KUNIYIL ABDULLA v. ABDUL HARIS.K (RCRev. 217/2018 and 249/2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940 RCRev..No. 217 of 2018** **AGAINST THE JUDGMENT DATED 30-01-2018 IN RCA 5/2016 of THE RENT CONTROL APPELLATE AUTHORITY, KALPETTA** **AGAINST THE ORDER DATED 17-02-2016 IN RCP 4/2014 of RENT CONTROL COURT, KALPETTA** ## **REVISION PETITIONER/APPELLANT IN RCA/ RESPONDENT IN RCP/TENANT:** **KUNIYIL ABDULLA, S/O.MUHAMMED HAJI,AGED 67 YEARS,PINANGODE POST,KALPETTA(VIA),VYTHIRI TALUK,WAYANAD DISTRICT.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/RESPONDENT IN RCA/PETITIONER IN RCP/LANDLORD:** **ABDUL HARIS.K, S/O.KUNHABDULLA,KROANKUNNEL HOUSE,AMBILERI,KALPETTA POST,VYTHIRI TALUK,WAYANAD DISTRICT-673121.** **BY ADV.SRI.C.P..MOHAMMED NIAS CAVEATOR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28.11.2018, ALONG WITH RCRev..249/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 217 & 249 of 2018** **-:2:-** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940** ## **RCRev..No. 249 of 2018** **AGAINST THE JUDGMENT DATED 30-01-2018 IN RCA 6/2016 of RENT CONTROL APPELLATE AUTHORITY, KALPETTA** **AGAINST THE ORDER DATED 18-02-2016 IN RCP 5/2014 of RENT CONTROL COURT, KALPETTA** ## **REVISION PETITIONER/APPELLANT IN RCA/ RESPONDENT IN RCP/TENANT:** ## **KUNIYIL ABDULLA,** **S/O. MUHAMMED HAJI, AGED 67 YEARS, PINANGODE POST, KALPETTA (VIA), VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/RESPONDENT IN RCA/PETITIONER IN RCP/LANDLORD:** **SADHIK @ JAINUSADHICK S/O. KUNHABDULLA, KROANKUNNEL HOUSE, AMBILERI, KALPETTA POST, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADVS.SRI.C.P..MOHAMMED NIAS (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28.11.2018, ALONG WITH RCRev..217/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 217 & 249 of 2018** ## **-:3:-** ## **O R D E R** **[ RCRev. 217/2018 ,RCRev..249/2018 ] K.HARILAL, J.** **The revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently by the Rent Control Court as well as the Rent Control Appellate Authority under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965** _**(hereinafter referred to as 'the Act')**_ **. [The parties are referred to as in the rent control petition].** **2. According to the petitioner, he was working abroad and now he has lost his job there, and now left with no job or income. He intends to set up a business of cool bar and cafeteria in** **RCRev..No. 217 & 249 of 2018** ## **-:4:-** **the petition schedule shop room. He has no other buildings of his own in that locality, to start the proposed business. But, several other vacant buildings are available in that locality, to shift the respondent's business from the petition schedule shop room. With the aforesaid averments, the petitioner prayed for an order of eviction under Section 11(3) of the Act. Further, it is seen that the respondent is not occupying the petition schedule shop room presently. He has sub-let the room to the third parties and it is seen that the sub-lessee is conducting the business therein. Hence, he is entitled to get an order of eviction under Section 11(4)(i) of the Act also.** **3. The respondent resisted the claim for eviction under both grounds, contending that there is no** _**bona fides**_ **in the claim for eviction under Section 11(3) of the Act and the need projected is a pretext for eviction only.** **RCRev..No. 217 & 249 of 2018** ## **-:5:-** **According to him, he is depending mainly on the income derived from the petition schedule shop room and no other buildings are available in the locality to shift the business. As regards the claim for eviction under Section 11(4)(i) of the Act, he denied the allegation that he has sub-let the building to third parties and the sub-lessee is conducting business therein. According to the respondent, he himself has been conducting the medical shop business in the petition schedule shop room. Hence, he prayed for rejection of the claim for eviction under Sections 11(3) and 11(4)** **(i) of the Act.** **4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected is** _**bona fide**_ **and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. Further, it was found that the respondent** **RCRev..No. 217 & 249 of 2018** ## **-:6:-** **was not in possession of the petition schedule shop room and his brother, Latheef is conducting the business in the petition schedule shop room. Thus, the courts below concurrently passed order of eviction under both Sections 11(3) and 11(4) (i) of the Act. The legality and propriety of the aforesaid findings, whereby the courts below granted an order of eviction, have come in revision before us. No other point has been raised before us.** **5. Heard the learned counsel for the petitioner and the learned counsel for the respondent.** **6. The learned counsel for the** **respondent/tenant mainly canvassed the point that** **the findings on** _**bona fides**_ **of the need are perverse, and the evidence available on record are not sufficient to arrive at a conclusion that the need projected was** _**bona fide.**_ **There is no** **evidence to prove the pleadings that the** **RCRev..No. 217 & 249 of 2018** ## **-:7:-** ## **petitioner has lost his employment abroad and now** **he left with no job or any sources of income.** **7. It has come out in evidence that he has been working abroad at the time of filing the rent control petition and at the time of giving evidence in trial. But, the courts below have failed to appreciate the evidence on record in its correct perspective. The learned counsel further contended that the findings of the courts below on** _**bona fides**_ **of the need are not in consonance with justice, equity and good conscience contemplated under Rule 11(8) of the Kerala Buildings (Lease and Rent Control) Rules,1979.