M. Abdul Kader v. K. M. Sali

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 **RCRev..No. 47 of 2008** RCA.28/2005 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE) KASARAGOD RCP.NO.5/2005 OF THE RENT CONTROL COURT, KASARAGOD ## **REVISION PETITIONER/APPELLANT/RESPONDENT** M.ABDUL KADER, S/O.HAMZA BEARY, M.A.STORES, KOIPADY VILLAGE, P.O.KUMBALA, KASARAGOD TALUK. BY ADV. SRI.M.A.MANHU AND SRI.M.A.FAYAZ ## **RESPONDENT: RESPONDENT: PETITIONER** K.M.SALI, S/O.KADER HAJEE, LAND HOLDER & BUSINESSMAN, KHADEEJA MANZIL, KOIPADY VILLAGE, P.O.KUMBALA, KASARAGOD TALUK. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON 04/03/2008, PASSED THE FOLLOWING: ## **K.BALAKRISHNAN NAIR & K.T.SANKARAN, JJ.** **---------------------------------------------------R.C.Rev. NO. 47 OF 2008 B ---------------------------------------------------Dated this the 4[th] March, 2008 O R D E R** ## **K.T.SANKARAN, J** . The respondent - tenant in R.C.P.No.5 of 2005, on the file of the Rent Control Court, Kasaragod, challenges the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as `the Act'). 2. By a common order the Rent Control Court disposed of two Rent Control Petitions, namely, R.C.P.Nos.5 of 2005 and 6 of 2005, filed by the landlord against the petitioner herein and another tenant respectively. The petition schedule building involved in the present case is Door No.X/620 whereas the room involved in the connected Rent Control Petition is Door No.X/625. 3. The case of the landlord, inter alia, is that the erstwhile landlady leased out the petition schedule building to the tenant on a monthly rent of Rs.100/- on 17.6.1982 for a period of eleven months. The landlord purchased the property in the year 2002. The tenant attorned to the landlord and paid rent for one month. The rent from 1.8.2002 was kept in R.C.R. NO.47 OF 2008 :: 2 :: arrears. The bona fide need put forward by the landlord is that the building is required for the occupation of his son Imran for conducting business in chappels and other allied articles. Imran is depending on the petitioner for the purpose of the building. It is stated in the Rent Control Petition that the landlord conducts business in Door Nos.X/621 and X/622 in the same main building. He was in occupation of those rooms even before he purchased the property. The landlord had an idea to expand his business and it was carried out after he got surrender of Door Nos.X/623 and X/624 in the same building. It is stated that Imran, son of the landlord, bona fide needs to conduct business in Door No.X/620 (the petition schedule building) and proposes to store the articles in Door No.X/625 (the building involved in the connected Rent Control Petition). Though notice was sent to the tenant, he did not vacate. 4. The tenant contended that he was willing to pay the arrears of rent. It was contended that the rent was kept in arrears since the landlord refused to issue receipt for payment of rent. It is admitted that rent from 1.8.2002 fell in arrears. It was contended that the bona fide need put forward by the landlord for conducting business by Imran was not a genuine need. Imran has no intention to start any business. He is only a student. He has no experience in conducting business. It was further R.C.R. NO.47 OF 2008 :: 3 :: contended that the landlord demanded monthly rent of Rs.6,000/- for the building in question. The tenant had to reject the unreasonable request made by the landlord. It was contended that the Rent Control Petition was filed as a ruse to evict the tenant. The tenant contended that the landlord has other shop rooms in Kumbla where the petition schedule building is located. The tenant also claimed protection of the second proviso to Section 11(3) of the Act and he contended that he is depending for his livelihood mainly on the income derived from the business carried on in the petition schedule building and that there are no other suitable buildings available in the locality to shift the business. 5. Before the Rent Control Court, the landlord was examined as PW1 and his son Imran was examined as PW2. The tenant was examined as RW1. RW2 was examined on behalf of the tenant in the connected Rent Control Petition. Exts.A1 to A10 and B1 and B2 were marked in the case. 6. The Rent Control Court held that the tenant had kept the rent in arrears. During the pendency of the Rent Control Petition, the tenant deposited a sum of Rs.3,948/- towards arrears of rent. It was held that the tenant could file a petition under Section 11(2)(c) of the Act to vacate R.C.R. NO.47 OF 2008 :: 4 :: the order under Section 11(2)(b) if the arrears of rent, interest and costs are paid within the stipulated time. The Rent Control Court passed an order under Section 11(2)(b) making these observations. The Appellate Authority confirmed this finding of the Rent Control Court. The findings rendered by the authorities below under Section 11(2)(b) of the Act are legal and correct and no interference is called for in Revision. 7. As regards the bona fide need, the evidence available in the case was discussed in detail by the Rent Control Court and it was held that the need put forward is bona fide and genuine. It has come out in evidence that Imran was aged 18 at the relevant time. He was poor in his studies. He disclosed his intention to involve himself in business activities. It has come out in the oral evidence of the tenant that Imran used to assist his father in the business conducted by him. Therefore, it cannot be said that Imran has no experience in the business line, though it is not a legal requirement for granting an order under Section 11(3) of the Act. The contention put forward by the tenant is that Imran does not intend to conduct business. In his oral evidence, Imran stated that he intends to conduct business in the petition schedule building. A contention was put forward by the tenant that Imran was studying at Mangalore and that there is no likelihood of his discontinuing the studies. R.C.R. NO.47 OF 2008 :: 5 :: On analysing the evidence, the court below came to the conclusion that this is only a hearsay evidence and there is no direct evidence to arrive at the conclusion that Imran is studying at Mangalore. On an appreciation of the entire evidence on record, the Rent Control Court came to the conclusion that the bona fide need put forward is genuine. The Appellate Authority confirmed this finding of the Rent Control Court. After hearing the counsel for the petitioner and going through the order of the Rent Control Court and the judgment of the Appellate Authority, we are of the view that the authorities below have not committed any illegality or irregularity or impropriety in arriving at this finding. 