Kunjimarakkar v Nabeeesa; James v Nabeeesa; Paul C.L. v Nabeeesa; Hamsa K.A. v Nabeeesa

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** **RCRev..No. 292 of 2016** **AGAINST THE ORDER/JUDGMENT IN RCA 91/2013 of IIIrd RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 30-06-2016** **AGAINST THE ORDER/JUDGMENT IN RCP 108/2010 of RENT CONTROL COURT, THRISSUR DATED 31-01-2013** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **KUNJIMARAKKAR, S/O.KARUPAMVEETTIL ADHAM, PERINGOTTUKKARA DESAM, THANNYAM VILLAGE, THRISSUR TALUK.** **BY ADV. SRI.DILIP J. AKKARA** ## **RESPONDENT/RESPONDENT/PETITIONER:** **NABEESA, W/O.ATTUPARAMBATH VEETTIL LATE PAREED, PERINGOTTUKKARA P.O., PAINOOR DESOM, THANNYAM VILLAGE, THRISSUR – 680 565.** **BY ADVS. SRI.M..SASINDRAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05.10.2018, ALONG WITH RCRev..291/2016, RCRev..294/2016, RCRev..295/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** **RCRev..No. 291 of 2016** **AGAINST THE ORDER/JUDGMENT IN RCA 92/2013 of IIIrd RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 30-06-2016** **AGAINST THE ORDER/JUDGMENT IN RCP 106/2010 of RENT CONTROL COURT, THRISSUR DATED 31-01-2013** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **JAMES, S/O.KURUTHUKULANGARA VEETTIL DEVASSY, PERINGOTTUKKARA P.O., PAINOOR DESAM, THANNYAM VILLAGE, THRISSUR.** **BY ADV. SRI.DILIP J. AKKARA** ## **RESPONDENT/RESPONDENT/PETITIONER :** **NABEESA, W/O.ATTUPARAMBATH VEETTIL LATE PAREED, PERINGOTTUKKARA P.O., PAINOOR DESOM, THANNYAM VILLAGE, THRISSUR-680 565.** **BY ADVS. SRI.M..SASINDRAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05.10.2018, ALONG WITH RCRev..295/2016, RCRev..294/2016, RCRev..292/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** **RCRev..No. 294 of 2016** **AGAINST THE ORDER/JUDGMENT IN RCA 93/2013 of IIIrd RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 30.06.2016** **AGAINST THE ORDER/JUDGMENT IN RCP 107/2010 of RENT CONTROL COURT, THRISSUR DATED 31.01.2013** ## **REVISION PETITIONER/APPELLANT RESPONDENT:** **PAUL C.L.,S/O. CHIRAYATH VEETTIL LONANKUTTY, PERINGOTTUKKARA DESOM,THANYAM VILLAGE, THRISSUR TALUK** **BY ADV. SRI.DILIP J. AKKARA** ## **RESPONDENT/RESPONDENT/PETITIONER :** **NABEESA, W/O. ATTUPARAMBATH VEETTIL LATE PAREED, PERINGOTTUKKARA P.O, PAINOOR DESOM, THANNYAM VILLAGE, THRISSUR - 680 565.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05.10.2018, ALONG WITH RCRev..295/2016, RCRev..292/2016, RCRev..291/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** **RCRev..No. 295 of 2016** **AGAINST THE ORDER/JUDGMENT IN RCA 90/2013 of IIIrd RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 30.06.2016** **AGAINST THE ORDER/JUDGMENT IN RCP 109/2010 of RENT CONTROL COURT, THRISSUR DATED 31.01.2013** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **HAMSA K.A. S/O. KARUPAMVEETTIL LATE ABDUL RAHMAN, PAZHUVIL WEST P.O., PAZHUVIL DESOM, KURUMBILAVU VILLAGE, THRISSUR TALUK.** **BY ADV. SRI.DILIP J. AKKARA** ## **RESPONDENT/RESPONDENT/PETITIONER:** **NABEESA W/O. ATTUPARAMBATH VEETTIL LATE PAREED, PERINGOTTUKKARA P.O., PAINOOR DESOM, THANNYAM VILLAGE, THRISSUR - 680 565.** **BY ADVS. SRI.M.SASINDRAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05.10.2018, ALONG WITH RCRev..294/2016, RCRev..292/2016, RCRev..291/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 5 **[ RCRev. 292/2016 ,RCRev..291/2016 ,RCRev..294/2016 , RCRev..295/2016 ]** ## **COMMON ORDER** ## **Harilal, J** All these revision petitions are filed challenging the legality and propriety of the common judgment whereby orders of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 are upheld by the Rent Control Appellate Authority, Thrissur in R.C.A.Nos.90, 91, 92 and 93 of 2013. The respondent/landlord in all the revision petitions is one and the same person and the revision petitioners/tenants are different persons under the said common landlord/respondent. Hence, these revision petitions are heard together and disposed of accordingly by this common order. 6 Parties are referred to as in the rent control petition. 