Nabeesa Umma and others v. Mohanakrishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **&** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933** **RCRev..No. 113 of 2011()** **----------------------------------** **RCA.16/2009 o RENT CONTROL APPELLATE AUTHORITY(DISTRICT COURT), PALAKKAD. RCP.7/2006 of RENT CONTROLLER ( MUNSIFF-MAGISTRATE COURT), MANNARKAD** **....................** ## **REVISION PETITIONERS/RESPONDENTS/RESPONDENTS** **------------------------------------------------------------------------------------** **1. NABEESA UMMA,AGED 77 YEARS, W/O.LATE MOHAMMED, PARAMMAL,M.P.13/982,KANNAYATH ALIAS BASHEER MANZIL, ARAKURUSSI AMSOM DESOM, MANNARKKAD TALUK.** ## **2. RAHMATH,AGED 47 YEARS,D/O.NABEESA UMMA,** **ARAMMAL,M.P.13/982,KANNAYATH ALIAS BASHEER MANZIL, ARAKURUSSI AMSOM DESOM,MANNARKKAD TALUK.** **3. MOHSEEN.AGED 49 YEARS, S/O.NABEESA UMMA,ARAMMAL,M.P.13/982,KANNAYATH ALIAS BASHEER MANZIL, ARAKURUSSI AMSOM DESOM, MANNARKKAD TALUK.** **BY ADV. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.RABIA BEEGAM T.K. SRI.JOBI.A.THAMPI SMT.M.KABANI DINESH** ## **RESPONDENT(S): APPELLANT/PETITIONER/RESPONDENTS/RESPONDENTS** **-----------------------------------------------------------** **1. MOHANAKRISHNAN,AGED 48 YEARS, S/O.PARVATHIKUTTY AMMA,MALANKATTIL, ARAKURUSSI AMSOM DESOM,MANNARKKAD TALUK,BY HIS P/A. P.T.SREEKUMARANUNNI,AGED 71 YEARS, S/O.POTHANA THOTTAPPURATH PARVATHIKUTTY NESHIAR, ARAKURUSSI AMSOM DESOM,MANNARKKAD TALUK.** **tss** ## **RCR. NO.113/2011** **2. RAMLA,AGED ABOUT 53 YEARS,** - **D/O.NABEESA UMMA,PARAMMAL,M.P.13/982,KANNAYATH ALIAS BASHEER MANZIL, ARAKURISSI AMSOM DESOM, MANNARKAD P.O.MANNARKKAD TALUK, PIN. 678 548.** **3. MOHAMMED BASHEER,AGED ABOUT 43 YEARS, S/O.NABEESA UMMA,PARAMMAL,M.P.13/982,KANNAYATH ALIAS BASHEER MANZIL, ARAKURISSI AMSOM DESOM, MANNARKKAD P.O., MANNARKKAD TALUK. 678 548.** **BY ADV. SRI.P.B.SAHASRANAMAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **ORDER ON IA. NO.592/2011 IN RCR. NO.113/2011** ## **DISMISSED** **01/06/2011** **SD/- PIUS C.KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN, JUDGE** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ.** ## **= = = = = = = = = = = = = = = = R.C.R. NO. 113 OF 2011** **= = = = = = = = = = = = = = = = Dated this the 1[st] day of June, 2011.** ## **J U D G M E N T** ## _**Pius C. Kuriakose, J.**_ The tenants are the revision petitioners and they challenge the judgment of the Rent Control Appellate Authority ordering eviction against them on the ground under Section 11(8) of the K.B.R.C.Act reversing the order of the Rent Control Court declining eviction on that ground. The landlord invoked grounds of arrears of rent u/s 11(2), bonafide need for own occupation u/s 11 (3), cessation of occupation u/s 11(4)(v) and need for additional accommodation u/s 11(8) of the Act 2 of 1965. The Rent Control Court ordered eviction on the ground of arrears of rent and we are told that the order of eviction u/s 11(2) was ## **R.C.R. NO. 113 OF 2011** -:2:- subsequently got vacated by making requisite deposits. The Rent Control Court declined eviction on the grounds u/Ss. 11(3), 11(4) and 11 (8) and the Appellate Authority under the impugned judgment has ordered eviction only u/s 11(8). The Appellate Authority has taken the view that on the pleadings raised by the landlord it is the ground u/s 11(8) which applies to the case and not the ground u/s 11(3). 2. We, in this revision, need to be concerned with the correctness of the order of eviction passed u/s 11(8). The need projected by the landlords in the context of S.11(8) was that the petition schedule building is upstair portion of a double storied building belonging to the landlord. The landlord's wife namely Smitha is conducting tailoring business in the name and style of “Puthuma Ladies Tailoring” in a portion of the ## **R.C.R. NO. 113 OF 2011** -:3:- ground floor of this building. The petition schedule building is required so that the landlord's wife can expand her on going business by engaging tailors for making garments and by conducting sale of the garments so made. Bonafides of the need was stiffly disputed. The tenant contended that he is eking out his livelihood by the income he derives from the business which is conducted in the petition schedule building. It was also contended that the hardship which will be sustained to the tenant if the order of eviction is passed will be irreparable. 