M. Jameela v. K. Narayanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934** **RCRev..No. 60 of 2013 ()** **--------------------------------RCA.9/2012 of (II ADDL.DISTRICT COURT,PALAKKAD),RENT CONTROL APPELLATE AUTHORITY, PALAKKAD. RCP.1/2009 of MUNSIFF COURT, CHITTUR.(RENT CONTROLLER)** **...............** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **------------------------------------------------------------------------------** **M.JAMEELA W/O. K.SHAHUL HAMEED, PROPRIETOR, SONA MEDICALS VASANTHA COMPLEX, BIG BAZAR, KOLLENGODE TOWN CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.O,RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW** **RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------------------------------------** **K.V NARAYANAN S/O. VAYYAPURI MANNADIAR, KARNAKI NAGAR KODUVAYUR AMSOM, CHITTUR POST, CHITTUR TALUK PALAKKAD DISTRICT- 678 101.** **R1 BY ADV. SRI.BINOY VASUDEVAN R1 BY ADV. SRI.R.MANIKANTAN R1 BY ADV. SMT.P.G.BABITHA** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **`T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R.No.60/2013 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12[th]` day of March** **`, 2013`** ## **`O R D E R`** ## **`Ramachandran Nair, J.`** The tenant of a building wherein a medical shop is being conducted is the petitioner herein. The challenge is against the order passed by the Rent Control Court as confirmed by the Appellate Authority directing eviction on two grounds viz., under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the ‘Act’), in the absence of any positive evidence against the landlord. 2. The plea raised by the landlord in support of the ground under Section 11(3) of the Act is that he is not having any job and wants to run a fruit stall, cool drinks and STD Booth in the petition schedule shop room which is on the ground floor of a building complex. It was also alleged that the ground under Section 11(4)(iii) of the Act is fully attracted, as the tenant and her husband are having several vacant buildings reasonably sufficient to accommodate the business run by her. 3. We heard the learned counsel Shri O.Ramachandran Nambiar appearing for the petitioner and learned counsel Shri R.Manikandan appearing for the respondent. 4. Learned counsel for the revision petitioner raised the following arguments: **RCR No.60/2013** ## **-:2:-** (a) That an ex party Commission was taken by the landlord; the notice of the same was served only on the son of the petitioner herein; the Commissioner was not examined and that the same is an irregularity vitiating the proceedings and, therefore, the matter will have to be sent back. (b) With regard to the ground under Section 11(4)(iii) of the Act, it is submitted that the landlord has not discharged the burden to establish that the buildings said to be under the possession of the tenant are sufficient to conduct the business of drugs. It is also submitted by relying upon the third proviso of the relevant rules, namely, Rules 64(2) of the Drugs and Cosmetic Rules that in respect of an application for the grant of a licence in Form 20 or Form 21 or both,the licensing authority shall satisfy itself that the premises are of an area of not less than 10 square meters. It is therefore, submitted that the evidence is lacking on these aspects Therefore, the orders will have to be reversed. 5. Before this Court, two inter locutory applications have been filed; one filed as I.A.No.627/13 to accept the objections to the Advocate Commissioner's report and remit the commission report to the Advocate Commissioner for further enquiry and to grant reliefs as sought for. Along with I.A.No.629/2013, documents Annexures A1 to A6 have been produced which are the copies of the licences and the income tax return for three **RCR No.60/2013** ## **-:3:-** years to show that the income from the business is the main source of livelihood. 6. While opposing the pleas, the learned counsel for the respondents submitted that the argument that it was an _ex parte_ commission is not correct. The son of the tenant/revision petitioner was there in the building when the Commissioner visited the place. The evidence of RW1 will show that he was managing the business for a number of years and he alone has given the various details before the court also. Therefore, he is competent to accept the notice in lieu of the tenant. Hence, it cannot be said that it was an _ex parte_ commission. Learned counsel also submitted that before the Rent Control Court, the tenant had filed I.A.No.2341/11 for appointing a fresh Commission which was dismissed against which no appeal has been filed. It is also submitted that before the Appellate Authority also no application for Commission was filed by the tenant. Lastly it is submitted that the burden is on the tenant really to prove that the other buildings in her possession are not sufficient for the conduct of the business, for which no evidence is let in and according to the learned counsel, there is no lacuna since the initial burden has been discharged by the landlord. It is also submitted that going by the measurement of the building, it is only less than 10 sq.mts and, therefore, even accepting the pleas of the tenant, it can be seen that no prejudice has **RCR No.60/2013** ## **-:4:-** been caused to the tenant in the matter. It is also submitted that as far as the medical shop is concerned, the same will not get any protection under Section 11(11) of the Act. 7. We have considered the rival pleas. 8. The learned counsel Shri O.Ramachandran Nambiar appearing for the petitioner, by relying upon the various Judgments of this Court, namely, _**Moidu v. Lekshmi Amma**_ **[1968 KLT 699],** _**Eliyamma Chacko v. Shameem Beegum**_ **[2001 (1) KLJ 268],** _**Krishnankunju Raveendran v. Sukumara Pillai**_ **[1999 (3) KLT 373]** _**, Satheesan v. Abdul Rahiman**_ **[2003 (3) KLT 1119]** as well as _**Kunhiraman v. Kumaran**_ **[2004 (2) KLT 674]** elaborated his contentions. 