M.K. Mansoor & Others v. Kallingal Mariyam & Ashraf

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 RCRev..No.415 of 2011 (D) -----------------------------RCA.74/2009 of ADDL. DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, VADAKARA RCP.36/2008 of MUNSIFF COURT/RENT CONTROL COURT, VADAKARA .................... ## REVISION PETITIONERS/APPELLANTS/RESPONDENTS ------------------------------------------------------------ 1. M.K.MANSOOR, S/O.MUHAMMED HAJI, AGED 45 YEARS MERCHANT, SUBAIDA MANZIL, VATAMARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. M.K.SHAMSHEER, S/O.MUHAMMED HAJI, AGED 40 YEARS MERCHANT, SUBAIDA MANZIL, VATAKARA AMSOM DESOM, VATAKARA TALUK. 3. M.K.SHAMEER, S/O.MAHAMOOD HAJI, MERCHANT SUBAIDA MANZIL, VATAKARA AMSOM DESOM, VATAKARA TALUK. 4. M.K.SUNEER, S/O.MUHAMOOD HAJI, MERCHANT SUBAIDA MANZIL, VATAKARA AMSOM DESOM, VATAKARA TALUK. BY ADV. SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA ## RESPONDENT(S)/RESPONDENTS/PETITIONERS: ----------------------------------------------------- 1. KALLINGAL MARIYAM, D/O.HUSSAIN, AGED 54 YEARS, RESIDING AT VAYARELI, THODANNUR POST, THODANNUR AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673108. 2. ASHRAF, S/O.IBRAYI HAJI, RESIDING AT VAYARELI, THODANNUR POST, THODANNUR AMSOM DESOM, VATAKARA TALUK-673108., KOZHIKODE DIST. - 673108. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. -----------------------------------------------R. C. R. No.415 of 2011 -----------------------------------------------Dated this the 21[st] day of November, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenants being the legal heirs of a deceased tenant are the revision petitioners who are 4 in number. The revision petitioners were sought to be evicted on the ground under sub Section 3 of Section 11. The need projected was that the 2[nd] respondent/2[nd] petitioner in the RCP wants to conduct stationery business in the petition schedule building which is adjacent to the room where his mother the 1[st] respondent/1[st] petitioner in the RCP is conducting vegetable business. The bona fides of the need was disputed. It was contended that the Rent Control Petition has been instituted to wreak vengeance on the tenants as the tenants were successful in a civil litigation which was lodged against them by the landlady. It was also contended that the RCP was liable to fail by virtue of the first proviso to sub section 3 of R. C. R. No.415 of 2011 -2- Section 11. It was further contended that the tenants are entitled to the protection of the second proviso to sub section 3 of section 11. 2. On evaluating the evidence adduced by the parties consisting of Exts.A1 to A6, B1 to B4, C1 Commission Report and the oral evidence of PW1 and RW1, the Rent Control Court came to the conclusion that the need projected in the Rent Control Petition stands established as a bona fide one. It was also concluded that the RCP was not liable to fail by virtue of either the first or the second proviso to sub Section 3 of Section 11. Accordingly, order of eviction was passed under Section 11(3) against the revision petitioner. The revision petitioners carried the matter in appeal to the Rent Control Appellate Authority. The Appellate Authority made a re-appraisal of the evidence and concurred with all the findings of the Rent Control Court. Accordingly, the appeal was dismissed. 3. In this revision under Section 20, various grounds are raised assailing the judgment of the Appellate Authority. R. C. R. No.415 of 2011 -3- Very extensive submissions were addressed before us by Sri.K.Lakshminarayanan, the learned counsel for the petitioner. Sri.Lakshminarayanan submitted that the bona fides being a statement of mind it was Sri.Ashraf, the 2[nd] respondent who could have given responsible evidence as to the bona fides of the need. Sri.Ashraf was never examined as a witness. His mother cannot be a proper substitute for Ashraf. Drawing our attention to an additional document produced in the revision along with I.A.2485/11 [the copy of the Central Population Registration (CPR) No.690208626 pertaining to Sri.Ashraf Kallingal (the 2[nd] respondent in the RCR)], it was submitted that the version of PW1 that her son is presently having only a temporary job and is sure to come back was not true. The document will show that he is permanently employed as a Purchasing Executive with a company by name Salahuddin Softech Solution. According to the learned counsel, the revision petitioner was able to obtain a copy of this document only recently and this document will cut the very root of the bona fides of the need R. C. R. No.415 of 2011 -4- projected. Sri.Lakshminarayanan submitted that at any rate the Rent Control Petition is bad for non-joinder of necessary parties. Business is being conducted in the building jointly by Sri.M.K.Shameer, the 3[rd] revision petitioner and his brother M.K.Abdul Khader. Due to the non-joinder of M.K.Abdul Khader prejudice has been caused to the person conducting business as he was deprived of an opportunity to claim the benefit of the second proviso. Sri.Lakshminarayanan further submitted that it is in evidence that even the licence pertaining to the vegetable shop stands in the name of Sri.Ashraf. Nothing prevented Sri.Ashraf from conducting vegetable shop himself. The learned counsel also submitted that it is in evidence that the first floor of the building is remaining vacant. If there was any genuine need Ashraf could have started business in the first floor even. The learned counsel concluded by submitting that it is to be ensured by this Court that Sri.Ashraf comes down and conducts business lest a situation sould arise that a tenant has been evicted not for a genuine need. R. C. R. No.415 of 2011 -5- 4. We have given our anxious consideration to all the submissions of Sri.Lakshminarayanan. We have gone through the judgment of the