3. The case was enquired into by the Rent Control Court and the evidence on the side of the landlord was the oral evidence of PW1 who was the power of attorney holder of the landlord(the father of landlord's wife Smitha) and that of ## **R.C.R. NO. 113 OF 2011** -:4:- tenant as DW1 apart from the documentary evidence Exts.P1 to P5 and D1 to D5 series, reports and plans submitted by the Advocate Commissioner which were marked as Exts.C1 and C2 respectively. On evaluating the evidence the Rent Control Court would come to the conclusion that out of the various grounds involved only the ground of arrears of rent stood established and an order of eviction was ordered only under that grounds. In the appeal preferred by the landlord the Appellate Authority passed the impugned judgment. As already stated on scrutinizing the pleadings the Appellate Authority would find that it is the ground u/s 11(8) and not the ground u/s 11(3) which applies to the present case. After finding that the need of additional accommodation is bonafide, the Appellate Authority also found that the tenant who is paying a paltry rent of Rs.10/- ## **R.C.R. NO. 113 OF 2011** -:5:- cannot complain of any comparative hardship being sustained by him. Incidentally it was noticed that other buildings are also available in the locality. 4. Heard Smt.Molly Jacob, learned counsel for the revision petitioners and the learned counsel for the appellant/respondent Sri.P.B. Sahasranaman. Even though Smt.Molly Jacob addressed us on the various grounds raised she gave thrust to the following points in her submissions. (1)Admittedly and evidently the landlord does not occupy any portion of the larger building parts of which are the petition schedule building and the building where Smitha is presently conducting the tailoring business. (2)Whether it be under u/s 11(3) or under S.11 - (8) it is the obligation of the landlord to ## **R.C.R. NO. 113 OF 2011** -:6:- establish that the need is a bonafide one. Bonafides is a state of mind and being so the need can be established only by either of the landlord or by the person who is going to occupy the building. In the instant case it is the father-in-law of the landlord who has given evidence. Though the relationship is close he is not competent to speak about the mind of his son-in-law or even his daughter. - (3)Even if the finding that the need for additional accommodation is bonafide is correct, then also there is no proper consideration of the question of relative hardship as envisaged under the proviso to sub-S.10 of S.11 by the learned District Judge. 5. Smt. Molly Jacob requested that in view of the above points the judgment of the Appellate ## **R.C.R. NO. 113 OF 2011** -:7:- Authority be interfered with and the order of the Rent Control Court be restored. Sri.P.B.Sahasranaman, learned counsel for the landlord drew our attention to Ext.P4 lawyer's notice and Ext.P5 reply sent to the same. He submitted that though in the lawyer's notice it is specifically stated that tailoring business is conducted there is no denial in the reply of the specific averment in Ext.P4 that tailoring business is being conducted by Smitha, wife of landlord. Sri.P.B.Sahasranaman submitted that there is no hard and fast rule that the landlord or the prospective occupant should give evidence; what is required is that a competent witness should give evidence. In the instant case PW1 is not an ordinary witness. He is the father of Smitha and PW1 is maintaining the entire building on behalf of the landlord and his wife Smitha in ## **R.C.R. NO. 113 OF 2011** -:8:- the absence of the landlord. PW1 is well competent to give evidence regarding genuineness of the need projected. Sri.P.B.Sahasranaman would support the finding of the learned Appellate Authority in the context of the proviso to sub-s. (10) of S.11. He reminded us of the contours of our jurisdiction u/s 20 and submitted that under the present jurisdiction we may not upset the factual findings entered by the Appellate Authority which under the statutory scheme is the final Court on facts. 6. Smt.Molly Jacob would place strong reliance on the judgment of this court in **2010 (4) KLT 888 (Abdulla Haji v. Krishnan)** which is authored by one among us, i.e. Pius C. Kuriakose (J), to support her argument that, in order that claim under sub-s.(8) of S.11 is successfully made out the landlord should be in occupation of a ## **R.C.R. NO. 113 OF 2011** ## -:9:- part of the larger building. 7. We have very anxiously considered the submissions addressed at the bar. It is true the learned Rent Control Appellate Authority has taken the view that on the facts which obtained in the present case it is the sub-s.(8) of S.11 is applicable and not sub-s.(3) of S.11. In our view the above view of the learned District Judge is erroneous. Sub-s.(8) of S.11 reads as follows. “A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.” ## **R.C.R. NO. 113 OF 2011** -:10:- Interpreting Sub-s.