Nishan Rahman v. Vallath Thazhakuni Chandran & Preetha (RCRev.296/2018) & Nishan Rahiman v. Vallath Thazhakuni Chandran & Preetha (RCRev.389/2018)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** ## **RCRev..No. 296 of 2018** **AGAINST THE JUDGMENT DATED 29.06.2018 IN RCA 117/2016 of THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE** **AGAINST THE ORDER DATED 29.02.2016 IN RCP 59/2014 of THE RENT CONTROL COURT, VADAKARA** **REVISION PETITIONER IN R.C.R./APPELLANT IN R.C.A./PETITIONER IN R.C.P.:** **NISHAN RAHMAN, AGED 36 YEARS, D/O. ABDURAHMAN,SWASTHAM,JAZ MANZIL,NADAKKU THAZHA VILLAGE,PUTHOOR DESOM,VATAKARA,KOZHIKODE-673104.** **BY ADVS.SRI.P.B.KRISHNAN** **SMT.B.ANUSREE** **SRI.MANU VYASAN PETER P.B.SUBRAMANIAN P.M.NEELAKANDAN SRI.SABU GEORGE** **- RESPONDENTS IN R.C.R/RESPONDENTS IN R.C.A. RESPONDENTS IN R.C.P:** **1 VALLATH THAZHAKUNI CHANDRAN, AGED 64 YEARS S/O.POKKAN,TAILOR,ROOM NO.18/7,OPPOSITE NEW BUS STAND,NARAYANA NAGARAM,VATAKARA,KOZHIKODE-673101.** **2 PREETHA, AGED 57 YEARS MEEDHA (THAYYIL PARAMBA),NEAR MEETHALEDATH TEMPLE,PERUVATTOM THAZHAM,VATAKARA,KOZHIKODE-673104.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05.12.2018, ALONG WITH RCRev..389/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** **-:2:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** ## **RCRev..No. 389 of 2018** **AGAINST THE JUDGMENT DATED 29.06.2018 IN RCA 117/2016 of THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE** **AGAINST THE ORDER DATED 29.02.2016 IN RCP 59/2014 of THE RENT CONTROL COURT, VADAKARA** ## **REVISION PETITIONERS/RESPONDENTS IN R.C.A./RESPONDENTS IN R.C.P.:** **1 VALLATH THAZHAKUNI CHANDRAN, AGED 64 YEARS, S/O.POKKAN,TAILOR,ROOM NO.18/7,OPP. NEW BUS STAND,NARAYANA NAGARAM,VATAKARA, KOZHIKODE DISTRICT.** **2 PREETHA, AGED 57 YEARS, W/O.CHANDRAN,'MEEDHA'(THAYYIL PARAMBA),NEAR MEETHALEDATH TEMPLE, PERUVATTOM THAZHAM,VATAKARA AMSOM AND DESOM,KOZHIKODE DISTRICT.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/APPELLANT IN R.C.A/PETITIONER IN R.C.P.:** **NISHAN RAHIMAN D/O.ABDURAHIMAN,JAZ MAHAL,NADAKKU THAZHA VILLAGE,PUTHOOR DESOM, VATAKARA TALUK,KOZHIKODE-673** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05.12.2018, ALONG WITH RCRev..296/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** **-:3:-** ## **O R D E R** **[ RCRev. 296/2018 ,RCRev..389/2018 ]** ## **K.HARILAL,J** **Since these revision petitions are directed against the judgment passed by the Rent Control Appellate Authority, Kozhikode in R.C.A. No.117 of 2016, both revision petitions are heard together and disposed of accordingly.** **2. R.C.R. No.296 of 2018 is filed by the landlady and R.C.R. No.389 of 2018 is filed by the tenants. The parties are referred to as landlady and tenant respectively.** **3. The landlady filed R.C.P. No.59 of 2014 against two tenants, who are husband and wife under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965** _**(hereinafter referred to as 'the Act')**_ **, seeking an order of eviction. According to the** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:4:-** **landlady, she** _**bona fide**_ **needs the petition schedule shop room for starting a medical lab. She is a B.Sc. Microbiology graduate, having no employment or any sources of income. She is married and she wants to start the said medical lab for her livelihood. She has no other buildings of her own in her possession to start the said medical lab. But, several other vacant rooms are available in the locality, to shift the business of the tenants from the tenanted premises. So also, the tenants are not depending upon the income from the business in the tenanted premises. As regards Section 11(4)(iii) of the Act, it is averred that the tenants have in their possession another building in the very same town, and thereby they are liable to be evicted under Section 11(4)(iii) of the Act.** **4. The tenants resisted the claim for eviction under both grounds, contending that the** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:5:-** **need projected in the rent control petition is not** _**bona fide,**_ **and it is a pretext for eviction only. According to the tenants, the landlady has a vacant room in her possession and ownership, and if required, she can make use of that room, for starting the said medical lab. According to them, they are depending upon the income from tailoring business, which is being carried on in the tenanted premises and no other vacant buildings are available in the locality, to shift their business. They admitted that the 2[nd] respondent in the Rent Control Petition has purchased a shop room near new bus stand Vatakara for the purpose of a laundry business. However, the Municipality has informed that the construction is unathorised and so trade licence cannot be obtained. Therefore, the shop room acquired by the 2[nd] respondent is unfit for starting any business. Thus, they have put** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:6:-** **forward special reason for not occupying the subsequently acquired building for shifting their business. Thus, they have prayed for dismissal of the rent control petition.