KUNHIPURAYIL USMAN v. JAMEELA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA,** ## **1944** ## **RCREV. NO. 255 OF 2018** **AGAINST THE ORDER/JUDGMENT DATED 31.03.2018 IN RCA NO.188 OF 2013 OF ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY CONCURRING WITH THE COMMON ORDER IN RCP NO.30 OF 2011 DATED 30.09.2013 OF MUNSIF COURT, KUTHUPARAMBA** ## **REVISION PETITIONER/APPELLAT/RESPONDENT:** **KUNHIPURAYIL USMAN, AGED 67 YEARS, S/O. ABDULLA, AGED 67, 26/77, KUNHIPURAYIL HOUSE, MANGATTIDAM AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT - 670 643. BY ADV SRI.ASHWIN SATHYANATH** ## **RESPONDENT/RESPONDENT/PETITIONER:** ## **JAMEELA,** **AGED 52 YEARS, D/O. KUNHIMOOSA HAJI, W/O. ABOOBACKER, PANOOR PEEDIKAYIL, NANGARAKATH, KOORARA, CHEMBAD, THALASSERY TALUK, KANNUR DISTRICT - 670 694. BY ADVS. P.N.SUKUMARAN AKHIL S.VISHNU** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.12.2022, ALONG WITH RCRev..280/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.Nos.255 & 280 of 2018 -: 2 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA,** **1944** **RCREV. NO. 280 OF 2018** **AGAINST THE ORDER/JUDGMENT DATED 31.03.2018 IN RCA NO.191 OF 2013 OF ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY CONCURRING WITH THE COMMON ORDER IN RCP NO.28 OF 2011 DATED 30.09.2013 OF MUNSIF COURT, KUTHUPARAMBA** ## **REVISION PETITIONERS/APPELLANTS 1 TO 5/RESPONDENTS 1 TO 5:** **1 SAKEENA, AGED 65 YEARS, W/O.LATE ABDULLA, NO OCCUPATION, KALLARAKKAL HOUSE, AMBILAD, OLD ROAD, KUTHUPARAMBA (P.O)., THALASSERI TALUK, PIN - 670 643** - **2 JASEELA,** **AGED 37 YEARS, D/O.LATE ABDULLA, NO OCCUPATION, KALLARAKKAL HOUSE, AMBILAD, OLD ROAD, KUTHUPARAMBA (P.O), THALASSERI TALUK, PIN - 670 643** - **3 NAUSHAD,** **AGED 35 YEARS, S/O.LATE ABDULLA, NO OCCUPATION, KALLARAKKAL HOUSE, AMBILAD, OLD ROAD, KUTHUPARAMBA (P.O), THALASSERI TALUK, PIN - 670 643** R.C.Rev.Nos.255 & 280 of 2018 -: 3 :- **4 SEENATH, AGED 33 YEARS, D/O.LATE ABDULLA, NO OCCUPATION, KALLARAKKAL HOUSE, AMBILAD, OLD ROAD, KUTHUPARAMBA (P.O), THALASSERI TALUK, PIN - 670 643** **5 ARSHAD, AGED 31 YEARS, S/O.LATE ABDULLA, NO OCCUPATION, KALLARAKKAL HOUSE, AMBILAD, OLD ROAD, KUTHUPARAMBA (P.O), THALASSERI TALUK, PIN - 670 643** **BY ADVS. PAVITHRAN K.V. JAYANANDAN MADAYI PUTHIYAVEETTIL** ## **RESPONDENTS/RESPONDENT & APPELLANT NO.6/PETITIONER AND R6:** - **1 JAMEELA, AGED 52 YEARS, D/O KUNHIMOOSA HAJI, W/O.ABOOBACKER, PANOOR PEEDIKAYIL, NANGARATH, KOORARA, (PO) CHAMBAD, THALASSERI TALUK, KANNUR DISTRICT** - ***2 ANSEER (ARSHAD) S/O. LATE ABDULLA, AGED 29 YEARS (WORKING IN GULF), KALLARAKKAL HOUSE, AMBILAD OLD ROAD, KUTHUPARAMBA (P.O), 670 643** ***(THE NAME AND ADDRESS OF THE SECOND RESPONDENT CORRECTED AS ARSHAD, S/O.ABDULLA, KALLARAKKAL HOUSE, AMBILAD OLD ROAD, KUTHUPARAMBA (P.O), 670 643) AS PER ORDER DATED 15.12.2022 IN I.A.NO.3/2018 IN RCR 280/2018.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.12.2022, ALONG WITH RCRev..255/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.Nos.255 & 280 of 2018 -: 4 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------R.C.Rev. Nos.255 and 280 of 2018** **----------------------------------------------Dated this the 15[th] day of December, 2022** ## **ORDER** ## **P.B.Suresh Kumar, J.** These revision petitions arise from a common order as affirmed in appeal, in two eviction petitions filed under the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) viz, R.C.P.Nos.28 of 2011 and 30 of 2011 in respect of two premises in a commercial complex. R.C.R.No.280 of 2018 arising from R.C.P.NO.28 of 2011 is by the legal representatives of the tenant therein and R.C.R.No.255 of 2018 arising from R.C.P.No.30 of 2011 is by the tenant therein. 2. R.C.P.No.28 of 2011 was filed under Section 11(3) of the Act alleging that the husband of the landlady needs the premises for running a grocery business. The premises R.C.Rev.Nos.255 & 280 of 2018 -: 5 :- consists of two rooms, one in the ground floor of the building and the other in the first floor. According to the landlady, the ground floor room is intended to be used for the business and the first floor room is intended to be used for storing goods. The legal representatives of the tenant raised objections to the eviction petition mainly contending that the need set out by the landlady is not _bona fide_ . According to them, the husband of the landlady, for whose benefit the premises is sought to be evicted, is working abroad; that he is immensely wealthy and that the need projected is therefore, only a ruse for eviction. They have also claimed the benefit of the first and second provisos to Section 11(3). 