M/S. T.K. Mehamood & Company v. P.O. Abobacker Koya

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940 RCRev..No. 198 of 2016 RCA 100/2014 of RENT CONTROL APPELLATE AUTHORITY-II/ II ADDL. DISTRICT COURT, KOZHIKODE- II DATED 13-08-2015. RCP 77/2010 of RENT CONTROL/PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 30-06-2014 ## REVISION PETITIONER(S)/APPELLANTS IN RCA AND RESPONDENTS IN RCP: - 1 M/S.T.K.MEHAMOOD, REPRESENTED BY ITS MANAGING PARTNER, S.M. STREET, CALICUT IN NAGARAM AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE DISTRICT. ## 2 MRS. MUMTAZ, AGED 67 YEARS, W/O. P.M. ABDULLA, PARTNER OF M/S. T.K. MEHAMOOD & COMPANY, 'MUMTHAZ BHAVAN' KASABA AMSOM DESOM, KOZHIKODE TALUK. ## 3 ARSHAD ABDULLA ,. S/O ABDULLA, AGED 53 YEARS, PARTNER OF M/S. T.K. MEHAMOOD & COMPANY, 'MUMTHAZ BHAVAN' KASABA AMSOM DESOM, KOZHIKODE TALUK. 4 KHURSHIDA YOUSUF, D/O. P.M. ABDULLA, AGED 56 YEARS, PARTNER OF M/S. T.K. MEHAMOOD & COMPANY, REPRESENTED BY HER POWER OF ATTORNEY HOLDER P.M ABDULLA, S/O. IBRAHIM KUTTY, 'MUMTHAZ BHAVAN' KASABA AMSOM DESOM, KOZHIKODE TALUK. BY ADVS.SRI.R.D.SHENOY (SR.) SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA SMT.UMMUL FIDA RCR No. 198/2016 : 2 : ## RESPONDENT(S)/RESPONDENT IN RCA AND PETITIONER IN RCP: P.O. ABOOBACKER KOYA, AGED 63 YEARS, S/O. P.P. HAMZA KOYA, RESIDING AT "RAIZAL", THIRUVANNUR ROAD, KALLAI.P.O, CALICUT-673 003. R1 BY ADV. SRI.PUSHPARAJAN KODOTH R1 BY ADV. SRI.K.JAYESH MOHANKUMAR R1 BY ADV. SMT.VANDANA MENON R1 BY ADV. SMT.N.DEEPA R1 BY ADV. SRI.T.SETHUMADHAVAN (SR.) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K. HARILAL & ANNIE JOHN, JJ.** ## **------------------------------------------RCR No. 198 of 2016** **-----------------------------------------Dated this the 5[th ] day of July, 2018.** ## **JUDGMENT** ## K. Harilal,J. The revision petitioners are the appellants in RCA No. 100 of 2014 of the Rent Control Appellate Authority-II, Kozhikode as well as the respondents in Rent Control Petition No. 77 of 2010 of the Rent Control Court, Kozhikode. They are the tenants in occupation of the petition schedule building owned by the respondent herein. 2. The respondent, who is the landlord, filed the aforesaid RCP seeking an order of eviction under Sections 11(2)(b) and 11(3) of the the Kerala Building (Lease and Rent Control) Act, 1965 ('the Act' for short) against the revision petitioners. The claim for eviction under Section 11(2)(b) was not pressed during the course of trial and the Rent Control Court passed an order of eviction under Section 11(3) of the Act. Though the revision petitioners had preferred an appeal, the appellate authority also concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the concurrent findings whereby the courts below have passed an order of eviction under Section 11(3) of the Act, are challenged in revision before us to examine the legality, propriety and regularity of the said findings. 3. The brief facts of the case can be summarised as follows: The parties are referred to as in the Rent Control Petition. According to the petitioner, he _bona fide_ needs the petition schedule RCR No.198/2016 -2- building for starting a textile cum ready-made garments. He was working abroad for 25 years and he returned in the year 2001. Now he wants to set up his own business for making a decent living. He does not have any other building in his ownership and possession for starting a business mentioned above. The respondents are not depending on the income derived from the business in the petition schedule building and several other vacant shop rooms are available in the same city for shifting their business from the petition schedule building. The partners of the first respondent firm are very wealthy and having many other business and substantial income. Hence, he prayed for an order of eviction under Section 11(3) of the Act. 4. The respondents resisted the claim for eviction under Section 11(3) of the Act contending that the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. According to the respondents, the tenancy commenced prior to 01.04.1940 and therefore, they are entitled to the protection under Section 11(17) of the Act. The first respondent firm was established in the year 1911 and occupied the building in the year 1911 itself. The petition schedule building was occupied prior to the entrustment to the first respondent by one Pulikkottil Saimon. The said Saimon, after winding up of his business, with the consent of the landlord, entrusted the petition schedule premises to the first respondent, who established the business in textile in the year 1911 and the said business is being conducted by the first respondent partnership firm even now. It is RCR No.198/2016 -3- further contended that later the previous tenant formally surrendered his tenancy right to the landlord and the landlord entrusted the petition schedule building to the first respondent partnership firm by the then Managing Partner, T.K Mehamood in the year 1929. The petitioner has vacant buildings of his own in his possession for starting the proposed business. Respondents 2 to 4 are mainly depending for their livelihood on the income derived from the textile business conducted in the petition schedule building and no other suitable buildings are available in the locality. They prayed for dismissal of the Rent Control Petition. 