2. According to the respondent/landlord she _bona fide_ needs the petition schedule shop rooms for starting a Mini Super Market for her children. Her only son Muhammed Raffi was working abroad and he lost his job there. Now Muhammed Raffi along with his sisters namely, Khadeeja, Rabia and Sajitha intends to start a Mini Super Market in the entire building including all the rooms in the buildings. They have already obtained vacant possession of the rooms in the first floor, and one room in the ground floor is also being kept vacant for this purpose. According to the petitioner, her children are dependants on her for the petition schedule 7 building. Neither the petitioner, nor her children have any other building of their own in their possession to start the proposed Mini Super Market. The children are having knowledge, expertise and finance to start the business. Several other vacant rooms are available in the locality for shifting the respondent's business from the tenanted premises and they are not mainly depending upon the income from the business in the tenanted premises. 3. All the respondents resisted the claim for eviction by filing common objection raising various contentions. According to them, the need alleged in the petition is not _bona fide_ and it is ruse for eviction only. The children are not on the Her son dependants petitioner. 8 Muhammed Raffi is residing abroad with his family and working there. All the children are married and settled at different places. Two among the daughters are also residing abroad with their families. Therefore, there is no need to start a new business for their livelihood and they do not want the petition schedule shop room. The respondents are entitled to get a protection under the second proviso as they are all depending mainly on the income from the business in the tenanted premises and no other buildings are available in the locality to shift their business. Thus, they prayed for dismissal of the rent control petitions. 4. On the rival pleadings both the parties adduced evidence and after considering the 9 evidence on record the court below concurrently found that the need projected in the petition is _bona fide_ , the claim for eviction is not barred by the first proviso to Section 11(3) of the Act and the respondents are not entitled to get protection under the second proviso to Section 11(3) of the Act. 5. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 6. The learned counsel for the revision petitioner/tenants advanced arguments and contended that the court below miserably failed to appreciate the evidence on record with respect to the _bona fide_ of the need in its correct perspective and the findings of the court below 10 that the need is _bona fide_ is perverse. The petitioner herself had admitted that there had been vacant possession of rooms in the first floor and one room in the ground floor. Therefore dependants could have started the proposed business in those vacant shop rooms. For the said reason, the need was not _bona fide_ and the claim for eviction was barred by the first proviso to Section 11(3) of the Act. Secondly, it is contended that Exts.B1 and B2 would show that the petitioner has renewed the lease agreement with two tenants. If the need was a _bona fide_ one, the petitioner could not have renewed the lease by Exts.B1 and B2. Thirdly, it is contended that the non examination of the son Muhammed Raffi is fatal and it would fortify their contentions 11 that the said Muhammed Raffi is working abroad and he does not require the petition schedule shop rooms. No other point has been raised before us in this revision petition. 7. Per contra, the learned counsel for the respondent/landlord advanced arguments to justify the concurrent findings of the court below that the need projected in the petition is _bona fide_ and the same is not barred by the first proviso to Section 11(3) of the Act. According to the learned counsel it has come out in evidence that the petitioner has already obtained vacant possession of the rooms in the first floor and one room in the ground floor and he had been keeping those rooms vacant for the last six years awaiting an order of eviction in all these rent 12 control petitions so as to start the Mini Super Market in the entire building. Next, it is contended that the need need not be current one and an NRI also can be desirous of starting a business in his native place to eke-out income after his retirement as the employment abroad is not permanent. According to the learned counsel, the above view is supported by the decision of this Court in _**Raveendran M.N. And Another v. V.V.Sivaprasad**_ **[2017 (5) KHC 240]** Therefore, neither the non examination of Muhammed Raffi nor the non production of his passport would negate the _bona fides_ of the need. 