M. I. Shajahan vs. Alice @ Alice George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939** **RCRev..No. 284 of 2016 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 38/2014 of THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY-III (IIIRD ADDITIONAL DISTRICT COURT) TRIVANDRUM DATED 28.6.2016** **AGAINST THE ORDER/JUDGMENT IN RCP 73/2011 ON THE FILE OF THE ADDITIONAL MUNSIFF(RCC) COURT,TRIVANDRUM DATED 31.5.2014** **REVISION PETITIONER(S)/PETITIONER.:** **----------------------------------** **M.I.SHAJAHAN S/O. MOHAMMED ISMAIL, KUNNIL VEEDU, KURUMGANOOR MURI, KOWDIAR VILLAGE, PATTOM P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.M.SREEKUMAR** **RESPONDENT(S)/COUNTER PETITIONER.:** **----------------------------------** **ALICE @ ALICE GEORGE W/O. GEORGE JOSEPH, T.C.11/957 (2), NALANDA JUNCTION, NANTHANCODE, KOWDIAR VILLAGE, THIRUVANANTHAPURAM, PIN- 695 003.** **R1 BY ADV. SRI.GOPAKUMAR R.THALIYAL R1 BY ADV. SRI.R.B.RAJESH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & A.M.BABU, JJ.** --------------------------- ## **R.C.R. No.284 of 2016** --------------------------- _Dated this the 11[th] day of December, 2017_ ## **O R D E R** ## _**Harilal, J.**_ Revision petitioner is the landlord who is confronting with an order dismissing the Rent Control Petition which was filed under section 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”). Though he had preferred an appeal before the Appellate Authority, the Appellate Authority also confirmed the findings of the Rent Control Court as such and dismissed the appeal. Thus, concurrent findings under section 11(2)(b), 11(3) and 11(4)(ii) have come up in revision filed by the landlord. The parties are referred to as in the Rent Control Petition. 2. According to the petitioner, the rent was in arrear from January 2011 onwards. Though, he had issued a statutory notice to the respondent, the arrears of rent was not paid within the stipulated time as required in the notice and thereby he is entitled to get an order of eviction under section 11(2)(b). Further it was averred that he is an NRI and he intends to start a mobile phone 2 R.C.R. No.284 of 2016 shop with accessories business in the petition schedule shop room as it is suitable for conducting the said business. So also it was contended that the respondent has been using the shop room in an unhealthy manner so as to diminish the value and utility of the entire building. The present business is a nuisance to the neighbouring shop owners also. 3. The respondent resisted the claim for eviction under the above grounds contending that no amount was pending due to the petitioner as arrears of rent. Further it was contended that the respondent had paid an amount of Rs.3,50,000/- as security for the agreement entered between the respondent and the father of the petitioner. There was an agreement for the sale of the petition schedule shop room. As regards the bona fide need, it was contended that the petitioner is working abroad and he has not lost his job abroad. Therefore the need projected is a ruse for eviction only. The respondent is entitled to get protection under the second proviso to section 11(3) of the Act as she is mainly depending on the income from the tenanted premises and no other vacant buildings are available in the locality to shift her business from the tenanted premises. 4. On the aforesaid pleadings both parties adduced evidence and on appreciation of evidence the courts below 3 R.C.R. No.284 of 2016 concurrently rejected the claim for eviction under all the grounds and dismissed the application. 5. Coming to the findings under section 11(2)(b) of the Act, it is the concurrent finding of the courts below that the existing rate of rent was Rs.5,000/- per month. The respondent contended that the existing rate of rent was Rs.1,400/- per month only and to substantiate the said contention the respondent has produced Ext.B1 rent deed. On the other hand, the petitioner produced Ext.A4 rent deed to prove his contention that Ext.B1 is the prior rent deed which was not in force at the time of filing the Rent Control Petition. After analysing Exts.A1 to A4 the courts below found that Ext.A4 is the rent deed which was in force at the time of filing the Rent Control Petition and Rs.5,000/- was the prevailing rate of rent during that time. 6. Admittedly, no evidence was adduced by the respondent to prove that she has paid rent from January 2011 onwards. In the absence of any kind of evidence from the part of the respondent to prove payment of rent from January 2011 onwards the courts below are justified in finding that the rent was in arrear from January 2011 onwards. But, thereafter the courts below further found that an amount of Rs.3,50,000/- was paid as a security to the petitioner and his father and when such a huge 4 ## R.C.R. No.284 of 2016 amount is pending in the hands of the petitioner, as security, the arrear amount could be adjusted from the said security amount and it cannot be held that the rent was in arrear from January 2011 onwards. The courts below have placed reliance on the decision of this Court in **Reghunathan G. v. K.V. Varghese [2005 ILR (4) Ker. 113]** . In this decision, it was held that in a case where a substantial amount had been received as advance at the time of letting and when the amount of arrears of rent is smaller than the advance amount there is no default in payment of rent and the grant of eviction on the ground of arrears of rent is not justifiable. In this case, Ext.A4 shows that a sum of Rs.3,50,000/- was received as security by the petitioner and his father. In the light of the aforesaid decision the courts below are justified in rejecting the claim for eviction under section 11(2)(b) of the Act. 7. Coming to the claim for eviction under section 11(4)(ii) of the Act, it is the case of the petitioner that the counter petitioner has been using the shop room in an unhealthy manner so as to diminish its value and utility. Going by the impugned judgment as well as the order passed by the Rent Control Court, it is seen that no material evidence was adduced, by the petitioner, to prove the said contention. We are also of the opinion that the 5 R.C.R. No.284 of 2016 petitioner miserably failed to plead and prove how the respondent has used the building in such a manner as to destroy or reduce its value and utility materially and permanently. 