Appellate Authority and the order of the Rent Control Court. As directed by us Sri.Lakshminarayanan has read over to us the testimony of PW1, the mother. We have carefully gone through the new document produced by the petitioner as well as copy of the passport which had been produced by the respondent before the Rent Control Court. It is not a hard and fast rule that in all cases where eviction is sought for occupation by a particular person the needy person himself should give oral evidence. In the instant case, PW1 is not a stranger. She is the mother of the needy person Ashraf. We find from her evidence that despite cross examination her version regarding the genuine need of her son to occupy the building and conduct business stands unshaken. Two fact finding authorities have appreciated and re-appreciated the evidence and come to the concurrent conclusion that the need projected by the respondents is a bona fide one. Unlike R. C. R. No.415 of 2011 -6- other cases where landlord or landlady seeks eviction for accomplishing the need of a dependent son in the present case Ashraf himself figured as a petitioner. According to us, it is sufficient that one of the two petitioners in the RCP gave evidence. As already stated PW1's evidence was an inspiring one which inspired confidence in the mind of not only the Rent Control Court but also the Appellate Authority which under the statutory scheme is the final court on facts. The revision petitioners claimed the protection of the first proviso on the basis of the first floor portion of the subject building itself. We find that before the learned Rent Control Court the revision petitioner expressed his unwillingness to shift his business to the above first floor portion. It is apparent that the respondents had a special reason for insisting on getting possession of the petition schedule building itself for conducting proposed business. 5. Now coming to the question as to whether the tenants are eligible for the protection of the second proviso to sub section 3 of Section 11 and the contention that the R. C. R. No.415 of 2011 -7- RCP is bad for non-joinder of a necessary party by name Sri.M.K.Abdul Khader, we are not at all impressed by the contention that the petition is bad for non-joinder of Sri.M.K.Abdul Khader. Admittedly and evidently the original tenant was the father of the revision petitioners. The tenancy which devolved upon the revision petitioners is a joint tenancy consisting of all the legal heirs. That joint tenancy is substantially represented by the revision petitioners. If any one of the legal heirs of the deceased tenant is disqualified for the benefit of the second proviso the said disqualification will affect the other legal heirs as the tenancy is a joint tenancy. At any rate, we do not find any infirmity about the finding concurrently entered by the two statutory authorities that the tenants are not entitled for the protection of the second proviso. The above finding is unimpeachable in view of the principles laid down by the Full Bench of this Court in _Francis v. Sreedevi Varassiar (2003(2) KLT 230)_ and by the Supreme Court in _Kunhamma v. Akkali Purushothaman (2007(3) KLT 99)_ . Coming to the new R. C. R. No.415 of 2011 -8- document produced in this revision, we do not think that this document even if it was on record as an item of evidence would have improved the revision petitioner's case, in the light of the endorsement in the passport to the effect that the permanent visa on the strength of which Sri.Ashraf went abroad has been cancelled. As already stated the evidence of PW1 that her son is presently working on a temporary visa was quite inspiring. At the same time, in view of the fervent submission of Sri.Lakshminarayanan made in the context of new document, we are incorporating sufficient safeguards which will ensure that Sri.Ashraf, the 2[nd] respondent will come down to Vatakara and personally conduct the proposed business in the petition schedule building. 6. The result of the above discussion is therefore as follows:- All the findings entered by the Rent Control Appellate Authority are confirmed. The order of eviction passed under Section 11(3) is also confirmed. The execution court is directed to keep in abeyance proceedings for delivery of the R. C. R. No.415 of 2011 -9- building in favour of the respondents till such time as Ashraf the 2[nd] respondent comes down to Vatakara and produces the original of his passport before the execution court and files undertaking in the form of an affidavit before the execution court stating very clearly that he is no longer employed in any foreign country and that he himself will personally conduct stationery business in the petition schedule building. 7. Sri.Lakshminarayanan made a last request that the petitioner be given a fairly long period to surrender the premises. Under the above circumstances even as we confirm the eviction order, we are inclined to issue notice to the landlord to determine the question of time. The RCR is dismissed in limine. Sd/PIUS C. KURIAKOSE JUDGE Sd/K. HARILAL JUDGE kns/- //True Copy// P. A. TO JUDGE R. C. R. No.415 of 2011 -10- PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ R. C. R. No.415 of 2011 -----------------------------------------------Dated this the 21[st] day of November, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ Issue urgent notice to the respondents to find out whether the 2[nd] respondent will be willing to come down to Vatakara and file an affidavit before the execution court in the lines stated in our order and also to determine the extent of time which can be given to the petitioners for surrendering the building. Post after service is complete. I.A. No.2484 of 2011 Interim stay for two months. kns/- //True Copy// Sd/PIUS C. KURIAKOSE JUDGE Sd/K. HARILAL JUDGE P. A. TO JUDGE R. C. R. No.415 of 2011 -12-