Moosa Vannathamkandiyil S/o Ammed v. Remla Kakkamvelli Peedikayil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 21ST DAY OF AUGUST 2017/30TH SRAVANA, 1939 RCRev..No. 275 of 2017 -------------------------RCA.123/2015 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT JUDGE), VATAKARA RCP.75/2014 OF THE RENT CONTROLLER/MUNSIFF, NADAPURAM REVISION PETITIONER/APPELLANT/RESPONDENT.: --------------------------------------------- MOOSA VANNATHAMKANDIYIL S/O AMMED, AGED 68 YEARS, BUSINESS, VALAYAM AMSOM CHERUMOTH DESOM, P.O.CHERUMOTH, (VIA) VALAYAM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS.SRI.C.VATHSALAN SRI.K.RAKESH ROSHAN SRI.GHOSH YOHANNAN SMT.THUSHARA.V RESPONDENT/RESPONDENT/PETITIONER ------------------------------------------------------------ REMLA KAKKAMVELLI PEEDIKAYIL D/O KUNHALI HAJI, AGED 50 YEARS, SWASTHAM, PUTHALATHAMKANDI HOUSE, KUMMANGODE AMSOM KAKKAMVELLI DESOM, (P.O), NADAPURAM, VATAKARA TALUK, KOZHIKODE DISTRICT. PIN.673504. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 2108-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R.275 of 2017 - - - - - - - - - - - - - - - - Dated : 21[st] August, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## K.Harilal, J. 1.Petitioner is the tenant, who is confronting with an order of eviction passed by the Rent Control Court under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short “the Act”), which stands confirmed in appeal. The landlady averred that the petition schedule shop room is required for starting a hotel business. According to her, her husband was working abroad, but now he has returned and at present he has no avocation for livelihood. Similarly her son Abdul Latheef has also no job or income. The petitioner is also having no other independent income. So the petitioner, her husband and their son have decided to start a hotel in the petition schedule shop rooms. ## 2.The tenant resisted the said contention **RCR.275/2017** 2 contending that the landlord have so many other sources of income and the husband of the petitioner is conducting hotel business at Bangalore. Therefore the need projected in the petition is only a ruse for eviction. - 3.On the aforesaid rival pleadings both parties adduced evidence and after evaluating the evidence on record the Rent Control Court found that the need projected in the petition is a bona fide one and the petition is not hit by the 1[st] proviso to Sec.11(3) of the Act. It was also found that the tenant is not entitled to get protection under the 2[nd] proviso to Sec.11(3) of the Act. Thus the legality and propriety of the concurrent findings are assailed in this Revision Petition. - 4.The learned counsel for the revision petitioner mainly contended that the courts below have failed to consider the evidence on record available under the 1[st] proviso to Sec.11(3) of **RCR.275/2017** **==> picture [7 x 9] intentionally omitted <==** the Act and the bona fides of the petitioner in its correct perspective. According to the learned counsel, it has come out in evidence by the admission from the part of the landlady herself that she has another vacant room of her own to start business. But the courts below failed to consider the admission from the part of the landlady. It is also contended that the evidence available on record would prove that the landlady have so many other sources of income and she is a woman of wealth and assets. But the courts below have not considered the aforesaid evidence in its correct perspective. - 5.Going by the impugned judgment it is seen that, as contended by the learned counsel for the petitioner/tenant, that the husband of the landlady has hotel business at Bangalore and her husband has so many landed properties and other sources of income. PW1 herself deposed that they are getting Rs.30,000/- per annum as agricultural income from their property. The **RCR.275/2017** 4 point to be considered is whether the other sources of income and assets would negative the bona fides of the need projected in the petition. The legal position stands settled by this Court in Shamsudheen v. Balan Nair (2014 (2) KLT 978) and P.I.Abdul Rub v. Jobby Tharian (2003 (2) KLJ 1035). In Shamsudheen, this Court held that even if the landlord is a man of wealth and assets, his claim for eviction on the ground of bona fide need cannot be rejected if he is determined for starting another business. In Abdul Rub's case, this Court further held that “law does not insist that landlord having other source of income shall not carry on other income earning activity or venture to start new trade or business”. In view of the above, the courts below are justified in finding that the other source of income of the petitioner will not negative the bona fides of the need. - 6.Coming to the 1[st] proviso to Sec.11(3), even though the learned counsel for the tenant **RCR.275/2017** 5 contended that the landlady herself admitted that she has another building of her ow in her possession, going by the impugned judgment it is seen that in the counter statement filed by the tenant, the tenant has not pointed out the vacant building in the possession of the landlady. In other words, in the pleadings the tenant has no case that the landlady has another building of her own in her possession. But, during the course of examination, questions were put to her regarding possession of other vacant rooms in her possession. But the Appellate Authority has specifically observed that she has given reasons for not occupying another shop room stating that the said room is occupied by one Aboobackar and he is conducting 'chappati business' in that shop room. Thus, the landlady succeeded in giving special reason for not occupying another building in her possession. - 7.The learned counsel for the petitioner further contended that Ext.B1 notice would show that **RCR.275/2017** **==> picture [7 x 9] intentionally omitted <==** earlier, the landlady had issued notice requiring eviction on bona fide need and in that notice, the need projected was one for Rajani. Going by paragraph 14 of the judgment under challenge, it is seen that the Appellate Authority has meticulously examined the bona fides of the need in view of the above contention and found that Ext.A4 certified copy of the order passed in R.C.P.56/2013 on the files of the Rent Control Court, Nadapuram, proved that R.C.P.56/2013 was filed by one Rajani under Sec.11(3) of the Act for her bona fide need to commence a fancy shop in her building and said RCP has no connection with the landlord. Thus, Ext.A4 made it clear that the name of Rajani was mistakenly mentioned in Ext.B1 notice and it was so happened due to a mistake from the part of the counsel and that the same was occurred, while doing 'cut and paste' process from the computer at the time of preparation of Ext.B1 notice and notice for the said Rajani, at a time. Thus, the landlady has **RCR.275/2017** **==> picture [7 x 9] intentionally omitted <==** succeeded in giving satisfactory explanation to Ext.B1 to the effect that the same was a clerical mistake occurred in the office of her counsel. On the above analysis we find that the contentions raised in this revision have been considered by the courts below meticulously and we do not find any kind of perversity in the appreciation of evidence under the 1[st] proviso to Sec.11(3) of the Act and the bona fides of the need. - 8.The scope and extent of revisional jurisdiction is very limited and confined to legality and propriety of the findings of the court below. This Court is not inclined to re-appreciate the entire evidence on record and take a different view until the findings of the courts below are proved to be perverse. In the absence of perversity, this Court is not inclined to admit this revision petition on the files of this Court. Hence, this Revision Petition fails and the same is dismissed accordingly. **RCR.275/2017** 8 9.The learned counsel for the tenant prayed for sometime to surrender the tenanted premises. Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given eight months' time from today to vacate the petition schedule building, on the following conditions. (1). The revision petitioner/tenant 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 he will vacate the petition schedule shop room within eight months from today. (2). The revision petitioner/tenant shall deposit the entire arrears, if any, within one month, 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 **RCR.275/2017** 9 automatically vacated and the respondent will be at liberty to proceed with the execution of the eviction order. Sd/- **K.HARILAL Judge** **Sd/A.M.BABU Judge** Mrcs/22.8 //True Copy// P.S.To Judge