9. First of the Judgments relied upon by the learned counsel for the petitioner i.e. _**Moidu’s case**_ ( _supra_ ) where the aspect considered is one relating to the requirement to issue notice before inspection by the Commissioner to the parties. This Court took the view that notice to be given is a wholesome principle of natural justice, it is imperative. 10. In a matter like this where the evidence on behalf of the tenant is given by the son of the tenant as RW1 who has also admitted that he is conducting the business for the tenant and he was present in the building at the time of inspection and received the notice and also that they are residing together, we do not find any infirmity in the matter. Apart from the **RCR No.60/2013** ## **-:5:-** same, no objection was raised before the Rent Control Court also in the matter. Hence, it cannot be strictly said that there is any absence of any notice to the tenant. We are of the view that the same has not vitiated the proceedings herein. As far as the objection to the said report raised before this Court now, it will not be proper for this Court to act upon it while sitting in revision. The legality and regularity of the proceedings in the matter which, alone come up before the revisional court for consideration. The tenant has not taken up the present pleas before the Rent Control Court or the Appellate Court at the right time. I.A.No.2341/11 which was filed by the tenant before the Rent Control Court for deputing a Commissioner was dismissed and the said dismissal has attained finality also. Therefore, at this stage, we will not be right in remitting the matter for giving an opportunity to the tenant to adduce further evidence by way of appointment of the Commissioner to find out whether the buildings in possession of the tenant are sufficient to conduct business. There is no plea that sufficient opportunity to adduce evidence, was not granted. 11. We were taken to the pleas raised by the tenant in the counter statement filed before the Rent Control Court by the learned counsel for the respondent. It is submitted by referring to the pleadings that the pleas raised by the tenant therein are not specifically on this issue. None of the details in respect of the buildings have been projected to show that they **RCR No.60/2013** ## **-:6:-** are insufficient for the purpose of the tenant. It is also stated that it has come out in evidence when RW1 was examined that there are at least 20 rooms including one in a shopping complex owned by the father of RW1. Of course, the initial burden is on the landlord, that the tenant has in her possession a building, going by the principles adopted by this Court in the Judgment relied upon by the learned counsel for the petitioner, viz. _**Kunhiraman v. Kumaran**_ **[2004 (2) KLT 674]** . Herein, the landlord has discharged the burden by taking out a Commission, where the Commissioner has noted seven buildings and at the time of evidence it has come out that they are in possession of the 20 buildings. The details of the rooms like its measurements and other data are matters within the special knowledge of the tenant. The Appellate Authority in para.12 has referred to the report of the Commissioner to the effect that the buildings belonging to the appellant available in the town are reasonably sufficient for her requirements, and thus confirmed the finding of the Rent Control Court. Therefore, we find that the learned counsel for the respondent is right in submitting that having not attempted for adducing any evidence, at this belated stage the tenant cannot be permitted to seek for a remission of the matter for appointing the same Commissioner or another Commissioner. We reject the said plea raised by the learned counsel for the petitioner. **RCR No.60/2013** ## **-:7:-** 12. As far as the _bona fide_ need pleaded by the landlord is concerned, the evidence is to the effect that the landlord wants the building for conducting a fruit stall, cool drinks and STD Booth. Both the authorities have discussed the evidence and found that there is nothing in evidence which negates the plea of the landlord. Admittedly, he is not having any other business. Learned counsel for the revision petitioner submitted that evidence is to the effect that he is having income from agriculture. But law does not prohibit conduct of a business by a person who really aspires for doing the same even if he is engaged in agriculture. The agricultural land is having an extent of 2[1] /2 acres only which is a paddy land. It was also spoken to by him that sufficient income is not available from it. Therefore, we agree with the said findings also. 13. In the light of the above discussion, we find no reason to interfere with the orders passed by the authorities below. The revision petition is dismissed. 14. At this stage, the learned counsel for the petitioner sought for one year’s time to vacate the premises since it is pointed out that for shifting the business of a medical shop, so many steps will have to be completed and a suitable place will have to be found out. 15. Learned counsel for the landlord opposed the plea for extension of time by one year by the tenant. **RCR No.60/2013** ## **-:8:-** 16. On the facts and circumstances of this case, we are granting six months time from today to vacate the premises. The arrears of rent if any will be deposited within one month from today. The petitioner will undertake to vacate the premises within the period provided by this Court and, accordingly, an affidavit will be filed before the execution court within a period of one month. If any of the conditions are violated, the petitioner will not be entitled for the benefit of this Order. The petitioner will continue to pay the amount equal to the monthly rent for the remaining period upto the date of vacating the building for use and occupation of the same. Sd/- ``` (T.R. Ramachandran Nair, Judge.) ``` Sd/- ``` (A.V. Ramakrishna Pillai, Judge.) ``` ## **`ms`**