5. The evidence consists of the oral testimony of PW1 and RW1, the documentary evidence of Exts.A1 to A5, Exts. B1 to B7 and Court Exhibits, C1 to C2(a). 6. Heard the learned Senior Counsel appearing for the revision petitioners and the learned Senior Counsel appearing for the respondent. 7. Though this revision petition has been filed on various grounds, the learned Senior Counsel appearing for the revision petitioners has focused his arguments on three grounds. Firstly, it is contended that the courts below have failed to appreciate the _bona fides_ of the need in its correct perspective and the appreciation of evidence in this respect is vitiated by perversity warranting an interference of this Court by invoking the powers under revisional RCR No.198/2016 -4- jurisdiction. The learned counsel drew our attention to the chief examination and cross examination of PW1 and pointed out what was spoken by him in the chief examination as regards the _bona fides_ of the need has been demolished in the cross examination by the respondents. In order to substantiate the said contention, it is further pointed out that there was a delay of 9 years in filing the rent control petition after the arrival of the petitioner from UAE and there was no explanation from the part of the petitioner, for this inordinate delay. Secondly, it was brought out in evidence from the cross examination and Ext.A3 that the petitioner has 32% shares in a partnership firm and in that partnership business, he is getting lakhs of rupees as monthly income by way of remmuneration, interest on deposit and share of profit. In short, it was brought out in evidence that he was a well placed returned NRI, having sufficient sources of income and such man can never be expected to start textile business for his livelihood. The delay in filing the rent control petition coupled with the sufficient sources of income would negate the _bona fides_ of the need projected in the petition. But, the courts below have failed to appreciate the aforesaid points which would destroy the _bona fides_ of the need. Thirdly, it is also contended that the findings of the courts below, which approved the _bona fides_ of the need, are not consistent with the human conduct. _8. Per contra_ , the learned Senior Counsel appearing for the RCR No.198/2016 -5- respondent advanced his arguments to justify the concurrent findings of the courts below, whereby an order of eviction has been passed under Section 11(3) of the Act. The learned counsel reminded us that the scope and extent of re-appreciation of factual findings in a revision petition is very limited and confined to the examination of perversity in the appreciation of evidence or non-consideration of material evidence only. In the instant case, there is no kind of perversity in the appreciation of evidence warranting an interference under revisional jurisdiction of this Court, the learned counsel contends. Further, it is contended that the affluence of the landlord is of no consequence at all while considering the _bona fides_ of the need for starting a new business. In order to support the aforesaid arguments, the learned counsel has cited the decisions in _**Kurian P.V v. Sunny John**_ (2016 (2) KHC 260H and _**Azeez v. Muhammad**_ (2014 (4) KLT 776). The learned counsel has further invited our attention to the pleadings and highlighted the point that even in the pleadings, the petitioner landlord has no case that he has no other sources of income or business and the eviction is sought for generating more income to lead a decent life. Therefore, the income from the partnership business does not have any fundamental impact on the _bona fides_ of the need RCR No.198/2016 -6- projected in the petition. Further, it is contended that it was brought out in evidence that the petition schedule shop room was taken on lease by the predecessor in interest of the respondent in his personal capacity only and not for the partnership firm. It is also pointed out that in view of the decision in _**Hindustan Petroleum Corporation Ltd. Dilbahar Singh**_ (2014 (4) KLT 182), the successors or legal heirs of the original tenant are not entitled to get protection and privilege under Section 11(17) of the Act, if the respondents too are the successors of the original lessee. 9. In view of the arguments at the Bar, the prime question to be considered in this revision petition is whether there is any kind of perversity in the appreciation of evidence as regards the _bona fides_ of the need as alleged by the respondents. First of all, we must remind ourselves the scope and extent of interference with the appreciation of evidence on factual findings in a revision petition. The revisional jurisdiction are seen demarcated by the Constitutional Bench of the Supreme Court in _**Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh**_ (2014(4) KLT 182(SC), which reads as follows: "45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re- appreciation of RCR No.198/2016 -7- the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." 