Muhammed Ashraf v. Johny S/o Kannanaikkal Kochappu @ Thomass, Lilly W/o Kannanaikkal Johny, Seby Raj S/o Kannanaikkal Johny, Surendran, Sujesh Raj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944** **R.C.REV.NO.281 OF 2017** **AGAINST THE JUDGMENT DATED 16.10.2015 PASSED IN R.C.A.NO.38 OF 2011, ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, THRISSUR, WHICH ARISES FROM THE ORDER DATED 20.12.2010 PASSED IN R.C.P.NO.8 OF 2008, ON THE FILE OF THE RENT CONTROL COURT, WADAKANCHERRY** ## **REVISION PETITIONER:** ## **MUHAMMED ASHRAF** **S/O.PANKAMVEETTIL ABOOBACKER RAVUTHAR,KECHERY DESOM, ERANELLUR VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT-680501 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHAMSUDHEEN.** **BY ADV. SRI.MAHESH V.MENON** ## **RESPONDENTS:** - **1 JOHNY S/O.KANNANAIKKAL KOCHAPPU @ THOMAS,KECHERY DESOM, ERANELLUR VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT.** - **2 LILLY W/O.KANNANAIKKAL JOHNY, KECHERY DESOM, ERANELLUR VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT.** - **3 SEBY RAJ S/O.KANNANAIKKAL JOHNY, KECHERY DESOM, ERANELLUR VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT.** 2 R.C.R No.281 of 2017 ## **4 SURENDRAN** **S/O.CHITTATH RAGHAVAN, PROPRIETOR,FANCY PARK, DOOR NO.10/557, KANNANIKAL KOCHAPPU JOHNY & SONS SHOPPING COMPLEX,ALOOR ROAD, KECHERY, THRISSUR DISTRICT.** ***THE NAME OF R4 IS CORRECTED AS SURENDRAN, AGED 48 YEARS,S/O RAGHAVAN,CHITTATH HOUSE,PERUMENNU, KECHERI P.O., THRISSUR DISTRICT - 680501 AS PER ORDER DATED 10/04/2019 IN I.A NO.2/2019.** **5 SUJESH RAJ AGED 35 YEARS, S/O.KANNANAIKKAL JOHNY, KECHERY DESOM, ERANELLUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT-680501** **BY ADV. RAJIT** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.R No.281 of 2017 ## **O R D E R** ## Ajithkumar, J The petitioner is the 1[st] respondent-tenant in R.C.P.No.8 of 2008 on the file of the Rent Control Court, Wadakkanchery. He filed this revision under section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, aggrieved by the judgment dated 16.10.2015 rendered by the Rent Control Appellate Authority (Addl. District JudgeIV), Thrissur in R.C.A.No.38 of 2011 whereby confirmed the order dated 20.12.2010 of the Rent Control Court (Munsiff), Wadakkanchery in R.C.P No.8 of 2008. 2. The 1[st] respondent filed the R.C.P.No. 8 of 2008 seeking eviction under Sections 11(2)(b), (11)(3), 11(4(i) and 11(4)(ii) of the Act. The 2[nd] respondent was said to be the sub-tenant. That petition was allowed insofar as the claim for eviction under Sections 11(2)(b), 11(3) and 11(4) (i) of the Act is concerned. The petition with respect to Section 11(4)(ii) of the Act was dismissed. The petitioner herein filed R.C.A No.38 of 2011 invoking the provisions of Section 18(1)(b) of the Act. Similar contentions as raised 4 R.C.R No.281 of 2017 before the Rent Control court were agitated before the Appellate Authority also. After a detailed re appreciation of evidence, the Appellate Authority found that the findings rendered by the Rent Control Court were devoid of any defect or illegality. The appeal was accordingly dismissed. 3. On 18.06.2018, when this matter came up for consideration, notice was ordered to the respondent on observing that there was no sufficient reason to admit the revision to file. However, an interim stay was ordered for a period of 4 weeks. The order of stay was extended from time to time. 4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for respondents Nos.2, 3 and 5. 5. The learned counsel appearing for the petitioner at the outset contended that the Rent Control Petition should not have been entertained by the Rent Control Court in the light of the dismissal of R.C.P.No.3 of 2003, which created a bar to this proceedings under Section 15 of the Act. Ext.B1 is a copy of the order in R.C.P.No.3 of 2003. That eviction 5 R.C.R No.281 of 2017 petition was filed by the 1[st] respondent in respect of the petition schedule shop room on the grounds that the petitioner sublet the room and also that the room was required for his elder son to start a business. Both courts below held that Ext.B1 would not create any bar. 6. In **Janakiamma and Others v. Bhaskaran** **Nambiar [2014 (4) KLT 931]** , this Court held that what is referred to in Section 15 of the Act is only on re-agitating issues. One of the differences between Section 11 of the Code of Civil Procedure, 1908, and Section 15 of the Act is, the former refers to "matter directly and substantially in issue" and in the latter, the word "matter" is conspicuously absent, and it denotes only "facts in issue". This is obvious because grounds of eviction in the Rent Control Act are based on personal action relatable to the landlord or tenant, which by very nature is recurring. The expression "substantially" used in Section 15 of the Act would necessarily indicate that the same issue must have been decided on merits in the former proceedings. 7. Again in **Radha Lekshmi G and others v.** 6 R.C.R No.281 of 2017 **Indian Saree House and others [2014 (2) KLT 770]** , this court held that the landlord would be entitled to file a second application if there is a change of circumstances. This eviction proceedings was taken out by respondents 1 to 3 on totally different grounds. As per Ext.A2, the petition schedule room was assigned in favour of the 3rd respondent and he, on the ground, inter alia, that he is in need of the room for his starting a business of his own filed this petition. Arrears of rent and subletting are the other grounds which are also sustained by the courts below. No further discussion is required to conclude that this Rent Control proceedings was initiated on totally different grounds and in totally changed circumstances. There cannot have a bar to this proceedings under section 15 of the Act and the finding of the court below in that regard is absolutely correct. 8. Insofar as the plea for eviction on the ground of bona fide need for own occupation of the 3[rd] respondent, no serious contention has been raised by the learned counsel appearing for the petitioner. It is true that the petitioner refuted the contentions of respondents 1 to 3 with reference 7 R.C.R No.281 of 2017 to the projected need. A plea based on the second proviso to section 11(3) of the Act was also set forth by the petitioner. What contended in the petition was that of 3[rd] respondent, having remained unemployed wanted to start a business of his own. It was not disclosed what business he wanted to establish. However, in evidence, clarifications have come through the oral testimonies of PWs1 and 2. In the light of the definite evidence in the matter, the contention of the petitioner in that regard faded away. The courts below after considering such evidence concluded that the need urged was genuine and bona fide, in our view, correctly. 9. It was contended that the 3[rd] respondent had other businesses. It was pointed out that one bakery and an educational institution are his business concerns. PW1 categorically denied that contention and convincingly explained to whom such institutions belong. In the light of the said evidence, a finding was entered into that the 3[rd] respondent did not have any business or avocation. We do not find any reason to interfere that finding also. 10. The plea based on the second proviso to Section 8 R.C.R No.281 of 2017 11(3) is not supported by any evidence. There has not been any evidence even to prove that the petitioner is conducting business in the petition schedule premises. The concurrent finding of the courts below, that the petitioner sublet the premises to the 4[th] respondent, has to be looked into in the above context. Evidence came on record through Ext.A8 and A9 had established that the business in the petition schedule shop room is being conducted by the 4[th] respondent and he took over possession of the room from the petitioner who was in occupation earlier. Parting with possession of the premises by the petitioner in favour of the 4[th] respondent has thus been proved. The petitioner did not venture to adduce any contra evidence. It was in the light of the said evidence and circumstances, the courts below concluded that the petitioner did not succeed in establishing the requirements of the second proviso to Section 11(3) of the Act. 11. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending 9 R.C.R No.281 of 2017 for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003 (2) KLT 230]** held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. Viewed in the light of the said proposition of law, there cannot be any hesitation to hold that the petitioner is not entitled to get the benefit of the second proviso to section 11(3) of the Act. 12. It was contended that another room is actually available with respondents 1 to 3 and therefore their claim for eviction in respect of the petition schedule shop room is untenable in the light of the first proviso to section 11(3) of the Act. The version of PWs 1 and 2 that the said room was let out to one Mr.Sulaiman was not seriously crossexamined. Of course, the Commissioner observed that the 10 R.C.R No.281 of 2017 said room was found locked. The evidence that came on record is the said room is still in occupation of Sri.Sulaiman and the same is not impeached. In that view of the matter, it cannot be said that respondents 1 to 3 are in vacant possession of that room. The only conclusion, therefore, possible is that the petitioner is liable to be evicted under Section 11(3) of the Act and the findings of the courts below in this respect are devoid of any defect or error. 