Moyinkutty and others v. Erambil Ravi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944** **RCREV. NO. 149 OF 2016** **AGAINST THE JUDGMENT IN R.C.A.No.139/2014 DATED 21.12.2015 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE WHICH WAS AGAINST THE ORDER IN R.C.P.NO.65 OF 2012 DATED 31.07.2014 ON THE FILE OF THE RENT CONTROL COURT I, KOZHIKODE** ## **REVISION PETITIONER:** - **1 MOYINKUTTY AGED 63 YEARS, PARASSERICHALAMPOYIL, S/O.P.C.AYAMMADKUTTY, RAROTH AMSOM, ANDONA DESOM, KOZHIKODE TALUK.** - **2 UMMER KUTTY AGED 56 YERS, PARASSERICHALAMPOYIL, S/O.P.C.AYAMMADKUTTY, RAROTH AMSOM, ANDONA DESOM, KOZHIKODE TALUK.** - **3 AYISU AGED 59 YERS,PARASSERICHALAMPOYIL, D/O.P.C.AYAMMADKUTTY, RAROTH AMSOM, ANDONA DESOM, KOZHIKODE TALUK.** - **4 RABIYA AGED 55 YERS,PARASSERICHALAMPOYIL, D/O.P.C.AYAMMADKUTTY, RAROTH AMSOM, ANDONA DESOM, KOZHIKODE TALUK.** - **5 ADDL.P-5. KHADEEJA AGED 65 YEARS W/O.MOINKUTTY, RESIDING AT CHELLAMPOIL HOUSE, THAMARASSERY, KOZHIKODE PIN-673573** - **6 ADDL.P-6. ANZAR M.AHAMMED AGED 49 YEARS** - **S/O.MOINKUTTY, RESIDING AT CHELLAMPOIL HOUSE, THAMARASSERY, KOZHIKODE, PIN-673573** 2 **RCREV. NO. 149 OF 2016** - **7 ADDL.P-7. MUBEENA AGED 47 YEARS** **D/O.MOINKUTTY, RESIDING AT CHELLAMPOIL HOUSE, THAMARASSERY, KOZHIKODE, PIN-673573** - **8 ADDL.P-8. HASEENA AGED 43 YEARS** **D/O. MOINKUTTY, RESIDING AT CHELLAMPOIL HOUSE, THAMARASSERY, KOZHIKODE, PIN-673573.** **(ADDL.PETITIONERS P5 TO P8 BEING THE LEGAL HEIRS OF THE DECEASED IST PETITIONER ARE IMPLEADED AS PER THE ORDER DATED 23/03/2022 IN IA NO.2/2022 IN RCR.149/2016).** **BY ADVS.** **SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.V.RAIMA RAMESH** **RESPONDENT:** **ERAMBIL RAVI** **S/O.NARAYANAN, RAROTH AMSOM DESOM, T.P.12/468, 6469, NEAR NEW BUS STAND, P.O.THAMARASSERY, KOZHIKODE-673 573.** **BY ADV.** **SRI.AJITH VISWANATHAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **RCREV. NO. 149 OF 2016** ## **O R D E R** ## Ajithkumar, J The landlords who filed R.C.P No.65 of 2012 before the Rent Control Court (Additional Munsiff–I), Kozhikode are the petitioners. Since the 1[st] petitioner died pending this revision, his legal representatives are impleaded as additional petitioners 5 to 8. The Rent Control Petition was filed seeking eviction of the respondent-tenant from the petition schedule shop room under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court ordered eviction on both the grounds. Respondent preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (1[st] Addl. District Judge) Kozhikode. The appeal was allowed in part. Order of eviction under Section 11(3) of the Act was set aside, but the order of eviction under Section 11(2)(b) was confirmed. The landlords aggrieved by the said judgment have filed this revision under Section 20 of the Act. 2. On 25.11.2020 this revision was admitted to file and notice was ordered to the respondent. 4 ## **RCREV. NO. 149 OF 2016** 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. 4. The respondent has been in occupation of the petition schedule shop room as a tenant. He is conducting a business in sale of stationery articles, interstate ticketing service and copying of photostats. Alleging that rent since March 2010 has been in arrears and demand for vacant possession of the schedule shop room for the son of the 4[th] petitioner to start a business was declined by the tenant, R.C.P No.65 of 2012 was filed. The respondent filed a counter statement denying those contentions and plea for eviction. The respondent maintained that the rate of rent was Rs.1800/- per month and he has been paying it without any default. He further contended that the son of the 4[th] petitioner is not a dependent of the petitioners and as he has independent sources of income, there is no need for him to start a business as projected. Respondent also claimed benefit of the provisos to Section 11(3) of the Act. 5. PWs 1 and 2 and RW1 were examined before the 5 ## **RCREV. NO. 149 OF 2016** Rent Control Court. Ext.A1 to A4, B1, C1 and C1(a) were received in evidence. The Rent Control Court after considering the evidence found that the need urged by the petitioners was bonafide. The contention of the respondent that, there were a few vacant rooms in the same building to which the petitioner schedule shop room forms a part, but no sufficient explanation for not occupying the said rooms was offered by the petitioners, has been turned down by the Rent Control Court. Claim of the respondent that he was entitled to the benefit of second proviso to section 11(3) of the Act was also found against. When the resultant order of eviction under Section 11(3) of the Act was challenged before the Appellate Authority, the findings of the Rent Control Court with respect to the bonafide need as also the second proviso to section 11(3) of the Act were confirmed. The Appellate Authority however found that vacant rooms were available with the petitioners and the special reasons offered by the petitioners for not occupying the said rooms were not satisfactory. That resulted in reversing the order of eviction under Section 11(3) of the Act. 6. The learned counsel appearing for the petitioners 6 ## **RCREV. NO. 149 OF 2016** would submit that findings of the Appellate Authority that vacant rooms were available with the petitioners is wrong. It was also incorrectly found that the petitioners failed to explain as to why they could use of any one of the said rooms for the projected purpose. Ext.B1 which is a certified copy of the Building Tax Assessment Register in the name of the petitioners and the observations in Ext.C1 were relied on by the Appellate Authority, but the learned counsel appearing for the petitioners contended that in the facts and circumstances of this case Ext.B1 and C1 should not have been relied on. 7. The learned counsel appearing for the respondent on the other hand would contend that in the light of the entries in Ext.B1, that a few rooms belonging to the petitioners were being not occupied by anyone, the burden to prove the contrary or else, to satisfactorily explain the reason for non occupation was on the petitioners, but they failed to discharge. The law laid down in **Ramla v. Ozhiparambil Chandran [2016(4) KHC SN1]** has been placed reliance on in this regard by the learned counsel. 