8. Coming to the rejection of the claim under section 11 (3) of the Act, the Rent Control Court found that the need projected in the petition is bona fide and the respondent is not entitled to get protection under the second proviso to section 11 (3). But, it was also found that the claim for eviction under section 11(3) of the Act is hit by the first proviso to section 11(3) of the Act. Thus, claim for eviction under section 11(3) was rejected. But, in appeal, the Appellate Authority reversed the findings on bona fide need and held that the need projected in the petition is not bona fide one. So also the Appellate Authority confirmed the findings under the first proviso and held that the Rent Control Petition is hit by the first proviso also. But, the Appellate Authority has not arrived at any specific finding as regards the findings of the Rent Control Court under the second proviso to section 11(3) of the Act. 9. Going by the impugned judgment passed by the appellate authority, we find that the appellate authority reversed the findings of the Rent Control Court on bona fide need on the sole reasoning that the petitioner has not produced his passport 6 R.C.R. No.284 of 2016 to prove that he has lost his employment abroad and the nonproduction of the passport is fatal, in view of the specific pleadings, on which bona fide need was projected. But, the finding of the Rent Control Court was that the petitioner withstood cross-examination on bona fide need and there is no reason to disbelieve his oral testimony. In view of the rival findings on the bona fide need, we have meticulously gone through the pleadings in the rent control petition and we find that in paragraph 7 and 8 of the rent control petition, the petitioner has stated that he is an NRI and he intends to start a mobile phone shop and accessories business in the petition schedule shop room as it is suitable for conducing the said business. He has no case that he has lost his employment abroad and therefore he wants the tenanted premises to start a new business for his livelihood. In the above view, we find that the appellate authority has went wrong by misreading the pleadings in the Rent Control Petition and rendered findings on bona fide need, on the basis of an erroneous understanding of the pleadings; whereas the Rent Control Court considered the pleadings in its correct perspective and found that the need projected in the petition was proved by the oral evidence of PW1, the petitioner. The Rent Control Court further found that in fact there was no such attempt on the part of the 7 ## R.C.R. No.284 of 2016 learned counsel for the tenant to discredit his version regarding the bona fide need and PW1 withstood the cross-examination on bona fide of the need. Bona fide is a state of mind and the respondent failed to bring out any material evidence to contradict the need of the petitioner. Thus, we find that the findings of the appellate authority is unsustainable in view of the pleadings in the rent control petition and the rent control court is justified in finding that the need projected is bona fide and the said finding will stand confirmed. 10. Coming to the first proviso, in the counter statement there is no specific pleadings as to availability of vacant rooms in the possession of the petitioner. But, it has come out in evidence that the petitioner has another room of his own in his possession on the northern side of the petition schedule shop room. In order to substantiate the said contention in evidence a commission was appointed to ascertain the vacant possession of the said room in the hands of the petitioner. But, the Commissioner has reported that when he inspected the property, the said room was found closed and the petitioner has refused to open the said room stating that the said room was used for dumping waste materials. On the basis of the refusal from the part of the petitioner to open the said room so as to inspect the same by the Commissioner, the 8 ## R.C.R. No.284 of 2016 courts below had drawn an adverse inference against the petitioner under the first proviso to Sec.11 (3) of the Act. 11. But, the learned counsel for the petitioner drawn our attention to Ext C2 report and submitted that in the appeal a second commission was appointed to ascertain the availability and suitability of the said room, on the application filed by the respondent and the Commissioner has filed Ext C2 report. Though, the said report is seen marked as Ext C2 in the appellate court, the appellate authority has omitted to consider the said report, while considering the material evidence on record under the first proviso to Sec.11 (3) of the Act. We have gone through Ext C2 report also and found that even though the said commission was appointed to ascertain the suitability of the said room, the commissioner has not reported the area of the said room. It is needless to say, the alternative vacant buildings in the possession of the landlord should be reasonably suitable for starting a business as that of the petition schedule shop room. Unless the dimensions of both the petition schedule shop room and the vacant shop room in the possession of the petitioner are brought out in evidence, the suitability and sufficiency of the alternative room in lieu of the petition schedule sop room cannot be ascertained properly. In this view, we find that the evidence 9 R.C.R. No.284 of 2016 on record under first proviso to Sec.11 (3) of the Act requires a fresh consideration by the appellate authority after getting dimensions of both rooms. We further direct that the appellate authority shall remit the commission report back to the Commissioner to file a further report after ascertaining the dimensions of both rooms so as to ascertain sufficiency and suitability of the alternative shop room. 12. Coming to protection under the second proviso, the rent control court after analysing the evidence on record found that the respondent is not entitled to get protection under the second proviso. In appeal even though the appellate authority made an attempt to re-appreciate the evidence under the second proviso the appellate authority has not considered the evidence on record under the second proviso to Sec.11 (3) and no specific finding was rendered in this respect. In short, the appellate authority has not considered or re-appreciated the evidence on record under the second proviso to Sec.11 (3) properly. 13. In the above analysis, the findings of the appellate authority under the first and second proviso to Sec.11 (3) of the Act will stand set aside and appeal is remitted back to the appellate authority for fresh consideration under the first and second proviso to Sec.11 (3) of the Act only. The appellate 10 ## R.C.R. No.284 of 2016 authority shall consider the evidence on record under the first proviso to Sec.11 (3) after getting further report as to the actual plinth area of the petition schedule shop room and the other vacant room which is situated on the northern side of the petition schedule shop room. It is made clear that the finding of this Court that the need is bona fide will stand undisturbed and no enquiry need be conducted in this respect. The appellate authority shall dispose the appeal on the basis of the findings to be arrived at on the first and second proviso to Sec.11 (3) of the Act. This Rent Control Revision is disposed of accordingly. **K.HARILAL Judge** **A.M.BABU Judge** _okb/sks/11.12.2017_