Muhammed Jerees v. Darunnajath Arabic College

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 10TH DAY OF APRIL 2017/20TH CHAITHRA, 1939** **RCRev..No. 102 of 2017 () --------------------------** **AGAINST RCA 18/2016 of THE RENT CONTROL APPELLATE AUTHORITY/ADDL.DISTRICT COURT-IV, KOZHIKODE DATED 21-10-2016** **AGAINST RCP 25/2014 of THE RENT CONTROL COURT/PRL.MUNSIFFII,KOZHIKODE- DATED 31-10-2015** **REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT IN RCP: --------------------------------------------------------** ## **MUHAMMED JEREES** **S/O.MUHAMMED KOYA, GAIZE MATERIALS, 6/630(OLD NO.2/500 X), KOHINOOR BUILDING, NALLALAM AMSOM DESOM, PIN-673019** **BY ADVS.SRI.MATHEWS K.UTHUPPACHAN SRI.SHARAN SHAHIER SRI.TERRY V.JAMES** ## **RESPONDENT/RESPONDENT IN RCA/PETITIONER IN RCP:** **------------------------------------------------** **DARUNNAJATH ARABIC COLLEGE, BY SECRETARY, KANNAMBATH ABDUL AZEEZ, S/O.IMBICHI MAMMED HAJI, KOKKALLOOR, KOONANCHERRY P.O., BALUSERRY, KOZHIKODE-673612.** **R1 BY ADV. SRI.K.M.FIROZ** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10-04-2017 ALONG WITH R.C.R. NO.103/2017 & CONN. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VPS** **“C.R.”** **K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ.** **-----------------------------------------R.C.R. Nos.102, 103, 104, 105, 106, 107, 108, 109, 115, 132, 133 of 2017, 389, 390 & 391 of 2016 ----------------------------------------Dated this the 10[th] day of April, 2017** **O R D E R --------------** ## _**Harilal, J.**_ 1.The respondents/revision petitioners herein are tenants occupying different shop rooms owned by the petitioner/respondent herein. According to the petitioner/respondent herein, the petitioner/respondent herein is an educational institution namely Poonanchery Darunnajath Arabic College. The petitioner/respondent herein is a society registered under the provisions of the Societies Registration Act and the society is conducting educational institutions. The petitioner institution is in bona fide need of the entire building to start a teachers training institute. Therefore the petitioner/respondent herein has filed a petition seeking eviction under section 11(3), 11(4)(ii) of the Kerala Buildings R.C.R.No.102/2017 & Conn. Cases 2 - (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for brevity) against all the tenants, 28 in numbers. - 2.The building consists of 22 shop rooms in the second floor. The Managing Committee of the Institution took a decision to file a petition seeking orders granting eviction of all the tenants and the same was approved by the general body held on 27.9.2013. The petitioner/respondent herein has no other suitable building in possession for starting the educational institution and the petition schedule building is the most suitable for the said purpose. Hence the petitioner/respondent herein made a demand to surrender the shop rooms for own occupation; but the respondents/revision petitioners herein rejected the said demand. In the above circumstances, the petitioner/respondent herein filed Rent Control Petitions seeking eviction. - 3.The respondents/revision petitioners herein filed objection raising identical contentions, in so far as the pleadings, except the pleadings pertaining to the nature of occupation. The respondent in R.C.P. No.24 of 2014 is conducting a textile shop in the petition schedule building, the respondent in R.C.R.No.102/2017 & Conn. Cases 3 R.C.P.No.25 of 2014 is conducting a textile shop in the petition schedule building, the respondent in R.C.P.No.16 of 2014 is conducting a textile shop in the petition schedule building, the respondent in R.C.P.No.19 of 2014 is conducting business in the petition schedule building, the respondent in R.C.P.No.18 of 2014 is conducting a jewellery shop in the petition schedule building, the respondent in R.C.P.No.27 of 2014 is conducting a photo studio in the petition schedule building, the respondent in R.C.P.No.23 of 2014 is conducting a tailoring shop in the petition schedule building, the respondent in R.C.P.No.20 of 2014 is conducting a textile ready made shop in the petition schedule building, the respondent in R.C.P.No.17 of 2014 is conducting a stationery shop in the petition schedule building, the respondent in R.C.P.No.47 of 2014 is conducting a driving school in the petition schedule building, the respondent in R.C.P.No.15 of 2014 is conducting a driving school in the petition schedule building, the respondent in R.C.P.No.14 of 2014 is conducting a driving school in the petition schedule building, the respondent in R.C.P.No.26 of 2014 is conducting a foot ware shop and the respondent in R.C.P.No.36 of 2014 is R.C.R.No.102/2017 & Conn. Cases 4 conducting a tailoring shop respectively in the petition schedule building. According to them, the petitioner/respondent herein is not in bona fide need of the petition schedule building to start a teachers training institute as contended by them and the need put forward is only a ruse for eviction and to let out the room for higher rent to others. It is also contended that the building is not suitable for the proposed need. The respondents/revision petitioners herein are depending upon the business in the petition schedule building and that there are no other suitable rooms available in the locality for shifting their business. 