Muhammed Iqbal v. APM Beefathu and Pulincharchi Asootty

**RCRev.No.84 OF 2019** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** ## **RCRev..No.84 OF 2019** **AGAINST THE JUDGMENT IN RCA 75/2013 DATED 13-12-2018 OF ADDITIONAL DISTRICT COURT - II, THALASSERY** **AGAINST THE ORDER IN RCP 146/2011 DATED 23-01-2013 OF MUNSIFF COURT, THALASSERY** ## **REVISION PETITIONER/APPELLANT/1ST RESPONDENT:** **KUNHIKANDY MUHAMMED IQBAL AGED 55 YEARS S/O.KANHAY MAMMU, SHOP NO.44/280, LOGANE ROAD, THALASSERY TALUK.** **BY ADV. SRI.T.V.MAMMOOTTY** ## **RESPONDENT/RESPONDENTS/PETITIONER & 2ND RESPONDENT:** - **1 A.P.M.BEEFATHU, W/O.C.C.C.MUHAMMED, ACHARATH PARAKETT MAHAL, THALASSERY AMSOM, VADIKKAKAM DESOM, THALASSERY TALUK, PIN- 670141.** - **2 PULINCHARCHI ASOOTTY, FRESCO PAINTS AND HARWARE, MEETHALE PEEDIKA, DHARMADAM, THALASSERY, PIN- 670141.** **R1 BY ADV. ZUBAIR PULIKOOL (CAVEATOR) R1 & R2 BY ADV.BINU P.S** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02-03-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **2** ## **RCRev.No.84 OF 2019** ## ORDER ## Dias,J. The revision petitioner was the appellant in RCA No.75/2013 on the file of the Rent Control Appellate Authority (in short “Appellate Authority”), Thalassery. The respondents in this revision petition were the respondents in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Thalassery, in RCP No.146/2011. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition ( RCP) as 'petitioner' and 'respondents'. 3. The petitioner had filed the RCP against the respondents, inter alia, pleading as follows: The petitioner is the absolute owner of the petition **RCRev.No.84 OF 2019** **3** schedule building ( in short 'building') which she had let out to the 1[st] respondent with effect from 11.7.2006 for a period of six months. The parties had executed an agreement dated 11.7.2006, whereby the 1[st] respondent agreed to pay a monthly rent of Rs.1,100/-. However, the 1[st] respondent failed to pay the rent with effect from 31.12.2010. The rent is in arrears from the said date. The 1[st] respondent is not conducting any business in the building. He has sub-let the building to the 2[nd] respondent in flagrant violation of the agreement. The petitioner bona fide requires the building for conducting a tailoring shop. She has no other avocation or income. She is a qualified tailor. Her husband was employed abroad, and he has returned back to India, for good. The building owned by the petitioner's husband is in the occupation of the other tenants. The petitioner's husband has initiated steps to **RCRev.No.84 OF 2019** **4** evict the tenants from his building for the purpose of starting a ready-made shop. The petitioner and her husband do not have any vacant building in their possession to conduct the proposed business. Although the petitioner issued a registered notice to the 1[st] respondent seeking eviction, the same did not yield any result. Hence the RCP, seeking an order of eviction under Sections 11 (2), 11(4)(i) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ( in short referred to as 'Act'). 4. The 1[st] respondent filed a written objection, inter alia, contending as follows: The building was let out to the father of the 1[st] respondent decades back, on a monthly of Rs.7.50/-. The rent was periodically enhanced and the present rent is Rs.1,100/-. The allegation that the petitioner has issued a notice to the 1[st] respondent is disputed. The bona fide need projected by the petitioner is only a ruse for eviction. The petitioner and her **RCRev.No.84 OF 2019** **5** husband owns several buildings in the locality. The petitioner's only son is a Doctor practising in the Pariyarm Medical College. The petitioner's husband was employed abroad for many years and he has amassed substantial wealth. There is no need for the petitioner to start a tailoring shop as alleged in the RCP. Though a tenant named Aboobacker was evicted by the petitioner, she let out the shop room to another tenant after receiving a substantial amount as advance and on an exorbitant rate. The business being conducted by the 1[st] respondent in the building is his only means of livelihood. There are no other rooms available in the locality for the 1[st] respondent to shift his business. Hence the RCP be dismissed. 5. The 2[nd] respondent filed a separate counter statement. He denied that he is in possession of the building as alleged in the RCP. According to him, he was unnecessarily impleaded **RCRev.No.84 OF 2019** **6** as a sub tenant. He prayed that the RCP be dismissed. 