NADUKKANDY RANDUPURAYIL MUHAMMED S/O.SOOPPIKKUTTY and C.ALI, S/O.UMMER v. MANIYARANKI RAHEESA @ RAYEESA W/O.NIZAR and PUTHIYAPURAYIL KUNIYIL MOHAMMED S/O.KADERKUTTY HAJI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 20TH DAY OF AUGUST 2018 / 29TH SRAVANA, 1940** **RCRev..No. 207 of 2018** **AGAINST THE JUDGMENT IN RCA 137/2012 ON THE FILE OF THE COURT OF THE RENT CONTROL APPELLATE AUTHORITY, ADDL. DISTRICT JUDGE-II, THALASSERY DATED 11-04-2018** **AGAINST THE ORDER IN RCP 36/2010 ON THE FILE OF THE COURT OF THE RENT CONTROLLER (MUNSIF), KUTHUPARAMBA DATED 31-01-2012** ## **REVISION PETITIONER/S:** **1 NADUKKANDY RANDUPURAYIL MUHAMMED S/O.SOOPPIKKUTTY, AGED 76, BUSINESS, MANHU STORE, KCP XIII-675, IRITTY, KEEZHUR AMSOM DESOM, POST IRITTY, KANNUR, PIN-670703.** **2 C.ALI, S/O.UMMER, AGED 53, MANHU STORES, KCP XIII-866, NEAR LOVELY MUSEUM, P.O.IRITTY, KEEZHUR AMSOM DESOM, THALASSERY TALUK, KANNUR, PIN-670703.** **BY ADV. SRI.ASHWIN SATHYANATH** ## **RESPONDENT/S:** **1 MANIYARANKI RAHEESA @ RAYEESA W/O.NIZAR, AGED 35, NO OCCUPATION, CHAVASSERY AMSOM, ULIYIL DESOM, P.O.ULIYIL, THALASSERY TALUK, KANNUR DISTRICT, PIN-670702. 2 PUTHIYAPURAYIL KUNIYIL MOHAMMED S/O.KADERKUTTY HAJI, AGED 67, DRIVER, CHAVASSERY AMSOM, ULIYIL DESOM, P.O.ULIYIL, THALASSERY TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND DAUGHTER MANIYARANKI RAHEESA @ RAYEESA, W/O.NIZAR, AGED 35, NO OCCUPATION, CHAVASSERY AMSOM, ULIYIL DESOM, P.O.ULIYIL, THALASSERY TALUK, KANNUR DISTRICT, PIN-670702.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20.08.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 207 of 2018** 2 ## **O R D E R** ## **K.HARILAL,J** **The revision petitioner No.1 is the tenant, against whom the order of eviction has been passed concurrently by the courts below under Section 11(3) and 11(4)(iii) of the Kerala Building (Lease and Rent Control) Act, 1965 (herein after referred to as 'the Act'). The revision petitioner No.2 is the sublessee. The parties are referred to as in the rent control petition.** **2. According to the petitioners, the husband of the first petitioner, Nizar is having no job or any avocation to eke out income for his livelihood and he intends to start a stationary shop in the tenanted premises as he has no buildings of his own in** **RCRev..No. 207 of 2018** 3 **his possession for the said purpose. The petitioners also have no other buildings of their own in their possession to start the proposed business by the dependent. Thus, the petitioners** _**bona fide**_ **need the plaint schedule shop room for the occupation of the husband of the first petitioner. So also, the 1[st] respondent is not depending on the income from the tenanted premises, as he has several other sources of income. Several other buildings are available in the locality to shift the business of the respondents from the tenanted premises. The 1[st] respondent has sublet the plaint schedule shop room to the 2[nd] respondent in violation of the terms of lease for consideration and the 2[nd] respondent is presently conducting business therein, without the consent of the petitioners. Therefore, they are entitled to get an order of eviction** **RCRev..No. 207 of 2018** 4 **under Section 11(4)(iii) of the Act. That apart, the 1[st] respondent has subsequently acquired possession of several other vacant rooms in the same town, which are reasonably sufficient for their requirements. Therefore, they are entitled to get an order of eviction under Section 11(4)(iii) of the Act.** **3. The respondents resisted the claim for eviction under all the aforesaid grounds and contended that the need is not** _**bona fide**_ **and it is a pretext for eviction only. According to them, the 1[st] respondent is mainly depending on the income derived from the business carried on in the plaint schedule shop room, for his livelihood and no other vacant alternative buildings are available in the locality. Therefore, they are entitled to get protection under the second proviso of** **RCRev..No. 207 of 2018** 5 **Section 11(3) of the Act. The 1[st] respondent has denied the allegation that he has sublet the plaint schedule shop room to the 2[nd] respondent. According to