Moideenkunhi K.S. v. C.T. Mariyambi

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 1ST DAY OF DECEMBER 2014/10TH AGRAHAYANA, 1936 RCRev..No. 300 of 2014 () -------------------------AGAINST THE JUDGMENT IN RCA 14/2013 OF RENT CONTROL APPELLATE AUTHORITY,KASARAGOD DATED 30-07-2014 AGAINST THE ORDER IN RCP 14/2012 OF RENT CONTROL (PRINCIPAL MUNSIFF) COURT OF KASARAGOD DATED 23-08-2013 ## REVISION PETITIONER(S)/APPELLANT/RESPONDENT: ------------------------------------------------------------------------- MOIDEENKUNHI K.S., AGED 48 YEARS S/O.KOLIKKARA SAIFUDDIN, MUSLIM, BUSINESS KOLIKKARA SALES CORPORATION, FORT ROAD KASARAGOD KASBA VILLAGE, P.O.KASARAGOD KASARAGOD TALUK. BY ADVS.SRI.SHIRAZ ABDULLA SRI.JOJO PAPPACHAN ## RESPONDENT(S)/RESPODENT/PETITIONER: --------------------------------------------------------- C.T.MARIYAMBI, AGED 53 YEARS W/O.M.S.SALIH, MUSLIM, LANDHOLDER RESIDING AT ANEBAGILU, KASARAGOD, KASBA VILLAGE P.O. KASARAGOD, KASARAGOD TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & P.D.RAJAN, JJ.** -------------------------------------- R.C.R.No.300 of 2014 -------------------------------------Dated this the 1[st] day of December, 2014 ## _**O R D E R**_ ## **K.T.Sankaran, J.** The petitioner challenges the concurrent findings against him under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). 2. The respondent filed R.C.P.No.14 of 2012 on the file of the Rent Control Court, Kasaragod, against the petitioner/ tenant under Section 11(3) of the Act. The Rent Control Court allowed the application as per the order dated 23[rd] August, 2013. On appeal by the tenant as R.C.A.No.14 of 2013, the Rent Control Appellate Authority, Kasaragod, confirmed the order of the Rent Control Court. R.C.R.No.300/2014 2 3. The tenant is in possession of a building situated in Vidyanagar, Kasaragod, where he is running a business in furniture. The lease was on 26.11.2002. Originally, the monthly rent fixed was ₹8,000/-. The rent was subsequently enhanced to ₹11,000/- per month. The building has an area of 2500 sq.ft. 4. The need put forward by the landlord is that her son Abbas Esham wants to conduct arecanut business in the petition schedule building. Abbas Esham is a dependent on the landlord. Abbas Esham was examined as PW1. He stated that he completed his pre-degree course in the year 2008 and thereafter, he did not continue his studies. While examined as PW1, questions were put to him with respect to his knowledge in arecanut business. He answered all those questions. The Rent Control Court held that the evidence of PW1 is reliable and nothing has been brought out in his cross examination to R.C.R.No.300/2014 3 doubt the bonafides put forward by the landlord. Though a contention was taken by the tenant that PW1 was employed and he has other business, during trial, no such question was put to PW1. The tenant while examined as RW1 also did not put forward such a case that Abbas Esham is otherwise employed or that he has other business. The finding of fact arrived at by the Rent Control Court that the landlord established the bonafide need that her son Abbas Esham wants to conduct an arecanut business in the petition schedule building, was subjected to scrutiny by the Appellate Authority in detail and the Appellate Authority concurred with the view taken by the Rent Control Court. 5. The tenant raised a contention that the landlord has other building in her vacant possession and therefore, the first proviso to Section 11(3) of the Act is attracted. The Rent R.C.R.No.300/2014 4 Control Court noticed that there is no evidence before the court to show that the landlord is in possession of vacant rooms. It is well settled that the initial burden to show that the landlord has other vacant rooms in her possession in the locality is on the tenant and only thereafter the burden shifts to the landlord to prove facts to get over the rigor of the first proviso to Section 11(3) of the Act. The Rent Control Court noticed that the tenant did not take any steps to prove that the landlord is in possession of vacant rooms. No documents were also produced in this regard. During trial, the tenant did not put forward such a contention either in his chief examination or in the cross examination of PW1. The Rent Control Court held that the first proviso to Section 11(3) of the Act is not attracted in the case. This finding of fact was confirmed by the Appellate Authority, after considering the pleadings and the oral and documentary evidence in the case. R.C.R.No.300/2014 5 6. The tenant pleaded that he is entitled to the protection under the second proviso to Section 11(3) of the Act. In order to establish the second proviso, the tenant has to prove that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule building and that there are no other suitable buildings available in the locality to accommodate his business. It is well settled that the burden of proof in this regard is on the tenant. All the decisions of this Court right from **Kochappan Pillai v. Chellappan** ( **1976 KLT 1)** have laid down that the burden to establish both the ingredients of the second proviso is on the tenant. In so far as the second ingredient of the second proviso is concerned, it has come out in oral evidence as well as from Exhibit A2 extract of the Building Tax Register maintained by Kasaragod Municipality that vacant rooms are R.C.R.No.300/2014 6 available in the locality. According to the landlord, those buildings belong to Ibrahim. The tenant stated in evidence that he did not make an enquiry with Ibrahim. No steps were taken by the tenant to show that no suitable buildings are available in the locality. 7. With respect to the first ingredient of the second proviso, it has come out in evidence that the tenant has got a license to conduct plastic furniture and stationery business and that business is in Fort road. The petition schedule building is in Vidyanagar. That shows that the main source of income for the livelihood of the tenant is not from the business conducted in the petition schedule building. No accounts of income were produced by the tenant to show that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule R.C.R.No.300/2014 7 building. The Rent Control Court relied on the decision in **Sadanandan v. Kunheen (1991(2)KLT 628)** . 8. The Rent Control Court held that the tenant failed to prove both the ingredients of the second proviso to Section 11(3) of the Act. This finding was confirmed by the Appellate Authority after analysing the evidence on record. 9. The findings of the courts below are findings of fact. The revisional court, exercising jurisdiction under Section 20 of the Act, would not be justified in interfering with the findings of fact unless it is shown that there is any illegality, irregularity or impropriety in the decisions of the courts below. There is no such or illegality, irregularity impropriety justifying interference under Section 20 of the Act. The Rent Control R.C.R.No.300/2014 8 Revision is accordingly dismissed. Lastly, the learned counsel for the petitioner/tenant submitted that a reasonable time may be granted to the tenant to vacate the petition schedule building. Taking into account the facts and circumstances of the case, the Revision Petitioner/tenant in the R.C.P. is granted time till 31.5.2015 to vacate the petition schedule building on condition that he shall file an affidavit before the executing court on or before 31.1.2015, unconditionally undertaking to vacate the petition schedule building on or before 31.5.2015 and also on condition that he shall deposit the entire arrears of rent before the executing court on or before 31.1.2015. The tenant shall also deposit the monthly rent before the Rent Control Court on or before the 10[th] of the succeeding months till he vacates the petition schedule building. If the tenant fails to comply R.C.R.No.300/2014 9 with any of the conditions mentioned above, the order of eviction can be executed forthwith. If the tenant complies with the conditions mentioned above, execution of the order of eviction shall be kept in abeyance till 31.5.2015. **K.T.SANKARAN JUDGE P.D.RAJAN JUDGE** csl