M/S.CANNANORE DRUG LINES v. CHERIYA MELAT ABDUL AZEEZ

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934 ## **RCRev..No. 287 of 2012 (A)** AGAINST THE JUDGMENT IN RCA.159/2006 OF ADDL. RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 28-11-2011 RCP.NO.35/2005 OF RENT CONTROL COURT, KANNUR DATED 31-08-2006 REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------------------------- M/S.CANNANORE DRUG LINES, REPRESENTED BY ITS MANAGING PARTNER MR.MATHEW SAMUEL, BUILDING NO. 1171, 1ST FLOOR, FORT ROAD, KANNUR REPRESENTED BY POWER OF ATTORNEY HOLDER, K.RAGHAVAN S/O. LATE P.K.RAMAN, AGED 79 YEARS, FIELD EXECUTIVE M/S.CANNORE DRUG LINES, RESIDING AT VIMAL RAAG, MANAL, KANNUR-8. BY ADV. SRI.AVM.SALAHUDDEEN RESPONDENT/RESPONDENT/PETITIONER: ------------------------------------------------------------- CHERIYA MELAT ABDUL AZEEZ S/O. ABDULLA HAJI, RESIDING AT 'AMJA', THANA KANNUR-12. BY ADV. SUNIL .V.MOHAMMED [CAVEATOR] BY ADV. SMT.V.N.SHASHIKALA THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.1955/2012 IN R.C.R.NO.287/2012** ## DISMISSED SD/- **K.T.SANKARAN, JUDGE** 14/12/2012 SD/- **M.L.JOSEPH FRANCIS, JUDGE** ANNEXURE A1 ORIGINAL EXTRACT OF THE PROPERTY TAX ASSESSMENT REGISTER WITH RESPECT TO THE GROUND FLOOR OF THE LANDLORD'S BUILDING. //TRUE COPY// AHZ/ ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** ## **---------------------------------------------------R.C.R. NO. 287 OF 2012 A ---------------------------------------------------Dated this the 14[th] day of December, 2012** ## **O R D E R** ## **K.T.Sankaran, J.** The tenant in R.C.P.No.35 of 2005 on the file of the Rent Control Court, Kannur, who was the appellant in R.C.A.No.159 of 2006 on the file of the Rent Control Appellate Authority, Thalassery, is the revision petitioner. 2. The Rent Control Petition was filed by the respondent/ landlord under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The Rent Control Court allowed the Rent Control Petition under Section 11(3) of the Act but dismissed the Rent Control Petition under Section 11(4)(iii) of the Act. On appeal by the tenant, the Appellate Authority dismissed the appeal and confirmed the order under Section 11(3) of the Act. ## **R.C.R. NO. 287 OF 2012 A** :: 2 :: 3. The petition schedule building is in the first floor of the main building. The main building consists of three floors. In the ground floor, Dena Bank is the tenant. The second floor is occupied by the tenant M/s.Cannanore Drug House, against whom R.C.P.No.37 of 2005 was filed by the landlord for eviction under Sections 11(3) and 11(4)(iii) of the Act. In the present case, the landlord seeks eviction of the tenant from the first floor of the building. 4. The landlord contended that the petition schedule building is required for his bona fide need for conducting an electronic shop and watch shop. According to the landlord, he was working abroad for quite some time and he has come back to his native place. He contended that at present he has no job and, therefore, he wants to engage himself in some business activities for which the petition schedule building is required. 5. The tenant contended that the bona fide need put forward by the landlord is not genuine. The landlord is an aged man and he ## **R.C.R. NO. 287 OF 2012 A** :: 3 :: does not want to conduct any business in the petition schedule building. The Rent Control Petition was filed only as a ruse for eviction. The tenant also raised a contention that the landlord is having another building and, therefore, the Rent Control Petition is hit by the first proviso to Section 11(3) of the Act. The tenant also claimed the benefit of the second proviso to Section 11(3) of the Act. 6. The authorities below held that the need put forward by the landlord is bona fide. It has come out in evidence that the landlord has come back to India permanently. The authorities below found that the landlord has satisfactorily explained the need for conducting a business and about the investment to be made and expenditure to be incurred for running the business. All the relevant details in respect of the business proposed to be conducted in the petition schedule building were stated by the landlord to the satisfaction of the authorities below. The courts below also held that the tenant has not shown that the landlord is in possession of another building and, therefore, the first proviso to Section 11(3) of the Act is not attracted. It was also found by the authorities below concurrently ## **R.C.R. NO. 287 OF 2012 A** :: 4 :: that the tenant, a partnership firm consisting of several partners, failed to prove the ingredients of the second proviso to Section 11(3) of the Act. 7. The tenant filed I.A.No.2344 of 2012 to receive additional document. The tenant stated in the affidavit accompanying the application that the ground floor of the building was let out to Dena Bank, Kannur for a period of five years and after the expiry of the lease period, the building was again entrusted to the said Bank. It is stated that the period of lease with Dena Bank expired during the pendency of the Rent Control Petition and the premises was let out to Dena Bank again by the landlord. The extract of the building tax assessment in respect of the ground floor of the building is produced as the additional document. 