P. K. Hashim v. P. Dinesh

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 24TH DAY OF NOVEMBER 2014/3RD AGRAHAYANA, 1936 ## **RCRev..No. 204 of 2013 (C)** AGAINST THE JUDGMENT IN RCA 47/2011 ON THE FILE OF THE RENT CONTROL APPELLATE AUTYHORITY (1ST ADDL.DISTRICT COURT), KOZHIKODE DATED 11.4.2013 AGAINST THE ORDER IN RCP 63/2009 ON THE FILE OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KOZHIKODE-I DATED 31-01-2013 REVISION PETITIONER: RESPONDENT: PETITIONER: -------------------------------------------- P.K. HASHIM, S/O.MOIDU HAJI, RESIDING AT 19/1112, NELLIKOTTU, CHALAPPURAM P.O., KOZHIKODE - 673 002. BY ADVS. SRI.P.B.KRISHNAN SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAUF PALLIPATH RESPONDENT: APPELLANT: RESPONDENT: ---------------------------- P. DINESH, S/O.SEKHARAN, AGED 49 YEARS, 3/1277, WHEELS TWO WHEELER SERVICES, GANDHI ROAD, KACHERI AMSOM, DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN BY ADV. SRI.PUSHPARAJAN KODOTH BY ADV. SRI.K.JAYESH MOHANKUMAR BY ADV. SMT.VANDANA MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24.11.2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & P.D.RAJAN, JJ.** **---------------------------------------------------R.C.R. NO. 204 OF 2013 (C) ---------------------------------------------------Dated this the 24[th] day of November, 2014** ## **O R D E R** ## **K.T.Sankaran, J.** The landlord is the revision petitioner. He challenges the findings of the Rent Control Appellate Authority under the first and second provisos to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') against him and the consequent dismissal of the Rent Control Petition under Section 11(3) of the Act. 2. R.C.P. No.63 of 2009 on the file of the Rent Control Court, Kozhikode was filed by the landlord against the respondent/tenant under Sections 11(2)(b), 11(3), 11(4)(ii) and 11(8) of the Act. The Rent Control Court dismissed the application on the grounds under Sections 11(2)(b), 11(4)(ii) and 11(8) of the Act. The claim for eviction under Section 11(3) was allowed by the Rent Control Court. The Rent Control Court held that the bona fide need put forward by ## **R.C.R. NO. 204 OF 2013 (C)** :: 2 :: the landlord is genuine, that the landlord does not have any other suitable building vacant in his possession so as to attract the first proviso to Section 11(3) of the Act and that the tenant failed to prove the ingredients of the second proviso to Section 11(3) of the Act. 3. Challenging the order of the Rent Control Court, the tenant filed R.C.A.No.47 of 2011 on the file of the Rent Control Appellate Authority, Kozhikode. The Appellate Authority concurred with the view taken by the Rent Control Court that the need put forward by the landlord is genuine. However, the findings of the Rent Control Court under the first and second provisos to Section 11(3) of the Act were reversed by the Appellate Authority. Thus the Appellate Authority reversed the finding of the Rent Control Court under Section 11(3) of the Act and dismissed the Rent Control Petition under Section 11(3) of the Act. Though the landlord filed a Memorandum of Cross Objection before the Appellate Authority challenging those grounds which were rejected by the Rent Control Court, the Appellate Authority dismissed the Memorandum of Cross Objection. ## **R.C.R. NO. 204 OF 2013 (C)** :: 3 :: 4. Shabeer, the son of the landlord, is a Doctor by profession. Shabeer passed DM in Neurology. The need put forward by the landlord is that Shabeer wants the petition schedule building to start a neurology clinic with laboratory, resting room and other facilities. Shabeer wants to annex the two rooms in the possession of the tenant in the present case along with one room in the possession of the tenant in R.C.P.No.187 of 2004 as well as another room lying vacant but which was in the possession of Shabeer. The landlord filed R.C.P.No.187 of 2004 against the other tenant who was in occupation of a room in the upstair portion. Originally, one Rent Control Petition was filed as R.C.P.No.187 of 2004 against Dinesh, the respondent herein, as well as another tenant Jose Thomas (who was in possession of the room in the upstair portion). That Rent Control Petition had a chequered career and finally it was held that the landlord may amend the Rent Control Petition suitably. Accordingly, R.C.P.No.187 of 2004 was retained as against Jose Thomas and R.C.P.No.63 of 2009 was filed against Dinesh, the tenant in the present case. The Rent Control Court considered both the Rent Control Petitions together and a common order was ## **R.C.R. NO. 204 OF 2013 (C)** :: 4 :: passed. The appeals therefrom were also considered by the Appellate Authority as per a common judgment. 5. The respondent/tenant denied the bona fide need put forward by the landlord. However, he did not dispute the fact that Shabeer is a qualified Doctor. The tenant also did not dispute the fact that Shabeer needs a building if he wants to conduct a clinic. The only contention put forward by the tenant was that if Shabeer really wanted to start a clinic, he could do so utilising the other vacant rooms in the possession of the landlord. 6. As stated above, both the authorities below found that the landlord has proved the bona fide need put forward by him that Shabeer intends to start a clinic in the petition schedule building as well as the other rooms situated nearby in the same main building. Thus the only remaining dispute was with respect to the availability of the benefit of the first and second provisos to Section 11(3) of the Act. The Rent Control Court held that the tenant failed to prove that the landlord is in possession of other vacant rooms in the building belonging to him. The Rent Control Court also held that the case put ## **R.C.R. NO. 204 OF 2013 (C)** :: 5 :: forward by the tenant that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule building was not proved. The Rent Control Court further held that the tenant failed to prove the ingredients of the second proviso to Section 11(3) of the Act. 7. The Appellate Authority held that when the tenant stated in evidence that he is running a two wheeler service station in the petition schedule building and that his main income is from the business conducted by him in the petition schedule building, that has to be accepted unless the landlord proves that he has other source of income. To some extent, the Appellate Authority cast the burden of proof in that regard on the landlord. 