6. The petitioner was examined as PW1 and Exts.A1 to A4 were marked on her side. The 1[st] respondent was examined as RW1 and Exts.B1 to B9 were marked through him. The commission report was marked as Ext.C1. 7. The Rent Control Court after evaluating the pleadings and evidence on record, partly allowed the RCP by ordering eviction of the respondents from the building under Section 11(3) of the Act. The petitioner's prayer for an order of eviction under Sections 11(2) and 11(4)(i) of the Act were rejected. 8. Aggrieved by the impugned order passed by the Rent Control Court, the 1[st] respondent preferred RCA No.75/2013 before the Appellate Authority. The 1[st] respondent impleaded the petitioner as the 1[st] respondent and the 2[nd] **RCRev.No.84 OF 2019** **7** respondent in the RCP as the 2[nd] respondent in the RCA. 9. The Appellate Court by the impugned judgment dated 13.12.2018 dismissed the appeal, confirming the order of eviction passed by the Rent Control Court. 10. It is challenging the judgment passed by the Appellate Authority in RCA 75/2013 and the order passed by the Rent Control Court in RCP 146/2011 that this Rent Control Revision is filed. 11. Heard the learned counsel for the revision petitioner and the learned counsel for the 1[st] respondent. 12. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the building under Section 11(3) of the Act. According to him, the petitioner has not proved her bona fide need for the building. The courts **RCRev.No.84 OF 2019** **8** below have erroneously analysed the pleadings and evidence and come to the wrongful conclusion that the petitioner is entitled for an order of eviction under Section 11(3) of the Act. He also argued that the courts below have not properly appreciated that the 1[st] respondent is entitled to the benefit of the provisos under Section 11(3) of the Act. According to him, the petitioner has failed to prove that the RCP is hit by the 1[st] proviso to Section 11(3) of the Act. Similarly, the courts below have not appreciated the fact that the 1[st] respondent is eking his livelihood from the income generated from his business, and is thus entitled to the protection under the 2[nd] proviso to Section 11(3) of the Act. He therefore prayed that the revision petition be allowed and the concurrent findings of the courts below be set aside. 13. The learned counsel for the 1[st] respondent on the other hand argued that the courts below **RCRev.No.84 OF 2019** **9** have rightly appreciated the pleadings and evidence on record and has arrived at the legitimate conclusion that the petitioner is entitled for an order of eviction under Section 11(3) of the Act. 14. The sole 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 respondents from the building under Section 11 (3) of the Act. 15. 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. This Court is only expected to examine the legality and correctness of the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings as well as the ## **RCRev.No.84 OF 2019** **10** oral testimonies of PW1 and RW1 and the documentary evidence that are on record, namely Exts.A1 to A4 and B1 to B9 and also Ext.C1 commission report. 16. The petitioner had filed the RCP on the ground that she bona fide needs the building to start a tailoring shop. It is not disputed that the petitioner is a qualified tailor and has experience in the said field. The respondents could not prove the availability of any other building in the possession of the petitioner to commence the proposed business. The petitioner gave evidence in tune with the pleadings wherein she proved that she bona fide needs vacant possession of the building to start the proposed business. The main defence of the 1[st] respondent was that the petitioner is a pardanashin woman, therefore, her customs prevent her from starting the business. There is nothing on record to substantiate the said **RCRev.No.84 OF 2019** ## **11** defence of the 1[st] respondent. Moreover, the petitioner while giving evidence as PW1 has proved in her oral testimony that she intends to start the proposed business. The other contention of the 1[st] respondent was that the petitioner and her husband are affluent and well placed in life. There is no need or necessity for the petitioner to start a tailoring shop. 17. The courts below have after analysing the entire pleadings and evidence on record have rightly come to the conclusion that the need projected by the petitioner is bona fide for her to start a tailoring shop. 18. It is settled law in Deep Chandra Juneja v 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 forward by the landlord is genuine or not, and that **RCRev.No.84 OF 2019** **12** the need projected is not a ruse for eviction. 