(8) of S.11 this court has held in **Abdulla Haji v. Krishnan** that what is required for a claim under Sub-s.(8) of S.11 is actual occupation by the landlord of a part of the building and occupation by son or any family member of the landlord will not be sufficient. We are sure that it was without noticing the judgment in **Abdulla Haji v. Krishnan** the learned Appellate Authority took his view regarding the maintainability of the petition under Sub-s.(8) of S.11. A reading of the judgment of the Appellate Authority shows that the Appellate Authority has proceeded on the basis that the tailoring business itself belongs to the landlord and his wife Smitha jointly. We have scanned the pleadings. It is not pleaded even casually, that the tailoring business belongs to the husband and wife jointly. What is pleaded is that the tailoring business belongs to ## **R.C.R. NO. 113 OF 2011** -:11:- landlord's wife only. We feel that even if there is genuine need for Smitha to occupy the petition schedule building for the purpose of extending the business already being conducted by her in the ground floor or for the purpose of starting some like business the ground which may be available to her is Sub-s.(8) of S.11 and not Sub-s.(3) of S.11. We are unable to consider the present RCP as it is one under sub-s.(3) of S.11 because we do not find any specific pleadings in that regard. Specific pleadings will be required from the landlord's side that the landlord's wife Smitha is depending on him for the purpose of accommodation. Thus we hold that the petition for eviction to the extent it pertains to sub-s.(8) of S.11 is not maintainable. 8. Though it may not be necessary, we feel that we should express our view regarding the ## **R.C.R. NO. 113 OF 2011** -:12:- necessity to examine either the landlord or the prospective occupant of the building. Mr.P.B.Sahasranaman was right in his saying what is required is examination by a competent witness. We feel that on the facts and circumstances which are available in this case, in order to establish that there is a genuine need for the landlord/petitioner and his wife the petitioner's wife to do business in the petition schedule building it is necessary that either the petitioner/landlord or Smt.Smitha, the present occupant, gives evidence. 9. As regards the argument that consideration of the eligibility for the benefit of the proviso to sub-S.10 of S.11 for the tenant is not satisfactory, we say that there is much force in the argument raised by Smt.Molly Jacob in this context. Unlike the 2[nd] proviso to sub-section(3) ## **R.C.R. NO. 113 OF 2011** -:13:- of S.11 there is burden on both the landlord and the tenant. In the context of the 1[st] proviso to Sub-sec.10 of S.11 landlord has the burden to show what are the advantages he will get by the order of eviction and the tenant has the burden to show as to what are the hardships he will sustain by the order of eviction. In this particular case in view of our finding that the ground which may be available is not the ground under Sub-s.(8) of S.11, the benefit which may be available is the benefit of the 2[nd] proviso to Sub-s.(3) of S.11. The tenant cannot be blamed for not having specifically claimed protection of the 2[nd] proviso as there was no specific claim by the landlord under Sub-s.(3) of S.11. 10. The learned Appellate Authority was certainly right in its view that the monthly rent which is being paid by the tenant is ridiculously ## **R.C.R. NO. 113 OF 2011** ## -:14:- low. Noticing that aspect of the matter we have already refixed the rent at Rs.750/- per month subject to right of either party to get fair rent fixed u/s 5 of Act 2 of 1965. We reiterate the above direction. 11. The result of the above discussions is as follows. The order of the Rent Control Court and the judgment of the Appellate Authority are set aside. The RCP is remanded to the Rent Control Court. That Court is directed to permit the landlord to amend his pleadings suitably. If the landlord amends the pleadings the tenant will be permitted to raise counter pleadings. The Court is directed to complete the pleadings and to conduct further enquiry and to take a fresh decision in the RCP early, at any rate within the statutory time frame. Parties will enter appearance before the ## **R.C.R. NO. 113 OF 2011** ## -:15:- Rent Control Court on 30[th] June, 2011. Transmit the records forthwith to the Rent Control Court. The rent payable by the tenant is refixed at the rate of Rs.750/- per month as already ordered from 1-4-2011 subject to regular fixation of fair rent at the instance of either party. ## **Sd/- PIUS C. KURIAKOSE,** **JUDGE.** **Sd/- N.K. BALAKRISHNAN, JUDGE.** ul/- [ True copy ] _P.S. to Judge._ _._