Nazar v. Khadeeja (Rent Control Revision)

**RCRev..No.319 & 322 of 2019** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** **RCRev..No.319 OF 2019** **AGAINST THE ORDER IN RCA 67/2015 DATED 30-01-2019 OF ADDITIONAL DISTRICT COURT, TIRUR** **AGAINST THE ORDER IN RCP 22/2014 DATED 30-09-2015 OF MUNSIFF COURT ,PARAPPANANGADI** ## **REVISION PETITIONER/S:** **NAZAR AGED 47 YEARS S/O.PANAKKAL CHERIYA MUHAMMED HAJI, VENGARA AMSOM DESOM, P.O.KANNADIPADI, TIRURANGADI TALUK.** **BY ADVS. SRI.P.S.ABDUL KAREEM SRI.R.ABDUL AHAD SHRI.RAMSHAD K.C.** ## **RESPONDENT/RESPONDENT/PETITIONER:** **KHADEEJA, AGED 56 YEARS D/O.PARANGODATH KOYAMU, W/O.POOKUTH ABOOBACKER, CHERUR AMSOM DESOM, P.O.CHERUR, TIRURANGADI TALUK-676306.** **R1 BY ADV. SRI.K.P.SUDHEER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.01.2020, ALONG WITH RCRev.322/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.319 & 322 of 2019** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** **RCRev..No.322 OF 2019** **AGAINST THE JUDGMENT IN RCA 68/2015 DATED 30-01-2019 OF ADDITIONAL DISTRICT COURT, TIRUR** **AGAINST THE ORDER IN RCP 21/2014 DATED 30-09-2015 OF MUNSIFF COURT ,PARAPPANANGADI** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **NAZAR AGED 47 YEARS S/O.PANAKKAL CHERIYA MUHAMMED HAJI,VENGARA AMSOM DESOM, P.O.KANNADIPADI,TIRURANGADI TALUK.** **BY ADVS. SRI.P.S.ABDUL KAREEM SRI.R.ABDUL AHAD SHRI.RAMSHAD K.C.** ## **RESPONDENT/RESPONDENT/PETITIONER:** **KHADEEJA AGED 56 YEARS D/O.PARANGODATH KOYAMU,W/O.POOKUTH ABOOBACKER,CHERUR AMSOM DESOM,P.O.CHERUR,TIRURANGADI TALUK-676306.** **R1 BY ADV. SRI.K.P.SUDHEER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.01.2020, ALONG WITH RCRev.319/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.319 & 322 of 2019** **3** ## **COMMON ORDER** ## **Dias,J.** **The revision petitioner is the appellant in RCA Nos.67/2015 and 68/2015 on the file of the Rent Control Appellate Authority(in short “Appellate Authority”), Tirur. The respondent in these revision petitions was the respondent in the above appeals.** **2. These revision petitions are filed challenging the common judgment dated 30.1.2019 passed by the Appellate Authority confirming the common order dated 30.9.2015 in RCP Nos.21/2014 and 22/2014 of the Rent Control Court,** **Parappanangadi. The parties are for the** **sake of convenience, referred to, as per** **RCRev..No.319 & 322 of 2019** **4** **their litigate status in these revision petitions as 'revision petitioner' and 'respondent'.** **3. The respondent had filed Rent Control Petition (in short RCP) RCP No.22/2014 against the revision** **petitioner seeking an order of eviction of the petition schedule rooms (for brevity hereinafter referred to as 'shop rooms') under Sections 11(2)and 11(3) of the Kerala Buildings (Lease and Rent Control), Act (hereinafter referred to as 'Act'). Similarly, the respondent had also filed RCP No.21/2014 against the revision petitioner under Section 5(1) of the Act seeking fixation of fair rent.** **4. It was the case of the respondent in RCP 22/2014 that the shop rooms were given on rent to the revision petitioner** **RCRev..No.319 & 322 of 2019** **5** **in 1993. The rent was subsequently enhanced to Rs.1400/- per month. The revision petitioner is running an electrical shop in the shop rooms. The respondent's husband returned from abroad, after cancelling his VISA, therefore, he requires the shop room to start a business in furniture, stationery and electrical goods. The respondent and her husband had sufficient financial capacity to start the proposed business. Even though the respondent demanded vacant possession of the rooms, the revision petitioner refused to vacate the shop rooms. Finally on 4.4.2014, the respondent issued a lawyer notice demanding the revision petitioner to give vacant possession of the shop rooms. Though the notice was served on the** **RCRev..No.319 & 322 of 2019** **6** **revision petitioner, he did not sent a reply. There were other shop rooms in the locality, and that the revision petitioner was not depending on the income from the business being run in the shop room. Hence the respondent sought for vacant possession of the shop rooms. 5. The RCP was resisted by the revision petitioner who filed a counter statement, inter alia, contending that the pleadings in the RCP were vague. The revision petitioner had obtained possession of the shop rooms from the predecessor in interest of the respondent. The shop rooms are not suitable for conducting business in sale of furniture, stationery and electrical items, as alleged by the respondent. The respondent and her husband had other** **RCRev..No.319 & 322 of 2019** **7** **other vacant building in the Vengara Town suitable for their proposed business. There is no sufficient pleadings in the petition warranting an order of eviction under Section 11 (3) of the Act. Likewise, the respondent's husband is a big landlord and he does** **not need to start any business in the shop rooms. Therefore, the RCP has to be dismissed.