** **5. On the aforesaid rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court dismissed the petition under both grounds. Feeling aggrieved, the landlady filed R.C.A. No.117 of 2016 before the Rent Control Appellate Authority, Kozhikode and the Appellate Authority after re-appreciating the evidence on record, concurred with the rejection of the claim for eviction under Section 11(3) of the Act and remitted the case to the Rent Control Court, for considering the claim for eviction under Section 11(4)(iii) of the Act afresh, after giving an opportunity to adduce further evidence, to both parties, under Section 11(4)(iii) of the Act.** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** **-:7:-** **Thus, the concurrent findings rejecting the claim for eviction under Section 11(3) of the Act, have come up in revision in R.C.R. No.296 of 2018 and divergent findings rejecting the claim under Section 11(4)(iii) of the Act and remitting the case back to the Rent Control Court for fresh consideration, under Section 11(4)(iii) of the Act, have come up in revision in R.C.R. No.389 of 2018.** **6. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents.** **7. The sum and substance of the argument advanced by the learned counsel for the revision petitioner in R.C.R. No.296 of 2018 is that, as regards the lack of evidence under Section 11(4) (iii) of the Act, an opportunity to adduce evidence was given to the tenants, by remitting the case back to the Rent Control Court. But, in** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:8:-** **the case of Section 11(4)(iii) of the Act, no such opportunity was given to the landlady for adducing further evidence under Section 11(3) of the Act. According to the learned counsel, the Rent Control Appellate Authority found that the evidence adduced by the landlady under the first proviso to Section 11(3) of the Act, was not sufficient to arrive at a finding that the tenants, Shameem and his brother were already in possession of the other building and they were conducting textile business there, even before the starting of medical shop under Ext.X1(a) consent letter, and there was no occasion to create a fresh tenancy, after the institution of the rent control petition. Therefore, the Rent Control Appellate Authority ought to have remitted the case back to the Rent Control Court, so as to give an opportunity to the landlady to substantiate the contention that Shameem and his** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:9:-** **brother, the tenants in the other building were in possession of that building, before the issuance of Ext.X1(a) consent letter, for starting medical shop to them.** **8. Per contra, the learned counsel for the revision petitioners in R.C.R. no.389 of 2018 canvassed the point that no purpose would be served by remitting the case back to the Rent Control Court, for determining the claim for eviction under Section 11(4)(iii) of the Act, as admittedly the alternative building subsequently acquired by the tenants belongs to one of the tenants only. The learned counsel further contends that, where a common tenancy by two tenants were in occupation of a tenanted premises and one of the tenants acquires a building subsequently, subsequent acquisition will not fall under Section 11(4)(iii) of the Act. In order to fortify the said argument, the learned** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:10:-** **counsel for the tenant has cited the decision laid down by this Court in** _**P.C. Aboobacker Haji & Anr. v. Chovvakkaran Keloth Puthiya Maliyemmal & Anr.**_ **[2011(2) KLJ 120].** **9. As regards Section 11(3) of the Act, the courts below concurrently found that the need projected is genuine and** _**bona fide;**_ **but the claim for eviction is found barred by the first proviso to Section 11(3) of the Act. Admittedly, two rooms were gifted to the landlady by her father, and one of such rooms is the petition schedule room. According to the landlady, the other room in the same building is occupied by one Shameem and he is now conducting a medical shop therein. But, the Commissioner has reported that the furniture work was being conducted in that shop room, for starting the medical shop therein, when he inspected that building. In view of the commission report, the courts below have arrived** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:11:-** **at a finding that, at the time of filing the rent control petition, the other room allegedly in occupation of Shameem was lying vacant, because the Commissioner has specifically reported that furniture work for starting a medical shop was going on in the said room, when he inspected the said shop room. Thus, the commission report gave rise to an inference that at the time of filing the rent control petition, the other room was lying vacant. The above view is further fortified by Ext.Xa(1) consent letter given by PW.1 to the Municipal Secretary, stating that the shop No.18/4 owned by her has been let out to Shameem with effect from 01.09.2014 on rent, and she has no objection in granting a licence. The rent control petition was filed on 02.08.2014.