8. In view of the aforesaid arguments, the first point to be considered is whether the vacant 13 possession of the rooms in the first floor and one room in the ground floor could negate the _bona fide_ of the need. 9. Going by the pleadings in the rent control petitions it could be seen that, in the rent control petitions the petitioner has specifically stated that she had already obtained vacant possession of rooms in the first floor and she admitted in her evidence that she had been keeping one room vacant in the ground floor also. Thus there is no suppression of the availability of vacant rooms in the first floor and one room in the ground floor. The need in the is that her son projected petition Muhammed Raffi has lost his job abroad and he along with his sisters wanted the entire building 14 for the purpose of starting a Mini Super Market. As rightly contended by the learned counsel for the petitioner, we are also of the view that the retention of the rooms in the first floor and one room in the ground floor as vacant for the last more than six years would show their firm and sincere desire to start a Mini Super Market. It is needless to say that large area is required for starting a super market. Therefore, it cannot be said that the petitioner and her children could have started the Mini Super Market in the vacant rooms in the first floor and one room in the ground floor. Moreover, rooms in the first floor cannot be equated with the rooms in the ground floor because shops in the ground floor would fetch more business than the shops in the first 15 floor. Therefore, nobody would be daring enough to start a retail stationary business in the first floor, when there is a possibility of getting rooms in the ground floor. In short, we are of the view that the retention of the vacant rooms in the first floor and one room in the ground floor could not negate the _bona fide_ of the need and it would not fall under the first proviso to Section 11(3) of the Act. 10. Coming to the non examination of the son of the petitioner and the non production of his passport, we are of the opinion that the non examination of the son of the petitioner and the non production of his passport are irrelevant and insignificant factors in view of the legal position settled by this Court in _Raveendran M.N.'s case_ 16 _(cited supra), paragraph Nos.7, 8, 11 and 13_ reads as follows: _7. The learned Senior Counsel appearing for the tenants advanced arguments, in support of the findings of the Rent Control Court, and the learned counsel for the landlord argued conversely, in support of the findings of the Appellate Authority._ _8. Coming to the first question, let us have a look at the judicial precedents. In Madhavan v. Ramachandran, 1970 (2) ILR Ker.101, V.R.Krishna Iyer, J., as he then was, in his unique style, held that knowing that between the institution of the petition and the ultimate order from the Apex Court years pass, it will be as good as repealing the provision for eviction on the ground of bona fide need, if Courts insist on the landlords proving a present need as against a prospective but certain need. Proceedings in Court should not become tantalising tricks. Cannot the Rent Control Court take note of this subsequent event and give relief. It is not necessary that there should be a current,_ 17 _urgent need. It is enough if it is reasonably and likely to arise in near future. There is a discretion vested in the Court to depart from the general rule that the rights of the parties must be determined as on the date of institution of the action in justifiable circumstances, provided such departure will not cause injustice._ ## _9.xxxxx_ ## _10.xxxxx_ _11. In the light of the above decision, it can be concluded than an order of eviction under S.11(3) of the Act can be granted in anticipation of a bona fide need reasonably and likely to arise in future. In other words, bona fide need not be current or urgent and it can be a prospective one also._ ## _12.xxx_ _13.It is a matter of fact that generally, an employment abroad, particularly in Gulf, is always under the shadow of insecurity. When he is at the threat of termination abruptly, he may be apprehensive of his future, after returning to India. Such apprehension must be_ 18 _too much painful, if his children are at tender age and students. Similarly, a Non Resident Indian, who had spent a considerable time abroad, in his life, may be desirous