the 1[st] respondent, the 2[nd] respondent is the brother-in-law of the 1[st] respondent and he has been assisting the 1[st] respondent for conducting the business and the 2[nd] respondent has no connection with the business other than rendering some assistance to the 1[st] respondent. The 1[st] respondent admitted that he has acquired some buildings, but according to him, there is an arrangement between the 1[st] respondent and two others, who financed him for the construction of that other buildings and by virtue of that agreement, the said persons are in possession of the newly constructed building. In short,** **he has no possession over the newly constructed buildings. Thus, with the** **RCRev..No. 207 of 2018** 6 **aforesaid averments, they prayed for dismissal of the rent control petition.** **4. On the rival pleadings both parties adduced evidence and after considering the evidence on record, the Rent Control Court rejected the claim for eviction under Section 11(4)(i) and allowed the eviction under Section 11(3) and 11(4)(iii)of the Act. In appeal, the Appellate Authority also concurred with the findings, whereby order of eviction had been granted under Section 11(3) and 11(4) (iii) of the Act. Thus, the legality and correctness of the findings, whereby the order of eviction has been passed concurrently under Section 11(3) and 11(4)(iii) of the Act are challenged in this appeal, preferred by the tenants.** ## **5. Heard the learned counsel for the** **RCRev..No. 207 of 2018** 7 **petitioners and the learned counsel for the respondents.** **6. The sum and substance of the arguments advanced by the learned counsel for the respondents/tenants is that the courts below have failed to appreciate the evidence on record under Section 11(3) and 11(4)(iii) of the Act in its correct perspective and the findings are perverse.** **7. Being a revision filed under Section 20 of the Act, we must remind ourselves the scope and extent of interference under the revisional jurisdiction, which is confined to the legality, propriety and regularity of the impugned order only. This Court is not inclined to re-appreciate the entire findings on record, unless the findings of the court below are perverse or vitiated by non-** **RCRev..No. 207 of 2018** 8 **consideration of material facts. Here, the only argument advanced before us is that the findings are perverse. In view of the arguments, the question to be considered is whether the findings of the court below, whereby the order of eviction has been granted under Section 11(3) and 11(4)(iii) of the Act are perverse or not.** **8. In order to prove the** _**bona fide**_ **need, the 1[st] petitioner was examined as PW1 and her husband; the dependant, for whose need, the plaint schedule shop room was required was examined as PW2. It has come out in evidence that he has no job or any other sources of income. After evaluating the oral testimony of PW1 and PW2, the courts below have concurrently found that PW1 and PW2 have testified as to the** _**bona fide**_ **of the need in** **RCRev..No. 207 of 2018** 9 **consonance with the averments in the petition and nothing has been brought out to discredit the** _**bona fide**_ **of the need spoken to by them in their chief examination. We do not find any reason to disbelieve the said findings of the courts below. In the absence of any evidence to take a different view, we do not find any kind of perversity in the appreciation of evidence of** _**bona fide**_ **need.** **9. Coming to the first proviso, the respondents have no case that the petitioners have other buildings of their own in their possession for the occupation of the dependant, for whose need the building is required and no evidence has been produced to show the petitioners' ownership or possession of any other buildings. Therefore, the courts below are justified in finding that the claim** **RCRev..No. 207 of 2018** 10 **for eviction under Section 11(3) and 11(4) (iii) of the Act is not barred by the first proviso to Section 11(3) of the Act.