10. Before examining the perversity in the appreciation of evidence, we have to examine the question whether the affluence or abundance in wealth and assets of the landlord have any fundamental impact on the _bona fides_ of the need projected in Section 11(3) of the Act. The Supreme Court has considered the said question also in various decisions. In _**Kurian P v. Sunny John**_ (2016(2) KHC 260H), the Division Bench of this Court held that the law does not insist that the landlord having other sources of income shall not carry out another income generating activity for venture to start a new business. In _**Shamsudheen v. Balan Nair**_ (2014(2) KLT 978), this Court held as follows: "It is well settled legal position that the claim of the landlord for eviction on _bona fide_ need cannot be rejected just because he has RCR No.198/2016 -8- some income from other source, or just because he is a man of wealth and assets. Of course, it is true that the landlord has casually stated that he has no attractive income. But what is prominently pleaded in the eviction petition, and what is definitely spoken to in evidence, is that the landlord wants a business of his own, or he is determined of have some business of his own. Just because he has landed properties or assets yielding attractive income his claim for eviction cannot be rejected by the Court, if the Court is otherwise satisfied that he is determined to start a business of his own. That he has income from other sources will not stand in the way of granting eviction in such a factual situation." 11. Coming to the pleadings in the original petition, the petitioner landlord specifically pleaded that he was working in UAE for about 25 years and now he is settled at Calicut and he _bona fide_ wants to start a business of his own in the petition schedule building. Now, he wants to set up his own business for making a decent living. Here, it is pertinent to note that the petitioner has no case that he has no other sources of income or he wants to start textile business to eke out his livelihood. More specifically the need projected is one to start a business of his own in the petition schedule building for making a decent living. In view of the decisions referred to above, at the outset, we find that the financial affluence of the petitioner/landlord will not make any impact on the _bona fides_ of the need for starting a business projected by the landlord. Thus, the pleadings are justifiable in view of the well settled legal position of this Court as well as the Supreme Court. RCR No.198/2016 -9- 12. Coming to the evidence, it is brought out in evidence that the petitioner is a partner of a partnership firm by name 'Global Trade Links' and he is also getting substantial amount as remmuneration, interest for deposit and share of profit from the said business. It is not disputed that the petitioner is having 32.50% share in the said partnership business. But, there was a borrowal to the tune of Rs.36,67,084/- to the said business. In view of the decisions referred above, it can safely be concluded that the fact that the petitioner is a partner of Global Trade Links would not disentitle him to claim the order of eviction on the _bona fide_ need, if the need is proved to be genuine. At this juncture, it is to be remembered that the specific case of the petitioner is that he wants to start a business of his own as the aforesaid Global Trade Link is a partnership firm only. Further, it is specifically averred that the starting of the new business of his own is to make a decent living. It is implied in the said pleadings that now he is having income for his livelihood and he is desirous of generating more income to make a decent living. We find that there is no suppression of the fact that he is having other sources of income as the same is implied in the pleadings. When he was examined as PW1, he admitted that he is a partner of a firm by name 'Global Trade Links' and he is getting income from the said RCR No.198/2016 -10- firm. 13. The learned Senior Counsel appearing for the respondent drew our special attention to the oral testimony of PW1 as regards the income which is being received from the firm and contended that the courts below went wrong by accepting his contention that he is drawing only Rs.5,550/- only per month when Ext.A3 proves otherwise. According to the learned counsel, the appreciation of the oral evidence of PW1 is inconsistent with the natural course of human conduct. 14. We meticulously gone through his evidence in this respect and we find that what he deposed is that he has been drawing Rs.5550/- only to meet his expenses and he was unable to tell the exact annual or monthly income from the partnership business. Further, he has given an explanation that the partnership business is having a huge loan and the same is evident from Ext.A3. In view of the huge amount outstanding as loan, there is nothing irrational or unbelievable that he has been drawing a meager amount only from the partnership firm. Even if he is drawing the entire income every month from the partnership firm, the said fact is of no consequence at all, in view of the decision referred above. It is to be remembered that there is no maximum limit for earning income and every person RCR No.198/2016 -11- is desirous of earning more and more income and there cannot be a saturated point for the same. Therefore, merely for the reason that a person having income is seen desirous of earning more income, it cannot be held that his desire is not _bona fide_ . The impecuniousness is not a condition precedent for claiming an order of eviction under Section 11(3)(b) of the Act. In the above context, we are unable to accept the contention raised by the learned counsel for the revision