8. PW1 is the 4[th] petitioner. PW2 is his son. Both of 7 ## **RCREV. NO. 149 OF 2016** them deposed regarding the need, the petitioners projected. PW2 is a graduate in BBA. He remained jobless. He is now working as a trainee in a business establishment of his friend. It is in the said circumstances, he proposed to start a business in mobile phone accessories in the petition schedule shop room. The respondent has no case that PW2 has any building or room of his own. As regards his desire to start such a business, RW1, the respondent also did not sound any apprehension. Rather he has agreed that such a need was reasonable. Considering the said evidence, the authorities below concluded that the need urged by the petitioners was honest and genuine and therefore is a bonafide one. We find no reason to interfere with the said findings. 9. RW1 deposed that he, as well as his family have been depending for their livelihood solely on the income derived from the business in the petition schedule shop room. He is conducting a business of selling stationery articles, issuing interstate travel tickets and providing photostat copies. No statement of accounts, statutory license or any such document has been produced by the petitioner. In the absence of any 8 ## **RCREV. NO. 149 OF 2016** such evidence, the ipse dixit of RW1 is not enough to find that the sole income on which the respondent can depend upon for his livelihood is the income from the said business. The finding of the Appellate Authority in this regard has gone wrong and therefore we reverse it. 10. The Commissioner appointed in this case reported as per Ext.C1 that 4 rooms were found vacant in a nearby building. PW1 pointed out vacancy of such rooms during his examination in court as well. Even in spite of such evidence, the respondents did not venture to bring on record any evidence to substantiate that no suitable building has been available for his purpose in the locality. The authorities below after considering that evidence found that the second limb of the second proviso to section 11(3) against the respondent. In the facts and circumstances of this case, we do not find a reason to interfere with that finding. It follows that the respondent cannot rest on the second proviso to resist the claim for eviction. 11. Ext.B1 does not say to what period it relates to. There is absolutely no other evidence to fill up that lacuna. Of 9 ## **RCREV. NO. 149 OF 2016** course, going by the principle in **Ramla** (supra) when it is brought to the notice of the Court by supporting materials that several vacant rooms are available in the possession of the landlord, it is incumbent upon him to show reasons of her not opting those rooms for the purpose of projected by him. In that case, the Building Tax Assessment Register was produced as Ext.P8. The case of the landlord was that that was a manipulated document whereas the evidence on record was enough to find that the document was a duly issued certified copy. There was no allegation that the contents therein were incorrect or that the rooms mentioned therein were not available with the landlord. It was in the said circumstances the court held that the landlord was cast with the burden of showing special reasons if to dissuade application of the first proviso to section 11(3) of the Act. 12. In this case, Ext.B1 does not show to which period it relates. In the absence of any further evidence or admission on the part of the petitioners that such rooms were lying vacant, it is not able to enter a finding that such rooms were actually lying vacant. The Commissioner has reported that all 10 ## **RCREV. NO. 149 OF 2016** the rooms in the building were closed at the time of his visit. Therefore Ext.C1 report cannot be used to say that such rooms were not occupied by anyone and actually vacant. The petitioners have a definite case that except the petition schedule shop room and another room in occupation of another tenant, all the rooms are occupied by Dr.Sreenijan and Dr.Mini Sreenijan for conducting a private hospital. The assertion of PW1 in that regard is not successfully cross-examined. In the said circumstances finding of the Appellate Authority that the petitioners have vacant rooms in their possession is not sustainable. Therefore we hold that the first proviso to section 11(3) of the Act does not attract in this case. Finding of the Appellate authority in that regard is accordingly reversed. 13. To sum up, the Appellate Authority ought not to have reversed the findings of the Rent Control Court that the petitioners have no vacant room in their possession and the respondent was not depending for his livelihood solely on the income derived from the business in the petition schedule shop room. The decision of the Appellate Authority in the above regard is therefore reversed. The order of eviction under 11 ## **RCREV. NO. 149 OF 2016** Section 11(3) of the Act rendered by the Rent Control Court is restored. Hence we allow this revision. 14. Learned counsel appearing for the respondent would submit that a period of at least nine months may be granted for surrendering vacant possession of the petition schedule shop room since that much time at least is required to find out another building/room and shift the business of the petitioners. The learned counsel appearing for the petitioners is agreeable to grant reasonable time. 15. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition 12 ## **RCREV. NO. 149 OF 2016** schedule shop room to the petitioner-landlord within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further he shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondenttenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition 13 ## **RCREV. NO. 149 OF 2016** schedule shop room will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/P.G. AJITHKUMAR JUDGE** PV