** **10. Coming to second proviso, it is needless to say that, both limbs of second proviso are conjunctive and burden of proof is on the tenant. It has come out in evidence that the 1[st] respondent has another stationary shop also and that he has obtained two licences for these two shops. Thus, it has come out in evidence that he has other sources of income, but no evidence has been adduced to prove the volume of income, which is being derived from the tenanted premises. The absence of evidence is fatal to the claim of protection under the 2[nd] proviso. In** _**Shahul Hameed A. v. P.E.Abdu Razak**_ **[2016 (5) KHC 820] this court held that the tenant, who is hiding** **RCRev..No. 207 of 2018** 11 **his income, is not entitled to get protection under the 1[st] limb of the 2[nd] proviso to Section 11(3) of the Act. Thus, in the absence of evidence, proving the approximate income from the tenanted premises, the courts below are justified in finding that the respondents have not discharged the burden of proof under the first limb of the second proviso.** **11. Coming to the second limb, there is no evidence to prove the non-availability of any other buildings in the same locality. No Commission was taken out to ascertain the nonavailability of similar vacant buildings in the locality. In the absence of evidence to prove, the non-availability of other buildings in the locality, the courts below are justified in finding that the respondents have failed to discharge the burden of proof under** **RCRev..No. 207 of 2018** 12 **the second proviso and thereby, they are not entitled to get protection under the second proviso to Section 11(3) of the Act. We do not find any kind of perversity in the appreciation of evidence under Section 11(3) of the Act.** **12. Coming to the order of eviction under Section 11(4)(iii) of the Act, it has come out in evidence that the 1[st] respondent has constructed a building, having 16 rooms in a three storied building and out of which, 13 rooms are vacant. All the rooms are in ground floor and first floor are lying vacant. In the second floor also rooms are vacant. All the aforesaid facts are stated in Ext.C1 Commission report. The 1[st] respondent has contended that he has advanced only a meager amount for the construction of the aforesaid** **RCRev..No. 207 of 2018** 13 **buildings and he has availed a loan from RW2 for the construction of the building and he entered into an agreement with RW2, whereby, the rooms were entrusted with RW2 for 12 years. But, no reliable evidence has been adduced to substantiate the said contention. Ext.X1 document would prove that though the nomenclature of the document is licence, the transaction under Ext.X1 is a lease and he has obtained Rs.1,25,000/- only from RW2 as per the said document. There is no documentary evidence to prove that the 1[st] respondent has availed a huge amount from RW2 for the construction of the building and the rooms in the buildings were given to RW2 for a long period. The courts below concurrently found that there is no truth in the contention that the 1[st] respondent has no possession over the vacant rooms in the newly constructed** **RCRev..No. 207 of 2018** 14 **building. In the above view, the courts below are justified in granting order of eviction under Section 11(4)(iii) of the Act. We do not find any kind of illegality and impropriety in any of the findings of the court below and there is no perversity in their finding. Hence, the revision petition fails and accordingly dismissed.** **13. However, the learned counsel for the revision petitioners seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the first revision petitioner is given six months' time to vacate the tenanted premises on the following conditions:** **1. The first revision petitioner shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of the copy of this order.** **RCRev..No. 207 of 2018** 15 **2. The first revision petitioner 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.** **3. The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy of this order.** **13. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the** **respondents are entitled to enforce the order.** **Hence the revision petition fails and** **accordingly dismissed.** **Sd/-** **K.HARILAL** **JUDGE** Sd/- **ANNIE JOHN JUDGE** SB