19. 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. 20. It is also trite that, the tenant cannot dictate terms to the landlord. 21. In Sait Nagee Purushothaman and Co. Ltd v. Vimalabhai Prabhulai [2005 KHC 1495] , it is held that it is for the landlord to decide whether the space is sufficient for his need. Tenant cannot have a dictatorial role in that assessment of the landlord. **RCRev.No.84 OF 2019** ## **13** 22. In view of the empathetic testimony of the petitioner - PW1, that she bona fide requires the building to start a tailoring shop, and the law laid down in the above-said decisions, we are convinced that the need projected by the petitioner is bona fide. Thus, the concurrent findings of the courts below under Section 11 (3) of the Act are confirmed. 23. Coming to the question whether the 1[st] respondent is entitled to the protection under the provisos to Section 11 (3) of the Act, the law contemplates that the initial onus of proof is on the respondents to prove that the petition is hit by the first proviso to Section 11 (3) of the Act, and that they are entitled to protection under the second proviso to Section 11(3) of the Act. 24. Although the 1[st] respondent took up a contention that the petitioner has other vacant shop rooms in her possession, he miserably failed **RCRev.No.84 OF 2019** ## **14** to prove the above-said aspect. Moreover, the petitioner had given up the said contention at the time of hearing of the RCA. The Appellate Authority recorded the said submission in paragraph 18 and disallowed the petitioner's plea for the benefit under the first proviso to Section 11 (3) of the Act. In view of giving up the said contention, we are not going into the said aspect. In fact, the Rent Control Court as well as the Appellate Authority have clearly found that the defence raised by the 1[st] respondent in respect of the protection under the first proviso to Section 11 (3) of the Act does not stand attracted to the facts of the case, because it was proved that the petitioner had no vacant shop in her possession. 25. Now coming to the second proviso of Section 11(3) of the Act, it is seen from the pleadings and evidence that though the 1[st] respondent had pleaded that he is doing business ## **RCRev.No.84 OF 2019** ## **15** in paints and hardwares in the building, no documents were produced in order to substantiate his plea. The 1[st] respondent had stated that he had several documents in his possession to prove his income, but the same were not forthcoming before the courts below. 26. The Advocate Commissioner in Ext.C1 report has found that there was no business being conducted in the building. The 1[st] respondent did not file any objection to Ext.C1 report. The 1[st] respondent also did not prove that there are no other vacant shop rooms available in the locality. The Advocate Commissioner in Ext.C1 report has reported that there are other vacant buildings available in the locality. Although the 1[st] respondent was present at the time of inspection, he did not point out that there are no suitable building in the locality. In view of the aforesaid findings, we are convinced that the 1[st] respondent is not entitled to **RCRev.No.84 OF 2019** **16** the benefit of the provisos to Section 11 (3) of the Act. 27. 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 respondents from the building under Sec.11(3) Act. We confirm the concurrent findings of the Appellate Authority in RCA No.75/2013 and the Rent Control Court in RCP No.146/2011. 28. At that point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the building. Taking into consideration the fact that the RCP was filed in the year 2011, and that the impugned order was passed by the Rent Control Control as early as on 23.1.2013, and subsequently, the Rent Control Appeal was filed in the year 2013 and that the **RCRev.No.84 OF 2019** ## **17** judgment was passed on 13.12.2018, we feel that the revision petitioner has got more than sufficient time to vacate the building. 29. Having regard to the facts and circumstances of the case, we deem it appropriate to grant the revision petitioner six months' time to . vacate the building 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 within six months from today. (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 **RCRev.No.84 OF 2019** **18** granted to vacate the premises will stand automatically vacated and the landlord 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/03.03.2020 Sd/- **C.S DIAS, JUDGE** /True copy/ P.S to Judge