3. R.C.P.No.30 of 2011 was filed by the very same landlady under Sections 11(3) and 11(4)(iii) of the Act alleging that the husband of the landlady needs the premises for running a fruits and vegetables shop and that the tenant has, under his occupation, another premises reasonably sufficient for his requirements. As in R.C.P.No.28 of 2011, the tenant raised objections in R.C.P.No.30 of 2011 as well, mainly R.C.Rev.Nos.255 & 280 of 2018 -: 6 :- contending that the need set out by the landlady is not _bona fide_ . He also contended that he is not in possession of any other premises which could be used for his requirement for which the tenanted premises is being used. 4. The Rent Control Court, on an appraisal of the materials on record, found that the need projected by the landlady to run grocery business and fruits and vegetables business in the tenanted premises is _bona fide_ and that the tenants are not entitled to the benefits of the provisos to Section 11(3). The Rent Control Court also found that the tenant in R.C.P.No.30 of 2011 is in possession of another premises which is reasonably sufficient for his requirements. Consequently, the eviction petitions were allowed. The tenants challenged the decisions of the Rent Control Court in appeals before the Appellate Authority. The Appellate Authority, on a reappraisal of the materials on record, affirmed the decision of the Rent Control Court. The legal representatives of the tenant in R.C.P.NO.28 of 2011 and the tenant in R.C.P.No.30 of 2011 are aggrieved by the said decisions of the authorities below and R.C.Rev.Nos.255 & 280 of 2018 -: 7 :- hence, these revision petitions. 5. Heard the learned counsel for the legal representatives of the tenant in R.C.P.No.28 of 2011, the learned counsel for the tenant in R.C.P.No.30 of 2011 as also the learned counsel for the landlady. 6. The learned counsel for the legal representatives of the tenant in R.C.P No.28 of 2011 contended that the landlady and her husband are immensely rich people; that they do not intend to conduct grocery or fruits and vegetables business, and the need projected by the landlady is therefore, only a ruse for eviction. The learned counsel for the tenant in R.C.P.No.30 of 2011 endorsed the submissions made by the learned counsel for the legal representatives of the tenant in R.C.P.No.28 of 2011. In addition, he also contended that at any rate, the order of eviction in R.C.P.No.30 of 2011 under Section 11(4)(iii) is illegal. According to the learned counsel, the pleadings in the eviction petition in this regard is too vague. It is not clear from the pleadings as to whether the landlady alleges that the tenant had subsequently acquired R.C.Rev.Nos.255 & 280 of 2018 -: 8 :- another premises reasonably sufficient for his requirements or as to whether the other premises which was already in the tenant's possession at the time when the tenanted premises was taken on lease is reasonably sufficient for his requirement. It was argued by the learned counsel that no material whatsoever has been brought on record by the landlady to show that any new premises has been acquired by the tenant after the commencement of the lease arrangement and that if the case of the landlady is that the premises which was already in the possession of the tenant is reasonably sufficient for his requirement, there is no evidence on record to show that the said premises is reasonably sufficient for the purpose for which the tenanted premises was taken on lease. It was pointed out by the learned counsel that when the Commissioner appointed in the proceedings inspected the tenanted premises, the premises was not fully occupied as the same which is being used by the tenant as a godown could not then be used as a godown on account of some movement restrictions to the area and it is on the said ground that the authorities below found R.C.Rev.Nos.255 & 280 of 2018 -: 9 :- that the other premises already in the occupation of the tenant is reasonably sufficient for his requirements. According to the learned counsel, merely for the reason that the tenanted premises was not found fully occupied at the time when the Commissioner inspected the premises, it cannot be said that the same is not needed for the business of the tenant. It was argued by the learned counsel that in the absence of any material to show that there is sufficient vacant space in the premises which was already in the possession of the tenant, it cannot be said that the same is reasonably sufficient for the requirements for which the tenanted premises is taken. 