** **10. But, the landlady contended that the room now occupied by Shameem was earlier occupied by Shameem and his brother for running a textile** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:12:-** **business and Ext.X1(a) consent letter was given by PW.1, when Shameem started a new business of his own and in fact, it was only a continuation of their earlier possession. There was a change of business only. Thus, according to the landlady, no vacant shop room was available in her possession on the date of filing the rent control petition. So also, she contended that the room under Ext.X1(a) is not suitable for starting a medical lab.** **11. On the aforesaid rival pleas, the courts below arrived a finding that, if the landlady has got a case that the room possessed by Shameem was in the continuous possession of Shameem and his brother prior to Ext.X1(a), certainly, she could have produced or summoned documents proving the earlier tenancy prior to the filing of the rent control petition. Had there been a business earlier in that shop room, necessary documents** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:13:-** **could have been summoned from the Municipality regarding the licence issued to such business. But, no such document was produced by the landlady. We are of the opinion that, when the court below remitted the rent control petition back to the Rent Control Court for considering the claim for eviction under Section 11(4)(iii) of the Act afresh, after providing an opportunity to both parties to adduce further evidence, a similar opportunity should have been given to the landlady also, for adducing further evidence to prove the earlier occupation of Shameem and his brother in the other building situated adjacent to the petition schedule building. In the above view, we are inclined to grant an opportunity to the landlady also, to adduce evidence to prove the occupation of Shameem and his brother in the other room covered under Ext.X1(a), before 01.09.2014.** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:14:-** ## **12. As regards Section 11(4)(iii) of the** **Act, the learned counsel for the revision petitioner in R.C.R. No.389/2018 cited** _**P.C. Aboobacker Haji'**_ **s case(supra). It is true that the tenants have raised such a contention that the subsequently acquired room belongs to one of the tenants only, and in such a circumstance, the said building will not fall under the subsequent acquisition, contemplated under Section 11(4) (iii) of the Act.** **13. Going by the order passed by the Rent Control Court, it is seen that the Rent Control court has arrived at a finding that there is no evidence to believe that the 2[nd] respondent acquired the room out of her own fund for her own personal purpose or benefit and in that circumstances, it can be held that the landlady had succeeded in establishing that the tenants in the petition schedule room has subsequently** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** ## **-:15:-** **acquired possession of a reasonably sufficient room for the requirement in the same town.** **14. We are of the opinion that, neither the Rent Control Court nor the Appellate Authority has meticulously considered the claim for eviction under Section 11(4)(iii) of the Act, in view of the arguments raised by the tenants. Therefore, we are giving an opportunity to both parties, to establish their rival pleas under Section 11(4)(iii) of the Act in the light of** _**P.C. Aboobacker Haji'**_ **s case(supra) also. We have not expressed any view, in the absence of a definite finding either by the Rent Control Appellate Authority or by the Rent Control Court on the claim under Section 11(4)(iii) of the Act, in view of the rival pleas.** **15. In the above view, we remit the rent control petition back to the Rent Control Court for fresh disposal, after affording an** **RCRev..No. 296 of 2018 & RCRev..No. 389 of 2018** **-:16:-** **opportunity to adduce further evidence to both parties under both Sections 11(4)(iii) and 11(3) of the Act. The parties shall appear before the Rent Control Court on 01.02.2019.** **In the above analysis, R.C.R. No.296 of 2018 is allowed and R.C.R. No.389 of 2018 is dismissed. All pending Interlocutory Applications will stand closed.** ## **Sd/-** ## **K.HARILAL** ## **JUDGE** **Sd/-** **ANNIE JOHN JUDGE** DST //True copy// P.A. To Judge