Muhammed Gasni v. M.V Abdul Rahman and Salinisa

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** **RCRev..No.63 OF 2020** **AGAINST THE JUDGMENT IN RCA 6/2017 OF II ADDITIONAL DISTRICT COURT & SESSIONS COURT,PALAKKAD** **AGAINST THE ORDER IN RCP 22/2015 OF ADDITIONAL MUNSIFF COURT, PALAKKAD** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **MUHAMMED GASNI AGED 78 YEARS S/O. MUHAMMED KOYA, RESIDING AT COIMBATORE ROAD, KOPPAM AMSOM DESOM, PALAKKAD MUNICIPALITY, PALAKKAD TALUK.** **BY ADVS. SRI.ABDUL JAWAD K. SRI.U.MUHAMMED MUSTHAFA SMT.A.GRANCY JOSE** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 M.V.ABDUL RAHMAN AGED 76 YEARS S/O. UMMAR RAWTHER, RESIDING AT 100 FT. ROAD, GANDHIPURAM, COIMBATORE DISTRICT, TAMIL NADU 641 012** **2 SALINISA, AGED 50 YEARS W/O. SAINULABDHEEN, RESIDING AT ARUMUGHA GARDENS, KUNNNUR AMSOM DESOM, PALAKKAD 678 013.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **2** ## **RCRev..No.63 OF 2020** ## **ORDER** ## **C.S.DIAS, J.** The revision petitioner was the appellant in RCA No.6/2017 on the file of the Rent Control Appellate Authority (in short 'Appellate Authority'), Palakkad. The respondent in this revision petition were the respondents in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Palakkad, in RCP No.22/2015. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition (RCP) as 'petitioners' and 'respondent'. 3. The petitioners had filed the RCP against the respondent, inter alia, pleading as follows: The petition schedule shop room (for brevity, **RCRev..No.63 OF 2020** **3** hereinafter referred to as 'shop room') belonged to the 1[st] petitioner and the husband of the 2[nd] petitioner as per agreement dated 2.1.1998, the shop room was given on lease to the respondent on a monthly rent of Rs.400/-. Subsequently, the rent was enhanced to Rs.1,500/-. The respondent paid rent only up to February, 2013. . since the sid date, the respondent has kept the rent in arrears without any sufficient cause. When the landlord went to the shop room demanding rent, they found a third party doing business in the shop room. On enquiry, it was found that the respondent has given the shop room on sub-lease to a 3[rd] party. The respondent has advanced the amount from the third party has sub-leased the shop room for the higher rate of rent without the knowledge or consent of the petitioners. After the death of the 2[nd] petitioner's husband, she has financial hardship. She has completed her graduation in **RCRev..No.63 OF 2020** **4** Chemistry and has done a diploma course as a Lab Technician. She bona fide needs the shop room to start a laboratory which would ensure her economic stability. The petitioners have no opther buildings in their vacant possession. There are other alternate rooms in the locality which are suitable for the respondent to shift his business. The respondent is not depending on the income derived from the business being carried in the shop room for his livelihood. The petitioners sought vacant possession of the shop room on 30.5.2014 by issuing a registered lawyer notice. Despite receipt of the notice, the respondent has not vacated the shop room. Hence the petitioners are entitled for an order of eviction under Sections 11 (2) (b), 11(3) and 11 (iv)(i) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). 4. The RCP was resisted by the respondent, **RCRev..No.63 OF 2020** **5** who filed a counter statement, inter alia, pleading as follows: There is no landlord-tenant relationship with the 2[nd] petitioner. The 2[nd] petitioner is not entitled to urge the ground of bona fide need for evicting the respondent from the shop room. The petitioner does not have the qualification or experience to conduct a laboratory in the shop room as alleged in the RCP. The need projected by the petitioners is only a ruse to evict the respondent. The respondent has not sub-leased the shop room, but his son is carrying on the business in the shop room due to his old age. The respondent has issued a reply notice denying the allegations in the lawyer notice sent by the petitioners. The respondent is depending on the income derived from the business being conducted in the shop room. The petitioners are economically affluent and there is no need or necessity for them to run a business in the shop room after evicting **RCRev..No.63 OF 2020** **6** the respondent. The petitioners are not entitled for any relief as claimed in the RCP. 5. The 2[nd] petitioner was examined as PW1 and Exts.A1 to A8 were were marked through her. The respondent was examined as RW1. 6. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the shop room under Sec.11(2)(b) and 11(3) of the Act. The petitioners prayer for an order of eviction under Section 11 (4)(1) of the Act was rejected. The respondent was directed to surrender vacant possession of the shop room within a period of one month from the date of order. 7. Aggrieved by the impugned order passed by the Rent Control Court, the respondent preferred RCA No.6/2017 before the Appellate Authority. The Appellate Authority by the impugned judgment dated 31.10.2019 dismissed **RCRev..No.63 OF 2020** **7** the appeal and confirmed the order of eviction passed by the Rent Control Court. 8. It is challenging the judgment passed by the Appellate Authority in RCA No.6/2017 and the order passed by the Rent Control Court in RCP No.22/2015, that this Rent Control Revision is filed. 9. Heard Sri.K.Abdul Jawad, the learned counsel for the revision petitioner. 10. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the shop room under Secs.11 (2)(b) and 11(3) of the Act. According to him, the petitioners have not proved their bona fide need as projected in the RCP. The courts below have failed to take note of the fact that the revision petitioner had paid the entire arrears of rent. Hence the order of eviction under Section 11 (2) (b) of the Act is erroneous and liable to be set aside. The learned counsel also **RCRev..No.63 OF 2020** **8** argued that the courts below ought to have given the revision petitioner the benefit under the provisos to Section 11 (3) of the Act. Both the courts below have not analysed the pleadings and evidence in its proper perspective. Therefore, he prayed that the revision petition be allowed and the concurrent findings of the courts below be set aside. 