Muhammed Basheer v. Abdul Kader and Ayishabevi

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **RCRev.No. 254 of 2017** **AGAINST THE ORDER IN RCA 94/2016 of THE RENT CONTROL APPELLATE AUTHORITY-II/ II ADDL. DISTRICT JUDGE, KOZHIKODE DATED 29-03-2017** **AGAINST THE JUDGMENT IN RCP 112/2013 of THE RENT CONTROL COURT/ ADDITIONAL MUNSIFF-I, KOZHIKODE DATED 29-02-2016** **REVISION PETITIONER/ /APPELLANT/ RESPONDENT :** **---------------------------------------------** **MUHAMMED BASHEER, AGED 58 YEARS, S/O LATE P.P.MOIDEEN KOYA, ISSABRAYIL HOUSE, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, NOW RESIDING AT LAMAS, KOYAPARAMBA, SOUTH BEACH, KOZHIKODE- 673 001** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA SMT.UMMUL FIDA SRI.E.C.AHAMED FAZIL** **RESPONDENT/ RESPONDENT/ PETITIONER :** **-------------------------------------** **1. ABDUL KADER, AGED 60 YEARS, S/O A.M.KOYATTI, THOPPAYIL HOUSE, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK - 673 314** **2. AYISHABEEVI, AGED 50 YEARS, W/O ABDUL KADER, THOPPAYIL HOUSE, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK- 673 314** **R1 BY ADV. SRI.SRINATH GIRISH (CAVEATOR)** **BY SRI.SRINATH GIRISH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RKM** ## **K. HARILAL & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **R.C.R. No. 254 of 2017** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 12[th] day of July, 2018** ## **ORDER** ## _**K. Harilal, J.**_ This revision petition has been filed by the tenant challenging the concurrent findings of the courts below in RCP.No.112/2013 of the Rent Control Court, Kozhikode and in RCA.No.94/2016 of the Rent Control Appellate Authority, Kozhikode whereby an order has been passed against him under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act'). The respondent/ landlord filed the aforesaid RCP under Section 11(3) stating that he was working in Saudi Arabia and that due to nationalization in Saudi Arabia, he lost his job and left Saudi Arabia and that at present, he is a man without any job or sources of income. Therefore, he _bona fide_ needs vacant possession of the petition scheduled shop room to start textile business for his financial stability. The respondent is working in Saudi Arabia and he is getting a good income from his job at Saudi Arabia. It is averred in the petition that the petitioner has no other suitable building of his own to start the said business. R.C.R. No. 254 of 2017 2 The respondent is not depending upon the income from the business carried on in the tenanted premises and several other vacant shop rooms are available in the locality to shift his business from the tenanted premises. 2. The respondent 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 respondent, the petitioner is still working in Saudi Arabia and it is not correct to say that he lost his job in Saudi Arabia and he left Saudi Arabia. Further, he is having many buildings at Koyrad, near Beach Hotel, Kozhikode, near Muriaad Bridge and at Pushpa Junction, Kallai road. That apart, he has family property from which he will get huge income. In short, according to the respondent, the petitioner is an economically affluent person. So absolutely, there is no necessity to start a textile business for his economic stability. Further, the respondent contended that in the 2[nd] floor of the building, there are suitable rooms in the possession of the petitioner himself for starting the textile business and the rooms are 42/1396 and 42/1397. According to the petitioner, he is mainly depending on the income derived from R.C.R. No. 254 of 2017 3 the petition scheduled shop room for his livelihood for the reason that he lost his job in Saudi Arabia due to nationalization in Saudi Arabia. No other suitable buildings are available in the locality to shift his business from the tenanted premises. Therefore, he is entitled to get protection under the 2[nd] proviso to Section 11(3). 3. On the aforesaid rival contentions, both parties adduced evidence which consists of oral testimony of PW1, RW1 and documentary evidence Exts.A1 to A6 and B1 and B2 and Ext.C1 to C3 Reports. On appraisal of the aforesaid evidence on record, the courts below concurrently passed the order of eviction under Section 11(3) of the Act on a finding that the need projected in the petition is _bona fide_ and the respondent is not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. The legality and propriety of the aforesaid findings whereby an order of eviction has been passed concurrently against him under Section 11(3) are challenged in this revision petition. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 5. The sum and substance of the argument R.C.R. No. 254 of 2017 4 advanced by the learned counsel for the revision petitioner is that the courts below have failed to appreciate the evidence on record with respect to the availability of other buildings in the possession of the petitioner. Further, it is contended that the subsequent letting of the adjacent shop room to another tenant would prove the lack of _bona fides_ of the _bona fide_ need. The learned counsel for the petitioner drawn our attention to the oral evidence of PW1 and Commission Report Exts.C1 to C3. More specifically, it is contended that Ext.C3 Report would show that the adjacent shop room, which was surrendered by the respondent himself earlier was subsequently let out to another tenant. 6. Per contra, the learned counsel for the respondent advanced arguments to justify the concurrent findings of the courts below that the need is _bona fide_ and the petitioner has no other vacant or suitable buildings of his own in his possession to start the proposed business. It is further contended that the respondent has not discharged the initial burden of proof under the first proviso to Section 11(3) as no evidence was brought out before the courts below to establish that the petitioner has other vacant buildings of his own to start R.C.R. No. 254 of 2017 5 the said business. 7. In view of the arguments at the bar, the sole question to be considered in this revision is whether there is any illegality or impropriety in the concurrent findings of the courts below that the respondent has failed to prove that the petitioner has other vacant building of his own to start the said business. 