13. We pointed out above that petitioner parted with possession of the petition schedule shop room to the 4th respondent. Despite adducing convincing evidence in that respect, the petitioner did not come forward to show that he continues to be in possession of the premises. 14. The contention of the learned counsel appearing for the petitioner is that Ext.A3 notice does not satisfy the requirements of the proviso to section 11(4)(i) of the Act and therefore the plea for eviction on this ground is untenable. The proviso to Section 11(4)(i) envisages that unless the landlord has sent a registered notice to the tenant, intimating the contravention of the prohibition 11 R.C.R No.281 of 2017 against sublease and the tenant has failed to terminate the sublease, within 30 days of the receipt of the notice or refusal thereof, an action for eviction cannot be legally possible. The contention of the learned counsel is that although it has been stated in Ext.A3 that the premises was sublet in contravention of the agreement, there was no demand to terminate the sublease or to surrender vacant possession on that ground. A plain reading of the said proviso indicates that obligation of a landlord before initiating an action for eviction on the ground of sub-lease is to send a registered notice to the tenant intimating him about the sublease in contravention of the prohibitory clause. The subsequent clause in the proviso creates the obligation on the part of the tenant to terminate the sublease within 30 days of receipt of the notice in order to avoid an action for eviction. The said view is justified by the decisions of this court in **Ramankutty v. Krishna Iyer [1976 KLT 331]** and **Vipin Chandran v. Xavier [2005 (4) KLT 850]** . A careful reading of Ext.A3 shows that it satisfies the requirements of giving intimation by the 12 R.C.R No.281 of 2017 landlord to the petitioner regarding contravention of the prohibition against sublease. Therefore the absence of a demand in Ext.A3 to the petitioner to terminate the sublease or to surrender vacant possession on that ground does not make the notice invalid. 15. In the circumstances, we hold that the eviction ordered by the court below under Section 11(4)(i) of the Act also is not liable to be interfered with. 16. Eviction was ordered on another ground also i.e. arrears of rent. The learned counsel appearing for the petitioner fairly conceded that the findings of courts below in that regard are supported by evidence. Therefore we find that no interference with that findings is warranted. 17. Accordingly, we conclude that there is no ground for interfering with the concurrent findings of the courts below which resulted in ordering eviction of the petitioner and also the 4th respondent from the petition schedule premises. No illegality, irregularity or impropriety in any of those findings is made out. Hence we refrain from interfering with the said findings in the exercise of powers of this court 13 R.C.R No.281 of 2017 under Section 20 of the Act. This revision is accordingly dismissed. 18. The learned counsel for the petitioner has made a request to afford six months' time for vacating the premises. The learned counsel for respondents 2, 3, and 5 conceded that six months can be allowed to surrender vacant possession of the petition schedule shop room. 19. Hence, 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) Respondent No.1-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 schedule building 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 building and further he shall conduct any business in the petition schedule building only on the strength of a 14 R.C.R No.281 of 2017 valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondent No.1-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 respondent No.1tenant 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 schedule building 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