11. The question that emerges for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below by ordering eviction of the respondent under Secs.11(2)(b) and 11 (3) of the Act. 12. It is trite law that, this Court while exercising its revisional jurisdiction under Sec.20 of the Act is not expected to re-appreciate the entire pleadings and evidence on record. This Court is only supposed to examine the legality of **RCRev..No.63 OF 2020** **9** the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings and evidence on record. 13. The revision petitioner/respondent has admitted that he has not paid rent since February, 2013. Though the petitioners had claimed rent at a higher amount, the respondent could have paid or deposited the admitted rent. He has not paid any amount to the petitioners as rent. Thus, undisputedly there is arrears of rent. Therefore, the courts below have rightly found that the petitioners are entitled for an order of eviction under Section 11 (2) (b) of the Act. 14. Now coming to the question whether the petitioners are entitled for an order of eviction under Section 11 (3) of the Act. We find that the 2[nd] petitioner has given evidence as PW1. She has produced and proved Ext.A7 certificate which shows that she has passed her graduation in Bio- **RCRev..No.63 OF 2020** ## **10** chemistry. She has also completed a Laboratory Technician diploma course. Thus, the onus of proof that the 2[nd] petitioner is not competent to start a laboratory has shifted from the petitioners to the respondent. The omnibus plea of the respondent that the 2[nd] petitioner is not qualified to start a laboratory has to necessarily fail, due to lack of sufficient material. 15 It is settled law in a catena of decisions that it is not for the tenant to dictate the choice of the landlord in deciding his proposed business. 16. It is also trite, as held in **Deep Chandra Juneja vs Lajwanti Kathuria [ AIR 2008 SC 3095]** that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the need put forward by the landlord is genuine or not, and is not a ruse for eviction. **RCRev..No.63 OF 2020** ## **11** 17. The Supreme Court in **Sarla Ahuja vs United India Insurance Company Ltd [(1998) 8** **SCC 119],** held that when a landlord asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide. 18. The courts below after appreciating the pleadings and evidence on record have come to the legitimate conclusion that the bona fide need projected by the petitioner is genuine. It is after finding the need to be bona fide that the courts below have passed an order of eviction under Sec.11 (3) of the Act. We do not find any reason to take a contrary view from the findings that have ## **RCRev..No.63 OF 2020** ## **12** been arrived at by the courts below because in view of the empathetic oral testimony of PW1 and Ext.A7 certificate, we have no doubt in our mind that the 2[nd] petitioner is competent to start a laboratory. Thus, the bona fide need projected by the petitioners in the RCP is found to be genuine and true. 19. Now coming to the question whether the RCP is hit by the first proviso to Section 11 (3) of the Act. We find that there is no material on record to prove that the petitioners have a vacant shop room in their possession similar to that of the petition schedule shop room. The respondent has not substantiated the said aspect, though the burden was on him. Hence the RCP is not hit by the first proviso to Section 11 (3) of the Act. 20. Coming to the next question whether the respondent is entitled to the benefit of the second proviso to Section 11 (3) of the Act. On going **RCRev..No.63 OF 2020** ## **13** through the evidence on record, we have found that the respondent is not doing any business in the shop room. Admittedly, it is his son who is carrying on tailoring business in the shop room. Thus, it cannot be said that the respondent is eking his livelihood from the income generated from the business conducted in the shop room. Therefore, he is not entitled to the benefit of the first limb of the second proviso to Section 11 (3) of the Act. Similarly, he has not proved that there are no other shop rooms in the locality which is suitable for him to shift his business, which burden was also on him. The respondent ought to have taken out an Advocate Commissioner and produced cogent materials to substantiate that he is entitled for the benefit of the second limb of the second proviso to Section 11 (3) of the Act. The respondent has miserably failed to prove the said aspect. Hence we find that the respondent is not entitled to the **RCRev..No.63 OF 2020** **14** benefit under the second proviso to Section 11 (3) of the Act. 21. In the totality of the facts and circumstances of the case, the pleadings and evidence on record and after going through the order and judgment of the courts below, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered the eviction of the respondent under Secs.11 (2) (b) and 11 (3) of the Act. We confirm the concurrent findings of the Rent Control Court in RCP 22/2015 and the Appellate Authority in RCA No.6/2017 . 22. At the said point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the shop room. Taking into consideration the fact that the RCP was filed in the year 2015 and , the Rent Control Appeal was filed in the year 2017, we feel that the revision ## **RCRev..No.63 OF 2020** ## **15** petitioner has got more than sufficient time to vacate the shop room. However, considering the fact that the revision petitioner has to find an alternate shop room, we feel that a reasonable time period of six months can be granted to the revision petitioner to shift his business. In the said circumstances, we grant the revision petitioner six months' time to vacate the shop room on the following conditions: (1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop rooms within six months from today. (2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent **RCRev..No.63 OF 2020** **16** ## without default. (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. In the result, this revision petition is accordingly dismissed. **Sd/-K.HARILAL** **==> picture [387 x 108] intentionally omitted <==**