petitioner that the evidence of PW1 in this respect is inconsistent with the human conduct. We do not find any irrationality or unreasonableness in dreaming for earning more and more income so as to make life more comfortable or luxurious. There is nothing unnatural or unreasonableness in his venture to start a business of his own to augment his income in addition to his income from the partnership firm by name 'Global Trade Links'. Thus, we do not find any kind of perversity or inconsistency with the natural course of human conduct, in the appreciation of evidence of PW1 with respect to his _bona fide_ need. In the absence of any kind of perversity, there is no reason to interfere with the concurrent findings of the courts below on the _bona fide_ need and we reject the contentions raised in this revision petition. 15. Coming to the legality of the findings whereby the RCR No.198/2016 -12- claim under Section 11(17) was rejected, it is the case of the petitioner that the first respondent partnership firm was started in the year 1929 in the petition schedule building with a monthly rent of Rs.15 and the firm was registered with the Registrar of Firms on 30.09.1935. Therefore, the respondents are entitled to get protection under Section 11(17) of the Act as the commencement of the tenancy was prior to 01.04.1940 as envisaged under Section 11(17) of the Act. In order to substantiate the said contention, Exts.B3, B4 and B7 were pressed into service. Ext. B3 is the extract of the register of firms issued by the Registrar of Firms in respect of the first respondent Firm. It shows that the first respondent firm was registered with the Registrar of Firms on 30.09.1935. Ext.B7 issued by the Registrar of Firms also proves that the said Firm was registered on 30.09.1935. The respondents have succeeded in proving that the firm was registered on 30.09.1935. Indisputably, the firm was in existence before 01.04.1940. But the question is whether there is any evidence to prove that the said firm had taken the plaint schedule shop room on rent before 01.04.1940. Ext.B4 is the copy of the lease deed whereunder the tenancy has originally commenced. Ext.B4 would show that as per the said lease deed, Sri. T.K. Mehamood, in his personal RCR No.198/2016 -13- capacity, took the petition schedule building from the former landlord. In 1929, if the said Mehamood has taken the petition schedule shop room in his individual capacity only, the first respondent firm cannot claim any kind of privilege or protection under Section 11(17) of the Act. In other words, there is no material to prove that the petition schedule shop room was taken on rent before 01.04.1940 by the first respondent firm. Moreover, the recital in Ext.B4 would show that T.K. Mehamood was the tenant in his individual capacity and there is nothing in the said lease deed to show that Sri. T.K. Mehamood took the building on lease for and behalf of the first respondent firm. More importantly, Exts.B3 or B4 does not disclose the identity of the place where the firm was functioning at the time of registration. In the above view, the courts below are justified in finding that the respondents have failed to prove that the petition schedule shop room was taken on rent by the first respondent firm before 01.04.1940. 16. At this juncture, the learned counsel for the respondent cited the decision of this Court in _**Narayanan v. Shalima**_ (2003(2) KLT 317). More importantly, the said decision is confirmed by the Larger Bench of this Court in _**Prabhakaran v. Sulaikabi**_ (2007(2) KLT 103). The Full Bench of this Court held RCR No.198/2016 -14- that the legal heirs or the successors of the tenant is not entitled to get the privilege of or protection granted under Section 11(17) of the Act. If that be so, even if the respondents are the successors of the original tenant, who has taken the tenanted premises on rent before 01.04.1940, they are not entitled to get the protection under Section 11(17) of the Act. We do not find any reason to interfere with the findings whereby the courts below have rejected the protection under Section 11(17) of the Act. We do not find any reason to interfere with the concurrent findings of courts below, whereby the courts below have rejected the claim under Section 11(3) and 11(17) of the Act. Accordingly, this revision petition is dismissed. 17. The learned counsel for the revision petitioners seeks one year's time to vacate the tenanted premises. According to the learned counsel, one year time is required for winding up the textile business. However, having regard to the fact that the revision petitioners are conducting the textile business in the tenanted premises, a reasonable time can be given to wind up the business. Therefore, the revision petitioners are given time upto 31.12.2018 to vacate the premises on the following conditions: 1. The revision petitioners shall pay the entire arrears of rent, if RCR No.198/2016 -15- any, within a period of two months from today. 2. The revision petitioners shall file affidavits expressing an undertaking that they are ready and willing to vacate the tenanted premises on or before 31.12.2018. 3. The affidavit shall be filed within a period of two weeks from the date of receipt of a copy of this order. In case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. **K. HARILAL, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_