** **8. As regards the findings under Section 11(4)(i) of the Act, it is contended that the presence of the respondent's brother Latheef in the medical shop conducted by the respondent is justified by Ext.B4 licence. It is well discernible from Ext.B4 licence that the said** **RCRev..No. 217 & 249 of 2018** ## **-:8:-** **Latheef is none other than the Pharmacist of the medical shop and his presence is required for the conduct of the business in the shop room. So, his presence in the medical shop cannot be taken a determinant factor to arrive at sublease. No evidence was forthcoming to prove that he has been conducting the medical shop business. Thus, the petitioner has failed to discharge the initial burden of proof, the learned counsel contends.** **9. In view of the arguments at the Bar, the first point to be considered is, whether there is any illegality or impropriety in the findings that the need projected in the petition is** _**bona fide?**_ **It is well settled by the decision of the Supreme Court in** _**Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta**_ **[(1999) 6 SCC 222] that '** _**bona fide'**_ **is a state of mind, which should be manifested in the conduct of the landlord and the need must be real, sincere and honest. Further, the Supreme** **RCRev..No. 217 & 249 of 2018** ## **-:9:-** **Court has laid down an arm chair test, which says that a Judge of facts must be placed in the arm chair and ask the question, whether, in the given facts substantiated, the need projected in the petition is** _**bona fide**_ **or not? Bearing the aforesaid test in our mind, we have examined the materials available on record, so as to find out, whether the findings on** _**bona fide**_ **needs are perverse or not?** **10. Going by the pleadings, it is pertinent to note that the specific pleadings in the petition is that the petitioner was working abroad and he has lost his employment abroad and now, he left with no job or any sources of income and he intends to set up a cool bar business in the petition schedule shop room. It is the genesis of the need.** **11. Going by the evidence, PW.1, the petitioner himself admitted that he has returned from gulf country seven months back from the date** **RCRev..No. 217 & 249 of 2018** ## **-:10:-** **of his examination in the year 2016. If that be so, it is needless to say, at the time of filing the rent control petition in the year 2014, he was working abroad. Even if he was working abroad at the time of filing the rent control petition, he could have pleaded in such a way that he intends to leave his employment abroad to settle down in his native place and he wants to start a new business for his livelihood. But, here, he has no such case and his case is that he has lost his employment abroad. So, the** _**bona fides**_ **of the need rests on the issue, whether the petitioner has lost his employment abroad? But, going by the evidence on record, it could be seen that through out in the pleadings and evidence, the respondent stood by his definite case that the petitioner was working abroad at the time of filing the rent control petition as well as at the time of giving evidence in the year 2016. The proceedings shows that on the application** **RCRev..No. 217 & 249 of 2018** **-:11:-** **filed by the respondent under Order 11 Rule 12 of the Code of Civil Procedure, 1908, the petitioner has produced his passport before the court, to consider the issue, whether he has has lost his job abroad, at the time of filing the rent control petition, as pleaded in the petition and at the time of giving evidence. But, the Rent Control Court has not examined the passport to find out the truth, as to his pleadings on the genesis of the need.** **12. The records further shows that at the time of examination, the passport was available before the court. But, the Rent Control Court has lost sight of it and omitted to consider the same in evidence and later, the same was returned in April, 2016 to the petitioner on his application. We are of the opinion that the examination of the passport was highly essential, to test the** _**bona fides**_ **of the need projected in** **the petition.** **RCRev..No. 217 & 249 of 2018** ## **-:12:-** **13. We are fully aware of the legal position well settled by the decision of this Court in** _**Madhavan v. Ramachandran**_ **[1970(2) ILR Kerala 101] that the need can be a future need also, and the need must not be concurrent always. So also, a NRI working in gulf country can seek an order of eviction under Section 11(3) of the Act, without losing his employment abroad in anticipation of his need to start a business, when returns from gulf country.** **14. But, in the instant case, the fact is entirely different and the said proposition cannot be applied to the instant case, particularly, when specific pleadings in the rent control petition is that he has lost his job and now left with no job or income. In the above view, we find that the evidence available on record are not sufficient to arrive at a conclusion that the need projected in the petition is** _**bona fide**_ **and examination of the** **RCRev..No. 217 & 249 of 2018** ## **-:13:-** **passport of the petitioner is indispensable to find our** _**bona fides**_ **of the need.** **15. Coming to the first proviso to Section 11(3) of the Act, the respondent has no case that the petitioner has other buildings of his own in his possession, to start the proposed business and no evidence was adduced to prove the possession of any other buildings by the petitioner. Therefore, the courts below are justified in finding that the claim for eviction is not barred by the first proviso to Section 11(3) of the Act.** **16. Coming to the second proviso to Section 11(3) of the Act, we find that the courts below have found that the respondent has failed to discharge the burden of proof, as no evidence was adduced to prove the dependency on the income from the business in the tenanted premises and the non-availability of alternative buildings in the locality. But, it has come out in evidence** **RCRev..No. 217 & 249 of 2018** **-:14:-** **that the respondent is conducting a medical shop and he has employed three employees, including his own brother, as Pharmacist and an amount of more than** ` **15,000/- is required for giving salary to the said employees. But, no evidence was adduced to prove the volume of business or the quantum of income, which is being derived from the business in the tenanted premises. In the above circumstances, the petitioner can be given an opportunity to adduce further evidence, on the second proviso to Section 11(3) of the Act also. Consequently, the findings under Section 11(3) of the Act, except the findings under the first proviso to Section 11(3) of the Act, are set aside.** **17. Coming to the findings under Section 11(4)(i) of the Act, the case pleaded in the petition is that “** _**it is seen that the respondent is not occupying the petition schedule room**_ **RCRev..No. 217 & 249 of 2018** ## **-:15:-** _**presently he has sub-let the room to the third parties and it is seen that the sub-lessee is conducting business therein”**_ **. This is the sole pleadings in the rent control petition with respect to the allegation against the respondent under Section 11(4)(i) of the Act.** _**Prima facie,**_ **we find that the pleadings with respect to the claim for eviction under Section 11(4)(i) of the Act are vague. We are of the opinion that, as regards the claim for eviction under Section 11(4)(i) of the Act, the pleadings alleging sublease must be specific and the pleadings must disclose the identity of the person to whom the shop room was sub-let, without the consent of the landlord. On a cursory reading of the averments in the rent control petition itself, it could be seen that the petitioner himself is unaware of the identity of the person to whom the petition schedule shop room allegedly sub-let by the respondent.** **RCRev..No. 217 & 249 of 2018** ## **-:16:-** **18. Coming to the evidence, it is needless to say, the initial burden of proof under Section 11(4)(i) of the Act is on the landlord. If the presence of a third party in the conduct of the business is proved by the landlord, then only the burden will shift to the tenant to explain the jural relationship between the landlord and the person who was found present in the tenanted premises. In the instant case, as we have noticed above, the identity of the sub-lessee is not disclosed in the Rent Control Petitions. Therefore, it was not incumbent upon the respondent to explain the reason for the presence of his brother Latheef in the tenanted premises. It has come out in evidence by Ext.B4 that the respondent's brother Latheef was employed in the medical shop as a Pharmacist and the licence of the** **RCRev..No. 217 & 249 of 2018** ## **-:17:-** **medical shop stood in the name of the respondent himself. Thus, Ext.B4 gives the reason for the presence of Latheef in the tenanted premises. Further, we find that the presence of a Pharmacist is mandatory in a medical shop as per the “Drugs and Cosmetics Act and Rules”. Therefore, from Ext.B4 it cannot be presumed that Latheef was a sublessee of the medical shop. But the courts below have failed to consider Ext.B4 in its correct perspective. That apart, the courts below discarded Ext.B4 licence on a finding that Ext.B4 was for the period from 6.11.1982 to 31.12.1983 only. In these revision petitions, the respondent has produced the additional documents, which would show that after Ext.B4 the respondent has renewed his licence upto 31.12.2021. Merely on the reason** **RCRev..No. 217 & 249 of 2018** ## **-:18:-** **that the respondent has not produced a renewed licence it cannot be held that the respondent has stopped the business, particularly when, in Ext.C1 report, the Commissioner has reported the conduct of the medical shop in the tenanted premises. But the courts below went wrong by drawing an inference that the respondent has ceased to occupy the shop room in the absence of a renewed licence from 1983 onwards. It is pertinent to note that even in the Rent Control Petitions the petitioner has no such case. Even according to the pleadings of the petitioner, the respondent has been conducting the medical shop in the tenanted premises. In the above view, we find that the findings under Section 11(4)(i) of the Act, granting an order of eviction, are illegal as well as perverse. Hence the order of eviction** **RCRev..No. 217 & 249 of 2018** ## **-:19:-** **passed under Section 11(3) and 11(4)(i) of the Act would stand set aside.** **19. In the above analysis, the Rent Control Petition is remitted to the Rent Control Court for fresh disposal under Section 11(3) of the Act only except the findings under the first proviso. The order of eviction passed under Section 11(2)(b) and the findings under the first proviso to Section 11(3) of the Act, that the Rent Control Petition is not barred by the said proviso, would stand confirmed. The Rent Control Court is directed to pass order afresh, after affording an opportunity to both parties to adduce further evidence under the bona fide need and the second proviso to Section 11(3) of the Act only. The Rent Control Court shall dispose the case afresh at the earliest, at** **RCRev..No. 217 & 249 of 2018** **-:20:-** **any rate, within a period of three months from the date of receipt of a copy of this order. The parties shall appear before the Rent Control Court on 08[th] January, 2019.** **Sd/-** **K.HARILAL JUDGE** **Sd/-** DST/okb **ANNIE JOHN JUDGE** //True copy// P.A. To Judge