Majeed Alantavide v. Nalupurayil PuthiyaValappil Pathutty and Shuaib

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939 RCRev..No. 359 of 2017 -------------------------RCA 97/2016 of THE RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT COURT, VATAKARA DATED 27-09-2017 RCP 16/2014 of RENT CONTROLLER/ MUNSIFF COURT, VATAKARA DATED 30-01-2016 REVISION PETITIONER(S)/APPELLANT/RESPONDENT.: --------------------------------------------------------------------------- MAJEED ALANTAVIDE AGED 55, S/O ALI, PERINGADI PUTHIYAPURAIL, SAND BANKS ROAD, KOYILANDY VALAPPU, VATAKARA TALUK, KOZHIKODE DISTRICT. ## BY ADV. SRI.MOHANAN V.T.K. RESPONDENT(S)/PETITIONERS.: ------------------------------------------------- 1. NALUPURAYIL PUTHIYAVALAPPIL PATHUTTY AGED 50, W/O ABDUL LATHEEF, BAITHUL LUTHFEE, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,PIN.673101. 2. SHUAIB, AGED 25, S/O ABDUL LATHEEF, BAITHUL LUTHFEE, VATAKARA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN.673101. BY ADV. SRI.K.RAKESH ROSHAN BY ADV. SMT.THUSHARA.V THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R.359 of 2017 - - - - - - - - - - - - - - - - Dated : 10[th] November, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## Harilal, J. - 1.Concurrent findings of the courts below under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act') have come up in this revision preferred by the tenant. The parties are referred to as in the rent control petition. - 2.According to the petitioners, the son of the 2[nd] petitioner is an engineering graduate. His father was working abroad and he suffered a paralytic stroke. So he could not go back and now he is bedridden. So to earn the livelihood for his family, it became necessary for him, to have some avocation. Since the father is bedridden, he is not able to engage himself in any other employment. He bona fide needs the ## **RCR.357/17** 2 petition schedule building for starting a 'plastic recycling unit' and for the same, spacious yard and storing place are required. According to the landlady no vacant buildings of her own are available in her possession for starting the proposed business. On the other hand, several other vacant buildings are available in the locality for the occupation of the respondent. 3.The respondent opposed the claim for eviction contending that the need projected in the petition is not bona fide. It is contended that the proposed 'plastic recycling unit' cannot be started in that area since it is situated 200 metres away from sea and residential area. The 2[nd] petitioner is employed with lucrative salary and the allegation that he has no job or avocation is not correct. The 1[st] petitioner has other vacant buildings of her own, for starting the proposed business. The respondent is conducting a business of antique furniture in the petition schedule building and the said **RCR.357/17** **==> picture [7 x 9] intentionally omitted <==** business requires huge space. He is mainly depending on the income conducted in the tenanted premises and no other vacant buildings are available in the locality for shifting his business from the tenanted premises. If he is evicted his entire business will be shattered and this will affect the tourism business of the locality also. - 4.On the aforesaid rival pleadings both parties adduced evidence consisting of the oral testimony of PW1 and RW1, Exts.A1 to A4, B1 and B2 and C1 and C2. After evaluating the aforesaid evidence, the courts below found that the need projected in the petition is bona fide and the respondent is not entitled to get protection under the 2[nd] 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 respondent contends **RCR.357/17** 4 that the 2[nd] petitioner has no bona fide need as he is working abroad and in pursuance of his job, he has to return back to Gulf country. But the courts below have failed to consider his present job abroad in its correct perspective while considering the bona fide of the need. Further it is contended that even though the respondent in his evidence admitted that he is conducting an antique shop by name 'Malabar Antique' at the just opposite side, his occupation in the tenanted premises forms a part of his business in 'Malabar Antique'. Therefore his present business in 'Malabar Antique' cannot be carried on, without the tenanted premises, as the same forms a part of his business in 'Malabar Antique'. 7.Per contra the learned counsel for the respondent advanced arguments to justify the concurrent findings of the courts below on bona fides of the need. Further it is contended by the learned counsel for the respondent that even though the 2[nd] petitioner is working abroad, he **RCR.357/17** **==> picture [7 x 9] intentionally omitted <==** will come back at the time when he gets vacant possession of the tenanted premises so as to start the proposed business. He is not working permanently in Gulf country and he is ready to come back at the time when he gets the tenanted premises. 