7. We have considered the arguments advanced by the learned counsel for the parties on either side. 8. As noted, the _bona fides_ of the landlady in projecting the need of her husband to start a grocery and fruits and vegetables business in the tenanted premises was challenged by the tenants mainly on the ground that the husband of the landlady is working abroad and that he being a very rich person, may not conduct such businesses. Both the R.C.Rev.Nos.255 & 280 of 2018 -: 10 :- Rent Control Court as also the Appellate Authority concurrently rejected the said contention of the tenants, stating that merely for the reason that the person for whose need the tenanted premises are sought to be evicted was working abroad at the time when the eviction petitions were instituted, it cannot be said that that there is no _bona fides_ in the claim. It was categorically held by the authorities below that such claims are only natural and the same cannot be said to be not real. Similarly, it was held by the authorities concurrently that merely for the reason that a person is sufficiently affluent, it cannot be said that he cannot, or will not run a grocery or fruits and vegetables business. We do not find any illegality, irregularity or impropriety in the said findings of the authorities below calling for interference of this Court under Section 20 of the Act. It is all the more so since those are findings rendered on questions of fact based on evidence let in by the parties, as re-appreciation of evidence is not contemplated under Section 20 to examine the correctness of the findings of fact rendered by the authorities [See **Hindustan Petroleum Corpn. Ltd. v.** R.C.Rev.Nos.255 & 280 of 2018 -: 11 :- ## **Dilbahar Singh** , (2014) 9 SCC 78]. 9. Let us now deal with the arguments advanced by the learned counsel for the tenant in R.C.P.No.30 of 2011. It is seen that what is referred to by the landlady in the eviction petition for claiming eviction under Section 11(4)(iii), is the other premises which was already in the possession of the tenant at the time when he had taken the tenanted premises on lease and the materials indicate that the said case has been understood by the tenant. As such, the argument raised by the learned counsel for the tenant that the pleadings in the eviction petition as regards the claim under Section 11(4)(iii) is vague, is only to be rejected. As rightly argued by the learned counsel, there is no dispute to the fact that the tenant was occupying another premises when the tenanted premises was taken on lease. His specific case is that the tenanted premises was taken on lease to be used as a godown for the business already being carried on by him. In a case of this nature, according to us, it was necessary for the landlady to establish that the other premises in the possession of the tenant is reasonably sufficient R.C.Rev.Nos.255 & 280 of 2018 -: 12 :- for the requirements for which the tenanted premises has been taken by him. As rightly argued by the learned counsel, merely for the reason that no goods were found stored at the time when the Advocate Commissioner appointed in the proceedings inspected the tenanted premises, it cannot be inferred that the said premises is not required for the tenant. Even though the Advocate Commissioner inspected the tenanted premises where the tenant is conducting business, there is nothing in the report to indicate as to whether there is sufficient vacant space in that premises which could be used by the tenant for the requirement for which the tenanted premises was taken by him. In the absence of any such evidence, according to us, it cannot be said that ingredients of Section 11(4)(iii) are established. The decisions taken by the authorities below on the claim of the landlady against the tenant in R.C.P.No.30 of 2011 under Section 11(4)(iii) is therefore illegal, irregular and improper. In the result, R.C.R. No.280 of 2018 preferred in respect of the order in R.C.P.No.28 of 2011 is dismissed. R.C.R.No.255 of 2018 is allowed in part, setting aside the order R.C.Rev.Nos.255 & 280 of 2018 -: 13 :- of eviction, insofar as it relates to Section 11(4)(iii). Needless to say, the order in R.C.P.No.30 of 2011, insofar as it relates to Section 11(3) stands confirmed. However, the tenants are granted six months' time from today to surrender vacant possession of the premises on condition that they shall file an unconditional undertaking before the Rent Control Court within two weeks from the date of receipt of a copy this order to vacate the tenanted premises within six months and also that they shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent on or before the tenth day of every succeeding month till they vacate the premises. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **C.S.SUDHA, JUDGE.** YKB