** **6. The respondent also filed RCP 21/2014 before the Rent Control Court under Section 5(1) of the Act, inter alia, contending as follows:- The shop rooms were given on rent to the revision petitioner in December, 1993. The rent which was fixed at Rs.1400/- was grossly inadequate. The market rent of the shop rooms was Rs.25,000/-. The** **RCRev..No.319 & 322 of 2019** **8** **revision petitioner was getting huge profit from his business, and that he can afford to pay rent at the rate of Rs.25,000/- per month. Even though the lawyer notice was served on the revision petitioner, he did not agree for enhancement of rent. So therefore, till the shop rooms are vacated, the revision petitioner is liable to pay rent at the rate of Rs.25,000/per month.** **Therefore, the respondent sought to fix the fair rent at the rate of Rs.25,000/per month.** **7. The said RCP was also resisted by the revision petitioner, who filed a counter statement, denying the** **allegations in the RCP. According to** **him, the monthly rent is only Rs.1200/and not Rs.1400/-, as alleged. Even** **RCRev..No.319 & 322 of 2019** **9** **though there are two shop rooms, they are very small and have no road access.** **The interior work for the shop rooms were done by the revision petitioner and his siblings after spending Rs.1 lakh. The demand for enhancement of rent at the rate of Rs.25,000/- was extortionate. According to the revision petitioner, even the rent of Rs.1200/- was excessive. Hence he prayed that the RCP be dismissed.** **8. The respondent was examined as PW1 and Exts.A1 to A3 were marked through her. The revision petitioner was examined as RW1. The reports prepared by the Advocate Commissioner with sketches were marked as Exts.C1 to C2(a).** **9. The Rent Control Court** **consolidated the RCPs and jointly tried** **RCRev..No.319 & 322 of 2019** **10** **the same. The Rent Control Court by its common order allowed both the RCPs. The Rent Control Court allowed RCP 21/2014 by fixing the fair rent at the rate of Rs.11,880/- per month, from 4.6.2014, with quinquennial interest at the rate of 15%. Similarly, RCP 22/2014 was allowed directing the revision petitioner to give vacant possession of the shop rooms within a month from the date of order.** **10. Aggrieved by the impugned common order passed by the Rent Control Court, the revision petitioner filed RCA Nos.67/2015 and 68/2015 before the Appellate Authority. The Appellate Authority also consolidated the hearing of the appeals and by the common impugned judgment dismissed RCA No.67/2015 confirming the order in RCP 22/2014.** **RCRev..No.319 & 322 of 2019** **11** **However, the Appellate Authority partly allowed RCA 68/2015 by modifying the fair rent fixed by the Rent Control Court from Rs.11880/- to Rs.9800/- per month, from the date of filing of the petition, with annual increase at the rate of 10%.** **11. It is challenging the common judgment passed by the Appellate Authority in the above appeals that these rent control revision petitioners are filed.** **12. Heard Sri.Abdul Kareem P.S, the learned counsel for the revision petitioner.** **13. 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 rooms under Sections 11(2) and** **RCRev..No.319 & 322 of 2019** **12** **11(3) of the Act. According to him, the courts below have not appreciated the pleadings or evidence on record in its proper perspective. Similarly, the fair rent fixed by the Rent Control Court as well as the Appellate Authority is unreasonable and excessive.** **14. The learned counsel for the petitioner argued that both the courts below have not applied their minds while fixing the fair rent. According to learned counsel, the courts below have not considered the commission report as well as the market rent in the locality. He also argued that the courts below have not considered the revision petitioner's plea for the benefit under the provisos to Section 11(3) of the Act. He, therefore, prayed that the rent control** **RCRev..No.319 & 322 of 2019** **13** **revisions be allowed and the impugned common judgments and common orders be set aside.** **15. The question that emerges for consideration in these revision petitions is whether there is any illegality, or irregularity or perversity in the common judgment and order passed by the courts below concurrently allowing the respondent's prayer for eviction under Sections 11(2) and 11(3) of the Act and fixing the fair rent of the shop rooms.** **16. We have meticulously gone through the pleadings, the oral evidence of PW1 and RW1 as well as the exhibits that are on record.** **17. The Rent Control Court had fixed the rent at Rs.11,880/- in the common order. Subsequently, on re-appreciation** **RCRev..No.319 & 322 of 2019** **14** **of the pleadings and evidence on record, the Appellate Authority modified the amount to Rs.9800/- per month. The Appellate Authority fixed the rent on the basis of the consumer price index, monetary inflation,the bank lending rates and the interest fixed for fixed deposits. It is after considering the changes in the economy that the Rent Control Court felt that the rent should only be annually increased at 10%. The formula that was evolved by the Appellate Authority was that the rent of the shop room was fixed at Rs.1200/- for 22 years. Therefore, by enhancing the rent at the rate of 10% per year for 22 years, the Appellate Authority arrived at the figure of Rs.9800/-. We do not find any irregularity or impropriety in the** **RCRev..No.319 & 322 of 2019** **15** **finding of the Appellate Authority in fixing the fair rent at Rs.9800/-.