8. It was contended by the tenant that the landlord has other rooms in his possession and, therefore, the first proviso to Section 11(3) of the Act would get attracted. The contention of the tenant that the landlord is having other buildings in the same locality is not established by any evidence. On the other hand, the tenant as RW1 admitted that neither the landlord nor his son Imran is in possession of any commercial building in the same locality. Ext.B1 extract of the building tax assessment register for the period 1997-1998 to 2005-2006 was produced to show that Door No.X/624 is lying vacant. This is a room in the up-stair portion. It is stated in the Rent Control Petition itself that this R.C.R. NO.47 OF 2008 :: 6 :: room was vacated by the tenant who was in occupation of that room and the landlord was doing business in that room and also in Door No.X/623 which the landlord got possession. In short, the landlord has stated that he is in occupation of four rooms and that he is using them for the purpose of his business. It is not in dispute that Door No.X/623 is put to use by the landlord. The specific case of the landlord is that Door No.X/624, which is situated in the up-stair portion is put to use for the purpose of storing the goods. RW2 has stated that the landlord is doing business in all the rooms in his possession. The entries in Ext.B1 would show that Door No.X/624 is lying vacant. The Rent Control Court considered the evidence of the landlord and also the evidence of RW2 and came to the conclusion that the landlord is doing business in all the rooms in his occupation and that no room is lying vacant. Sri.M.A.Manhu, learned counsel for the petitioner, stated that PW1 admitted in evidence that one Abbas, who was a tenant in the same building, had surrendered the room last year and that this admission was not taken note of by the courts below. It is true that PW1 stated so in evidence. But in the next sentence he has stated that the said room is also in his possession. It has come out in evidence that the landlord is occupying all the rooms and he has stated so even in the Rent Control Petition. There is no material to come to the conclusion that any room was lying vacant. It was also R.C.R. NO.47 OF 2008 :: 7 :: held that the building tax assessment register need not reflect the true state of affairs. There is overwhelming evidence to come to the conclusion that the landlord has not left any room vacant and that he is doing business in all the four rooms in his possession. The Rent Control Court rightly arrived at the conclusion that the bar under the first proviso is not attracted in the case. The Appellate Authority has rightly confirmed that finding. 9. As regards the availability of the second proviso to Section 11 (3) of the Act, it is well settled that the tenant has to establish that he is depending for his livelihood mainly on the income derived from the business carried on in the petition schedule building and that there are no other buildings available in the locality to shift his business. The Rent Control Court held in favour of the tenant in respect of the first limb of the second proviso to Section 11(3) on the ground that it was for the landlord to plead in the Rent Control Petition that the tenant has other income for his livelihood and as such he is not mainly depending upon the income derived from the business being conducted in the petition schedule building. This finding of the Rent Control Court is not fully correct in view of the decision rendered by us in **Kurian K.Kuriakose** v. **Usha Cherian and others** (2008 (1) KHC 731). However, a decision on that question is R.C.R. NO.47 OF 2008 ## :: 8 :: not necessary for the purpose of disposal of this case since the benefit under the second proviso to Section 11(3) would be available to the tenant only if he establishes both the limbs of the said proviso. The Rent Control Court held that there are other buildings in the locality and that the tenant has not discharged the burden of proof cast on him. It was held that Exts.A9 and A10 would show that there are vacant buildings in the same locality. The tenant has not taken any steps to establish that those buildings are not available or that the rent claimed for the said buildings is exorbitant. It is admitted by RWs.1 and 2 in evidence that there are several other shopping complexes near the petition schedule building. RW1 stated in evidence that he has not made any enquiries with the owners of those buildings to ascertain whether rooms are available in those buildings. Sri.M.A.Manhu, learned counsel for the petitioner, submitted that it is admitted by PW1 that the rooms mentioned in Exts.A7 to A10 are not vacant. This stray sentence in the evidence of PW1 would not offset the finding arrived at by the authorities below on a consideration of the entire evidence that there are other suitable buildings available in the locality for accommodating the business of the tenant. This finding of fact arrived at by the Rent Control Court was confirmed by the Appellate Authority. We do not find any infirmity in this finding under the second proviso to Section 11(3), as arrived at by the authorities below. The findings are rendered by the authorities below on the basis of the documentary and oral evidence in the case. The findings are findings of fact. The revisional court would not be justified in interfering with the findings of fact ## R.C.R. NO.47 OF 2008 :: 9 :: arrived at by the Rent Control Authorities. The Rent Control Revision is, therefore, liable to be dismissed. Accordingly, the Rent Control Revision is dismissed. However, taking note of the fact that the tenant is conducting business in the petition schedule building from 1982 onwards, we are of the view that a breathing time should be granted to the tenant to vacate the building. Granting of six months' time to the tenant to vacate the building would be reasonable. Therefore, we hold that the tenant shall not be evicted from the petition schedule building for a period of six months from today on condition that he shall file an unconditional undertaking before the Rent Control Court within three weeks from today undertaking to vacate the building on or before the expiry of six months and on further condition that he shall pay the arrears of rent within a period of one month from today and continue to pay the monthly rent on or before 10[th] of every succeeding month till he vacates the building. ## **(K.BALAKRISHNAN NAIR) Judge** **(K.T.SANKARAN) Judge** ahz/