of living along with his family and seeking a new avocation for livelihood in his place of residence. Such a desire cannot be said to be whimsical or fanciful. It a landlord wishes to live comfortably along with his wife and children in his native place, by doing some business in the tenanted building, neither the tenant nor the Court can compel him to squeeze himself and continue there. In such circumstances, a landlord, who had let out his shop room to others for rent, may be in need of occupying the building, after evicting the tenants, to start a new avocation. We are of the view that such a need can never be said to be one without bona fides or it is a ruse for eviction, if he succeeds in proving such a circumstance. In the light of the aforesaid decisions, a bona fide prospective need of a Non Resident Indian under Section 11(3) of the Act cannot be rejected , at the threshold, on_ 19 _the ground that he is still working abroad and the need is not a current or urgent one. Therefore, the Appellate Court is justified in reversing the findings of the Rent Control Court rejecting the claim under Section 11(3) of the Act on the finding that the need is not a bona fide one as it is not current or urgent._ 11. In view of the aforesaid decision, we find that even if the son of the petitioner, namely, Muhammed Raffi has been working abroad, he can be desirous of starting a Mini Super Market in his mother's building in anticipation of his return from the gulf country at any time as his employment abroad is not permanent. He shall not be remained idle, without any job or avocation, awaiting the finality of the rent control petitions seeking order of eviction. The need is always that of the 20 landlord and not that of the dependants as per Section 11(3) of the Act. Therefore, the examination of the landlord is sufficient to prove the genuineness of the need. The examination of the dependent was not essentially required to prove the _bona fides_ of the need, when the landlady herself has testified the _bona fides_ of the need. The court below concurrently observed that both PWs1 and 2 have spoken to the _bona fides_ of the need in their chief examination and nothing has been brought out in evidence to discredit their evidence during the cross examination. In the absence of any evidence to the contrary, we do not find any reason to take out a different view or to disbelieve the appreciation of the oral testimony 21 of PWs 1 and 2. 12. Next, the question is whether there is any illegality or impropriety in finding that Exts.B1 and B2 would not negate the _bona fide_ of the need. Exts.B1 and B2 are renewal deeds executed by two tenants in favour of the petitioner. The respondents have no case that the petitioner has let out any of the shop rooms to any other tenants after the filing of the rent control petition. On the other hand their case is that the petitioner has renewed the existing lease deed. We are of the view that renewal of licence in favour of an existing tenant, who has been occupying the building would not negate the _bona fides_ of the need, because even if the renewal deed is not executed with the existing 22 tenant, he can continue to occupy the building as tenant in holding over unless and until he is evicted by the proceedings under the Act. Therefore, unlike the creation of a new tenancy, the renewal of an existing tenancy in favour of the tenant in occupation of building would not negate the _bona fides_ of the need and we reject the said argument also. In the above analysis, we find that there is no illegality or impropriety in any of the findings whereby the court below have granted an order of eviction under Section 11(3) of the Act. This appeal fails and it is dismissed. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioners are given six months' time to vacate the petition 23 ## schedule building, on the following conditions: _(1) The revision petitioners/tenants 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 they will vacate the petition schedule shop room within six months from today._ _(2) The revision petitioners/tenants 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 granted to vacate the premises will stand automatically vacated and the respondents/landlord will be at_ 24 _liberty to proceed with the execution of the eviction order._ These revision petitions are dismissed. Sd/- **K.HARILAL, JUDGE** sd/- **ANNIE JOHN, JUDGE** AMV/01/01/2019