8.Therefore, the point to be considered is whether his present employment abroad would negative the bona fides of the need projected in the petition. We find that the question raised above was already considered by this court in Madhavan v. Ramachandran (1970 (2) ILR (Ker) 101) and this Court held that “knowing that between the institution of the petition and the ultimate order from Apex Court years pass, it will be as good as repealing the provision of eviction on the ground of bona fide need, if court insists on the landlords proving a present need as against a prospective, but certain need. Proceedings in court should not become clandestine trick. Can rent control court take note of this subsequent event and give relief. **RCR.357/17** 6 It is not necessary that there will be a current urgent need. It is enough, if it is reasonable and likely to arise in near future”. In the instant case, it is the specific case of the petitioners that the father of the 2[nd] petitioner is bedridden and his presence is required in the house. Therefore he intends to start a 'plastic recycling unit' in the petition schedule building. - 9.In view of the above decision, we are of the opinion that even if he is working abroad, for the time being, awaiting the availability of the tenanted premises, it cannot be said that the present employment abroad would negate the bona fides of the need. - 10.The learned counsel for the respondent further contended that his occupation in the tenanted premises forms a part of his main business in his shop by name 'Malabar Antique'. But going by the oral testimony of RW1, he himself admitted that the petition schedule building is used as a **RCR.357/17** 7 godown for storing the antique articles and also used for polishing the furniture. The said fact is further supported by evidence of PW1 as well as the report of the Commissioner. Thus, it has come out in evidence that respondent is not actually conducting any business in the petition schedule building and he is not deriving income there from. 11.The respondent himself admitted that about 50 metres away from the petition schedule building and on the opposing side of the road he has a huge business centre styled as 'Malabar Antique'. He further admitted that he is an exporter also. In Ext.C1 report, the Commissioner has reported that Malabar Antique shop also has a manufacturing unit behind it and it is a huge building having display facilities also. From the evidence on record, it is discernible that 'Malabar Antique' is the main business centre of the respondent and not the tenanted premises. **RCR.357/17** 8 12.Apart from this, he has another business in the nearby locality in the name and style 'Malabar Antique Art Gallery'. Therefore it cannot be said that his occupation in the tenanted premises forms a part of his main business and even if he is evicted from the tenanted premises, he can conduct the main business in 'Malabar Antique' by availing another space for storing and polishing the antiques, if required so. Therefore, the courts below are justified in finding that the respondent is not actually conducting any business in the petition schedule building and he is not deriving any income therefrom. The courts below are justified in finding that the respondent is not depending upon the income from the tenanted premises. - 13.As regards the availability of the protection under the 2[nd] proviso no evidence was forthcoming to prove that no other alternative buildings are available in the locality to shift the business from the tenanted premises. On the other hand, Ext.C1 report shows that other vacant buildings **RCR.357/17** **==> picture [7 x 9] intentionally omitted <==** are available in the locality. The respondent in his evidence admitted that no enquiry had been conducted as regards the availability of vacant buildings in the locality for shifting his business. In the above view the courts below are justified in denying the protection under the 2[nd] proviso to Section 11(3) of the Act. We do not find any kind of illegality or impropriety in any of the findings whereby the courts below granted an order of eviction under Section 11(3) of the Act. - 14.Having regard to the entire facts and circumstances of the case, the tenants are given eight months' time from today to vacate the petition schedule building, on the following conditions. (1). The 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 **RCR.357/17** 10 within eight months from today. (2). The tenants shall deposit the entire arrears, if any, within 45 days from day 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 landlord will be at liberty to proceed with the execution of the eviction order. **K.HARILAL Judge** **Sd/-** **A.M.BABU Judge** True Copy P.S.To Judge Mrcs/10.11