8. At the outset, it is to be remembered that the scope and extent of interference in this revision is confined to legality and propriety of the concurrent findings of the courts below. There is no scope for re-appreciation of evidence unless it is found that the findings of the courts below are vitiated by perversity or non-consideration of material evidence on record. In the instant case, the specific case of the respondent is that the courts below have failed to evaluate the findings on record with respect to the availability of other vacant buildings in the possession of the petitioner. We have meticulously gone through the findings of the courts below made under the first proviso to Section 11(3). It is trite law that the initial burden is on the tenant to prove that the landlord has in his possession another vacant and suitable buildings of his own. Going by the R.C.R. No. 254 of 2017 6 pleadings in the original petition itself, it is specifically averred that the petitioner has no other vacant and suitable buildings of his own for starting the proposed business. The first petitioner was examined as PW1 and in chief examination also, he stood by the said version and in cross examination, the respondent could not shatter the evidence of PW1 in chief examination that he has no other vacant and suitable buildings of his own to start the said business. It is pertinent to note that in pleadings and evidence, the petitioner has no case that he has no other buildings of his own to start the business. But, his case is that he has no other suitable and vacant buildings of his own to start the business. In Ext.C1 Report, the Commissioner has reported that in the 2[nd] floor of the building, two shop rooms were found locked. No attempt was made from the respondent to prove that those locked rooms were vacant rooms kept in occupation of the petitioner. When the petitioner was examined as PW1, no question was put to him suggesting that the rooms found locked in the 2[nd] floor of the building were vacant suitable rooms to start the proposed business. Thus, in the absence of any evidence to prove that the rooms in the 2[nd] floor were vacant suitable rooms in the possession of the R.C.R. No. 254 of 2017 7 petitioner, it can be safely concluded that the revision petitioner has failed to discharge the initial burden of proof under the 1[st] proviso to Section 11(3) of the Act. Moreover, it has come out in evidence that the alleged rooms in the possession of the petitioner are in the 2[nd ] floor of the building; whereas the petition schedule shop room is one in the ground floor of the building. In the pleadings as well as in the evidence, the petitioner has maintained the consistent stand that the other rooms are not suitable to start the textile shop. In _**Dhannalal v. Kalawatibai (2002 (6) SCC 16)**_ , the Supreme Court held that the shops on the first floor cannot be as suitable as one on the ground floor to carry on a retail business. Here, the alleged rooms are in the 2[nd] floor of the building. Therefore, even if the rooms are vacant, the petitioner is justified in holding the stand that the rooms in the 2[nd ] floor of the building is not suitable for conducting a textile shop particularly when he has tenanted rooms in the ground floor. In the above view, we do not find any kind of illegality or perversity in the appreciation of evidence with respect to the evidence on record under the first proviso to Section 11(3) of the Act. R.C.R. No. 254 of 2017 8 9. Further, it is contended that another shop room, which was in the possession of the respondent was vacated in the year 2002 and the same was further rented out to another person. Therefore, there is no _bona fides_ in the case of the petitioner that he intends to start the textile business in the petition schedule shop room and the aforesaid shop room is situated adjacent to petition schedule shop rooms. It is pertinent to note that in the rent control petition itself, it is specifically averred that the tenant, who occupies the adjacent room has already agreed to vacate the said room to start the textile business as and when required and for that reason, he has not proceed against him by filing a rent control petition. When the petitioner was examined as PW1, he was confronted with questions suggesting that the said adjacent room was rented out to another person. In cross examination also, PW1 consistently maintained the stand that the said room was rented out to one Firoz and Firoz agreed that he will vacate the shop room for starting the textile business as and when required by the petitioner. The learned counsel for the revision petitioner pointed out that the said shop room was again rented out to another tenant. But, we find that no reliable R.C.R. No. 254 of 2017 9 evidence has been adduced to prove that the shop room was rented out to a tenant other than Firoz as told by the petitioner. In the absence of reliable evidence to prove the present occupation of the adjacent shop room, the courts below are justified in believing the evidence of PW1 that it was rented out to one Firoz and he agreed to vacate the premises as and when required. 10. In the above context, the question that emerges for consideration is, whether the temporary occupancy of a vacant room, which was projected for the common need, for the time being, by a third party during the pendency of other rent control petitions would nullify the _bona fides_ of common need projected under Section 11(3) of the Act, in a batch of rent control petitions filed against different tenants? We are of the opinion that the temporary occupancy of the vacant rooms for the time being projected by the third party has no fundamental impact on the _bona fides_ of the need for the tenanted premises in other rent control petitions because a landlord is not expected to keep other rooms vacant till he gets the vacant possession of all other tenanted premises, which are involved in Rent Control Petitions. Indisputably, there is an inordinate delay in getting a final verdict in a Rent Control R.C.R. No. 254 of 2017 10 Petition after appeal and revision. Therefore, it cannot be insisted that the landlord should keep the rooms which are surrendered by other tenants vacant, for long years, to prove his _bona fide_ need to start business in other tenanted premises. In the above analysis, we do not find any kind of illegality or perversity in the appreciation of evidence under the first proviso to Section 11(3) of the Act. No other argument or point was raised before us in this revision petition. Therefore, this revision petition will stand dismissed. The learned counsel for the revision petitioner/ tenant prays for some time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner/ tenant is given six months time from today to vacate the premises on the following conditions : 1. The revision petitioner/ tenant shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of copy of this order. 2. The revision petitioner/ tenant shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of six months' from today. R.C.R. No. 254 of 2017 11 3. The affidavit shall be filed within one week from the date of receipt of the copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent/ landlord is entitled to enforce the order. Sd/- **K. HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM