NABEESU and FOUSIYA v MEYANA SHEEJA and KARUNNANTAVIDA SEKHARAN

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 11[TH] DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 RCREV. NO. 148 OF 2016 ``` ``` AGAINST THE JUDGMENT DATED 21.10.2015 IN R.C.A.NO.191 OF 2012 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE) VATAKARA ARISING OUT OF THE ORDER DATED 30/06/2012 IN R.C.P.NO.63 OF 2010 OF THE RENT CONTROL COURT (MUNSIFF), VATAKARA. ``` ## **`REVISION PETITIONERS:- (APPELLANTS/PETITIONERS)`** - **`1 EROTH THAZHAKUNIYIL NABEESU, AGED 53 YEARS D/O. ALIKUTTY, ERAMALA AMSOM, ORKKATTERI DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.`** - **`2 EROTH THAZHAKUNIYIL FOUSIYA,AGED 47 YEARS D/O. ALIKUTTY, ERAMALA AMSOM, ORKKATTERI DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.`** ``` BY ADVS.SRI.T.SETHUMADHAVAN (SR.) SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON ``` ## **`RESPONDENTS:- (RESPONDENTS/RESPONDENTS)`** - **`1 MEYANA SHEEJA, AGED 45 YEARS D/O.NANU, AGED 45 YEARS, RESIDING AT OTHAYOTH POYIL, ERAMALA AMSOM, ORKKATTERI DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.`** -2- R.C.R.No. 148 of 2016 - **`2 KARUNNANTAVIDA SEKHARAN`** ``` S/O. KANNAN, CURTAIN CENTER, EP. 16-456 NUMBER SHOP, ORKKATTERI P.O., EDACHERI AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. ``` ``` R1 BY ADVS.SRI.K.B.ARUNKUMAR SRI.RANJIT BABU ``` ``` THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- R.C.R.No. 148 of 2016 ## **ORDER** ## K. Babu, J. This Rent Control Revision arises from the order dated 30.06.2012 passed by the Rent Control Court, Vadakara in R.C.P.No.63 of 2010 and the judgment dated 21.10.2015 passed by the Rent Control Appellate Authority, Vadakara in R.C.A.No.191 of 2012. 2. The challenge in this revision is to the judgment of the Rent Control Appellate Authority disallowing the claim of eviction sought by the revision petitioners-landladies under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as “the Act” for short) holding that the claim is hit by the first proviso to Section 11(3) of the Act. 3. The revision petitioners-landladies instituted the Rent Control Petition seeking eviction of the 1[st] respondent-tenant under Sections 11(3) and 11(4)(i) of the Act. The landladies pleaded that the 1[st] respondent-tenant had sublet the building to the 2[nd] respondent and that the 1[st] respondent is not conducting any business therein. They further contended that -4- R.C.R.No. 148 of 2016 the husband of the 1[st] petitioner, who returned from the Middle East, is depending on her in respect of the petition schedule room as he intends to conduct a grocery shop therein. 4. The 1[st] respondent-tenant resisted the claim of the landladies contending that she is conducting tailoring business in the petition schedule room with the assistance of her fatherin-law. It is also contended that she could not apply for a trade licence for the business from the Panchayat as the petitionerslandladies refused to give a consent letter for that purpose. She denied the allegation regarding subtenancy and pleaded that she depends on the income derived from the business in the petition schedule room for her livelihood. It was also contended that there is no suitable vacant room available in the locality to shift her business. 5. On the side of the landladies PWs.1 to 3 were examined and Exts.A1 to A7 were marked. On the side of the tenant, the 1[st] respondent was examined as RW1 and Exts.B1 to B4 were marked. Exts.C1 and C2 were marked as Court exhibits. -5- R.C.R.No. 148 of 2016 6. The Rent Control Court held that the need projected from the side of the landladies is genuine and bonafide and that the tenant is not entitled to the protection contained in the second proviso to Section 11(3) of the Act. However, the claim of the landladies was disallowed on the ground that it was hit by the first proviso to Section 11(3) of the Act. The Rent Control Court relied on Exts.B1 to B3, the extracts of the Assessment Registers maintained by the local authority in respect of the buildings, namely, 370A, 370E, 370F, 370G, 370H, and 370I to record the finding that the landladies have other buildings in their possession suitable to accommodate their projected need. The Rent Control Court also held that the landladies are not entitled to eviction under Section 11(4) (i) of the Act. 7. The landladies challenged the order of the Rent Control Court dated 30.06.2012 before the Rent Control Appellate Authority in R.C.A.No.191 of 2012. The landladies did not press the appeal challenging the order of dismissal under Section 11(4)(i) of the Act. The Appellate Authority, relying on Exts.B1 to B3, confirmed the finding of the Rent -6- R.C.R.No. 148 of 2016 Control Court that the claim of the landladies is hit by the first proviso to Section 11(3) of the Act. 8. Aggrieved by the judgment of the Appellate Authority, which confirmed the order of the Rent Control Court, the landladies are before this Court in revision invoking Section 20 of the Act. 9. Heard Sri.T.Sethumadhavan, the learned Senior Counsel for the revision petitioners/landladies, and Sri.K.B.Arunkumar, the learned counsel for respondent No.1/ tenant. 10. The finding of the Rent Control Court that the need projected by the landladies is genuine and bonafide has not been challenged before the Rent Control Appellate Authority, and hence, it has become final. 11. The learned Senior Counsel for the landladies, relying on the decision of the Full Bench of this Court in **Panoli Alikutty and Another v. Suresh Babu [2018 (5) KHC 621]** contended that the finding of the Appellate Authority as well as the Rent Control Court that the claim of the landladies is hit by the first proviso to Section 11(3) of the Act cannot be sustained. -7- R.C.R.No. 148 of 2016 12. Both the Rent Control Appellate Authority, as well as the Rent Control Court relied on Exts.B1 to B3 documents to record the finding that the landladies have buildings in their possession suitable for accommodating the need projected in the Rent Control Petition. 13. Exts.B1 to B3 are the extracts of the entries in the Building Tax Assessment Registers in respect of the six buildings referred to above. Relying on Exts.B1 to B3, the Rent Control Appellate Authority held that those buildings are in the vacant possession of the landladies. 14. In **Panoli Alikutty** 's case (supra), the Full Bench held that the provision contained in Section 26 of the Act by which the Executive Authority of a local body or the Revenue Officer of a Corporation shall grant to the applicant a certified extract from the property tax or house tax assessment book of the local body concerned, is only a provision which enables the parties to a proceeding under sub-section (1) of Section 5 of the Act to let in evidence as to the rental value of the buildings as fixed by the local authority for the relevant period to levy property tax or house tax, as the case may be, by -8- R.C.R.No. 148 of 2016 producing certified copies of the extracts from the property tax or house tax assessment books of the local authority. The Full Bench further held that the scheme of the Act does not indicate that the legislature intended the parties to a proceeding for eviction under the Act to prove the vacancy or occupancy of a building by producing certified extracts of the property tax or the building tax assessment books of the local authority. The said certified extracts can at best be a piece of evidence and the occupancy of the building needs to be established by the parties by other corroborative evidence, the Full Bench held. 15. In the present case, apart from producing Exts.B1 to B3, the tenant has not adduced any other corroborative piece of evidence to establish occupancy of other buildings by the landladies. 16. Resultantly, we hold that the finding of the Appellate Authority that the need projected from the side of the landladies is hit by the first proviso to Section 11(3) of the Act cannot be sustained as the said finding was recorded not based on any admissible evidence. We further hold that there had been no effectual adjudication of the question as to -9- R.C.R.No. 148 of 2016 whether the claim of the landladies is hit by the first proviso to Section 11(3) of the Act. 17. The Rent Control Court had found the first limb of the second proviso to Section 11(3) of the Act in favour of the tenant and decided the second limb in favour of the landladies. The tenant has not challenged the finding of the Rent Control Court that he failed to establish that other suitable buildings are not available in the locality to shift the business conducted by him in the petition schedule building. 18. The landladies challenged the finding of the Rent Control Court that the tenant mainly depends upon the income derived from the business conducted by him in the petition schedule room. The Appellate Authority found that the finding of the Rent Control Court that the tenant is mainly depending upon the income derived from the business run in the petition schedule building cannot be sustained in the absence of convincing evidence. 19. In **Poolakandi Kumaran** v. **Kulangara Veetil Mathu [2009(1) KLT 607]** this Court held that the two ingredients of the second proviso are in the conjunctive, and in order that a tenant to get the benefit of the proviso, he will -10- R.C.R.No. 148 of 2016 have to satisfy both the ingredients. In **Francis** v. **Sreedevi Varassiar [2003 (2) KLT 230 (FB)]** , a Full Bench of this Court held that the burden of proving both the criteria of the second proviso lies with the tenant. In **Thanuja Sunderdas** v. **Sisirkumar Raj [2008 (4) KLT 248]** , this Court again considered this aspect and declared that the burden absolutely lies on the tenant to establish the requirements for the protection contained in the second proviso to Section 11(3) of the Act. 20. We have gone through the materials placed before the Court. We find that the tenant miserably failed to establish that she depends upon the income from the business run in the petition schedule room for her livelihood. Therefore, the finding of the Rent Control Appellate Authority that the tenant is not entitled to the protection contained in the second proviso to Section 11(3) of the Act requires no interference. 21. We have already held that the finding of the Appellate Authority as well as the Rent Control Court that the claim of the landladies under Section 11(3) of the Act is hit by the first proviso cannot be sustained. We have also held that there had been no effectual adjudication of the question as to -11- R.C.R.No. 148 of 2016 whether the claim of the landladies is hit by the first proviso to Section 11(3) of the Act. 22. We take note of the fact that ten years have elapsed after the institution of the Rent Control Proceedings. Going by the scheme of the Act, the jurisdiction of the Appellate Authority is co-terminus with that of the Rent Control Court. Sub-section (3) of Section 18 of the Act enables the Appellate Authority to make such other enquiry as it thinks fit, either directly or through the Rent Control Court, in deciding the appeal. As per sub-rule (2) of Rule 16 of the Kerala Buildings (Lease and Rent Control) Rules, 1979, if the Appellate Authority decides to make further enquiry, it may take additional evidence or require such evidence to be taken by the Accommodation Controller or the Rent Control Court, as the case may be. 23. Hence, in view of the long pendency of these proceedings, we deem it appropriate to remit the matter to the Rent Control Appellate Authority to record a finding as to whether the claim of the landladies is hit by the first proviso to Section 11(3) of the Act and to pass a revised judgment. -12- R.C.R.No. 148 of 2016 In the result, 1. The Rent Control Revision is allowed by way of remand. 2. The finding of the Rent Control Court that the need projected by the landladies is genuine and bonafide is confirmed. 3. The finding of the Rent Control Appellate Authority that the tenant is not entitled to the protections contained in the second proviso to Section 11(3) of the Act is also confirmed. 4. The finding of the Appellate Authority and the Rent Control Court that the claim of the landladies is hit by the first proviso to Section 11(3) of the Act is set aside. 5. The judgment dismissing the Rent Control Petition is set aside. 6. The Rent Control Petition is remanded to the Appellate Authority for the limited purpose of recording the finding as to whether the claim of the landladies is hit by the first proviso to Section 11(3) of the Act. 7. It would be open to the parties to adduce evidence before the Appellate Authority on the question involved. The Appellate Authority, after recording its finding on the first proviso to Section 11(3) of the Act, shall pass revised judgment within three -13- R.C.R.No. 148 of 2016 months from the date scheduled for the appearance of the parties. 8. The parties are directed to appear before the Rent Control Appellate Authority on 30.11.2021. 9. Pending interlocutory applications, if any, shall stand closed. **==> picture [37 x 39] intentionally omitted <==** 10. Registry to return the LCR to the Rent Control Appellate Authority, Vadakara, by messenger. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** AV/TKS