8. Learned counsel appearing for the petitioner submitted that after filing the Rent Control Petition, the period of lease granted to Dena Bank expired and again an agreement was executed between the landlord and Dena Bank. It is submitted that the bona fide need ## **R.C.R. NO. 287 OF 2012 A** :: 5 :: put forward by the landlord is not genuine. If the case of the landlord is genuine, he could have occupied the ground floor of the building and it was not necessary to evict the petitioner/tenant. 9. Learned counsel for the respondent/landlord submitted that the landlord wanted to conduct business in the first floor of the building and he made it clear in the Rent Control Petition itself. Vacant possession of the ground floor of the building was not obtained by the landlord. The original lessee, Dena Bank, continues to be the lessee even now in respect of the ground floor of the building. Even if an agreement was executed granting renewal of the lease to Dena Bank that does not mean that the landlord got vacant possession of the premises from Dena Bank, particularly when there is a renewal clause in the lease agreement between the landlord and Dena Bank. 10. Learned counsel for the respondent relied on the decision of a Division Bench of this Court in **Valsan** v. **Furtal** (2004(3) KLT 1046), wherein the Division Bench held thus: ## **R.C.R. NO. 287 OF 2012 A** :: 6 :: “6. Landlord might have rented out several premises to different tenants but he has always the option to seek eviction of a premises which is convenient for him for the purpose for which eviction has been sought for. Option has to be exercised by the landlord exclusively for which tenants have no role. Several factors would go into the mind of the landlord while exercising the option against whom the Rent Control Petition has to be filed when there is more than one tenant. Factors like rent received from the particular tenant, convenience, relationship and so on may influence the landlord while exercising his option. After having decided to file Rent Control Petition against tenant A, tenant B vacates, it will be for the landlord to decide whether he should occupy the vacant premises. The landlord after having made a preference cannot be forced to occupy the premises B which became available subsequently unless the tenant's need is wholly satisfied which is essentially a question of fact. In a given case the landlord can rent out even the premises which came into his possession during the pendency of the rent control proceedings for a better rent. No duty is cast on the landlord to keep the premises idle and discontinue the rent control proceedings. Landlord can always proceed with the ## **R.C.R. NO. 287 OF 2012 A** :: 7 :: rent control proceedings having taken a decision to proceed against A rather than B. Special reasons may exist not only when he exercised his option but also when he got the vacant possession of a premises. ....” 11. The authorities below rightly held that the bona fide need put forward by the landlord is genuine. The findings of the authorities below in respect of the first and second provisos to Section 11(3) of the Act are also correct. The findings rendered by the authorities below are findings of fact, based on the pleadings and evidence in the case. We do not find any ground to interfere with the well considered order and judgment of the Rent Control Court and the Appellate Authority, exercising jurisdiction under Section 20 of the Kerala Buildings (Lease and Rent Control) Act. 12. For the aforesaid reasons, the Rent Control Revision is dismissed. Lastly, the learned counsel appearing for the petitioner/tenant submitted that the tenant may be afforded a reasonable time to ## **R.C.R. NO. 287 OF 2012 A** :: 8 :: vacate the premises. Taking into account the facts and circumstances of the case, we grant six months' time to the tenant to vacate the premises on condition that the tenant shall file an unconditional undertaking before the Rent Control Court on or before 28.2.2013, unconditionally undertaking to vacate the premises on or before the expiry of six months and also on condition that the tenant shall pay the arrears of rent, if any, to the landlord on or before 28.2.2013 and also on condition that the tenant shall continue to pay the monthly rent on or before 10[th] of every succeeding month till the tenanted premises is vacated. ## **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/