4.On the aforesaid rival contentions, both parties adduced evidence consists of oral testimony of PW1, RW1 to RW14 and Exts.A1 to A21 and Exts.C1 to C2(a). After evaluating the aforesaid evidence on record, the Rent Control Court allowed all the petitions and directed the respondents/revision petitioners herein to surrender the vacant possession of their respective petition schedule buildings to the petitioner/respondent herein. Feeling aggrieved, though the respondents/revision petitioners herein have filed appeals R.C.R.No.102/2017 & Conn. Cases 5 before the Appellate Authority, after re-appreciating the evidence on record, the Appellate Authority also concurred with the findings of the Rent Control Court and dismissed all the appeals. Thus, the concurrent findings of the courts below are challenged in this revision under section 20 of the Act. - 5.Heard the learned counsel for the petitioner/respondent herein - and the learned counsel for the respondents/revision petitioners herein. - 6.The sum and substance of the argument advanced by the learned counsel for the respondents/revision petitioners is that though the original petition was filed under section 11(3) of the Act, the courts below have treated all the petitions as one filed under section 11(7) of the Act and rendered order and judgment accordingly. This method has caused prejudice to the respondents/revision petitioners. Secondly it is contended that though 28 tenants are occupying the building, initially the petitions seeking eviction were filed against 19 tenants only and that itself would show the lack of bona fide and the petitioner/respondent herein has no right and privilege to pick and choose certain tenants when others are also occupying the R.C.R.No.102/2017 & Conn. Cases 6 very same building. - 7.On the other hand, the learned counsel for the petitioner/respondent herein advanced arguments to justify the concurrent findings of the courts below and submitted that though the petitions were filed under section 11(3) of the Act, the petitions were treated as filed under section 11(7) of the Act in the light of the decision laid down by this Court in **Thankamma v. Vaikkom Jumamasjid Mahal Sangham** (1987 KHC 581). 8. Going by the impugned judgment, it could be seen that though the petitions were filed under section 11(3) of the Act, the courts below considered the petitions under section 11(7) of the Act in the light of the decision of this Court in **Thankamma** **v. Vaikkom Jumamasjid Mahal Sangham** (Supra) wherein this Court held that “if a public institution of the kind mentioned in section 11(7) applies to the Rent Control Court for an order to put the landlord in possession of the building on the ground that it needs the building for the purpose of the institution, it's application is not liable to be rejected merely because of the particular sub-section is not quoted in the R.C.R.No.102/2017 & Conn. Cases 7 application. Nor could it be rejected merely on account of making a mention of sub section 3 of Section 11 in the application. Quoting a wrong provision of law to the application for eviction shall not work to the fatal detriment of the application, if the averments in the application are sufficient to make out the case otherwise.” - 9.Coming to the instant case, it is not disputed that the petitioner/respondent herein is a charitable society registered under the Societies Registration Act and the society is conducting other educational institutions. Thus the status of the petitioner/respondent herein is not disputed by the respondents/revision petitioners herein also. Going by section 11(7) of the Act, the petitioner/respondent herein is required to prove the need only and the need must be for the purpose of institution. In the instant case, the eviction of the respondents/revision petitioners herein are sought for from the petition schedule building is for starting a teachers training institute. The statutory retirement under section 11(7) of the Act are not rigorous as that of the bona fide need under section 11(3) of the Act. Thus, the pleadings in the counter statement R.C.R.No.102/2017 & Conn. Cases 8 itself would disclose that the respondents/revision petitioners have rightly understood the need put forward by the petitioner/respondent herein in its correct perspective and contested the petitions. We find that no prejudice was caused to the respondents/revision petitioners herein by considering the Rent Control Petition, as the petitions were filed under section 11(7) of the Act. 10.It has come out in evidence that all the rooms are suitable for the purpose of running an education institution. The availability of other buildings is not a matter to be considered under section 11(7) of the Act. But the courts below have considered the availability of alternative buildings also in the locality for shifting the business in the petition schedule building and found that the respondents/revision petitioners herein have failed to prove that no other buildings are available in the locality for shifting the business in the petition schedule building. Thus, the courts below have meticulously considered the evidence on record and passed the impugned order and judgment in its correct perspective. In so far as the second contention is concerned, the parties are at ad idem that the R.C.R.No.102/2017 & Conn. Cases 9 - petition seeking eviction was filed against all the tenants for the occupation and the mere fact that certain petitions were filed initially is no a reason to doubt the bona fides. 11. We do not find any reason to interfere with the concurrent findings of the courts below. - 12.At last, the learned counsel appearing for the respondents/revision petitioners herein urged for granting one year time to vacate the premises. Per contra, the learned counsel appearing for the petitioner/respondent herein opposed the said request and submitted that a reasonable time alone can be granted. Having regard to the facts and circumstances of the case, we are inclined to grant a reasonable time to the respondents/revision petitioners herein to vacate the petition schedule building. The respondents shall vacate the petition schedule building on or before 31.12.2017 on the following conditions:- (i) The respondents/revision petitioners herein shall file affidavits, expressing unconditional undertaking that they will vacate the petition schedule shop room without any obstruction on or before 31.12.2017, within two months from the date of receipt of the copy of this order. R.C.R.No.102/2017 & Conn. Cases 10 (ii) They shall deposit the entire arrear, if any, before the Rent Control Court within a period of 45 days from today. (iii) The respondents shall continue to pay the rent, without default. (iv) In the event of failure to comply with any of the conditions as aforesaid, the time granted to the respondents to vacate the premises would stand automatically vacated and the Rent Control Court will be at liberty to proceed with the execution proceedings. **Sd/-** **K.HARILAL, JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** vps