** **18. This Court in** _**Edger Ferus v. Abraham Ittycheria**_ **[2004 (1) KLT 767] has laid down the principles to be followed by the Rent Control Court while dealing with petitions under Section 5(1) of the Act. After considering the parameters laid down in the said decision, we feel that the fair rent fixed by the Appellate Authority at Rs.9,800/is justifiable. The** **calculation arrived at by the Appellate Authority is completely correct and reasonable. Therefore, RCR No.322/2019** **is only to be dismissed confirming the order passed by the Appellate Authority in RCA No.68/2015.** **19. Coming to RCR 319/2019, the** **RCRev..No.319 & 322 of 2019** **16** **courts below have concurrently found that the respondent was entitled to an order of eviction under Section 11(3) of the Act. The respondent had sought for eviction of the shop rooms for occupation of her husband to start a business for their livelihood. Even though it was contended by the revision petitioner that the husband of the respondent was employed abroad for more than 26 years, and that there was no necessity for her to seek eviction of the revision petitioner from the shop rooms, the evidence of PW1(respondent) is explicit, which leads to the irresistible conclusion that she bona fide requires the shop rooms for her husband to start the business.** **20. On appreciating the oral** **RCRev..No.319 & 322 of 2019** **17** **testimonies of PW1 and RW1, we find that the revision petitioner has not denied the fact that the shop rooms are suitable to start furniture business as sought for by the respondent. Similarly, the revision petitioner has not denied in his cross-examination on the bona fide need of the petitioner for the shop rooms to start the business of her husband. The courts below have rightly appreciated the pleadings and evidence and come to the legitimate conclusion that the respondent requires the shop rooms for her bona fide need.** **21. Coming to the first proviso to Section 11(3) of the Act, the revision petitioner has not proved by any cogent** **evidence that the respondent has a similar shop room in her possession in** **RCRev..No.319 & 322 of 2019** **18** **the same town for her business purposes. It is seen that the shop rooms are situated in the heart of Vengara town and there are many other vacant buildings in the immediate vicinity as evidenced by Exts.C1 and C2 report of the Advocate Commissioner. The Advocate Commissioner in his report has stated that there are other vacant buildings in the locality. Therefore, the revision petitioner is not entitled to the benefit of the first proviso to Section 11 (3) of the Act.** **22. Coming to whether the revision petitioner is entitled to the benefit of the second proviso to Section 11(3) of the Act, it is seen that the revision petitioner has admitted in his crossexamination that he has a building in Vengara Town which has been given on** **RCRev..No.319 & 322 of 2019** **19** **lease by him to his brother to do furniture business. Therefore, it is proved that the revision petitioner has other source of income for his livelihood. Hence the revision petitioner is not entitled for protection under the second proviso to Section 11(3) of the Act.** **23. In the totality of the facts and circumstances of the cases, the pleadings and evidence on record, we have no doubt in our mind that the courts below have rightly granted an order of eviction in favour of the respondent under Section 11(3) of the Act. Thus, we confirm the concurrent findings of the Rent Control Court in RCP 22/2014 and the Appellate Authority in RCA No.67/2015.** **24.The learned counsel for the** **RCRev..No.319 & 322 of 2019** **20** **revision petitioner then prayed for one year's time to vacate the shop rooms.** **22. Having regard to the fact that the RCPs were filed in the year 2014 and the rent control appeals were filed in the year 2015, we feel that six months time would be sufficient for the revision petitioner to vacate the shop rooms on the allowing conditions.** **(1) The revision petitioner 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 building within six months from today.** **(2) The revision petitioner shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before** **RCRev..No.319 & 322 of 2019** **21** **the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default.** **(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the building will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order.** **In the result, these revision petitions are accordingly dismissed.** **Sd/-K.HARILAL, JUDGE ma/23/1/2020 Sd/-C.S.DIAS, JUDGE** **/True copy/** **P.S to Judge**