8. In so far as the second limb of the second proviso is concerned, the Appellate Authority erroneously thought that the burden of proof is on the landlord. It is stated that when the landlord has a case that suitable premises are available in the locality where business of the tenant can be conducted, the landlord should prove the same by taking out a commission or by producing documents. ## **R.C.R. NO. 204 OF 2013 (C)** :: 6 :: The Appellate Authority accused the landlord for not proving this aspect by examining any witness. Here also the Appellate Authority, to some extent, cast the burden of proof on the landlord. 9. It is well settled by a series of decisions of this Court right from **Kochappan Pillai** v. **Chellappan (1976 KLT 1)** that the burden to establish both the ingredients of the second proviso to Section 11 (3) is on the tenant. The tenant has to prove that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule building and that there is no other suitable building available in the locality to accommodate his business. To claim the benefit under the second proviso, the tenant has to prove both these ingredients. The findings of the Appellate Authority on the second proviso are, to a great extent, against the well settled principles of law. The Appellate Authority erroneously cast the burden of proof on many aspects touching upon the second proviso, on the landlord. The findings thus arrived at by the Appellate Authority are erroneous which necessitates interference by the revisional court under Section 20 of the Act. ## **R.C.R. NO. 204 OF 2013 (C)** :: 7 :: 10. It is relevant to note here that Exts.B3 to B8 extracts of the Building Tax Register were produced by the tenant only after the evidence of PW1 and PW2 were recorded. Thus the landlord did not get an opportunity to adduce evidence on that aspect. More over, Exts.B3 to B8 extracts of the Building Tax Register were not put to the landlord and PW2 in their cross examination. Thus, the landlord lost an opportunity to explain the various entries in Exts.B3 to B8. The Appellate Authority erroneously thought that if the landlord wanted to adduce evidence on Exts.B3 to B8, he could have filed an application for recalling PW1 and PW2. Having not done so, it was held that the landlord was not entitled to complain about the late production of Exts.B3 to B8. We are of the view that this reasoning of the Appellate Authority is unsustainable. 11. The Appellate Authority thought that the entries in the extract of the Building Tax Register kept by the local authority is a complete answer to the occupation of the rooms in a building either by the landlord or by the tenant. Simply because the name of the occupier is not mentioned in the entries in the Building Tax Register, it cannot be assumed that the landlord has not let out that building to ## **R.C.R. NO. 204 OF 2013 (C)** :: 8 :: any tenant. Only in the absence of entries regarding the names of the tenants occupying the various rooms mentioned in Exts.B3 to B8, the Appellate Authority concluded that the landlord is having other buildings in his possession and that would be sufficient to attract the first proviso to Section 11(3) of the Act. We are of the view that the finding rendered by the Appellate Authority on the entries in Exts.B3 to B8 is erroneous in law and it is liable to be interfered with in Revision under Section 20 of the Act. 12. The petitioner/landlord has produced photocopies of several documents along with I.A.No.2720 of 2013 in an attempt to show that the buildings pointed out by the tenant as in the occupation of the landlord are really tenanted buildings. We are not inclined to accept these documents as additional evidence, since the originals or certified copies are not produced by the landlord. 13. For the aforesaid reasons, we are of the view that the matter requires a remand. Since the case was originally filed in 2004, we do not think that it would be ideal to remand the case to the Rent Control Court. It would be sufficient if the case is remanded to ## **R.C.R. NO. 204 OF 2013 (C)** :: 9 :: the Appellate Authority. In the peculiar facts and circumstances of the case, both the parties will be entitled to adduce evidence and to produce documents before the Appellate Authority. The parties would be entitled to recall the witnesses already examined and if they so wish, examine any other witness. Any of the parties would be entitled to take out a commission to collect facts required for the purpose of proving or disproving any of the ingredients of the first and second provisos to Section 11(3) of the Act. The Appellate Authority shall dispose of the appeal as expeditiously as possible, after affording a reasonable opportunity of being heard to both parties. 14. Accordingly, the Rent Control Revision is allowed to the extent indicated above and the appeal is remanded to the Appellate Authority for fresh disposal on the matters mentioned above. It is made clear that the finding of the authorities below that the landlord has established the bona fides of the claim under Section 11(3) of the Act is not being interfered with in this Revision. So also, the findings of the Rent Control Court as well as the Appellate Authority under Sections 11(2)(b), 11(4)(ii) and 11(8) are also not interfered ## **R.C.R. NO. 204 OF 2013 (C)** :: 10 :: with in this Revision. In other words, the findings to be arrived at by the Appellate Authority are confined to the first and second provisos to Section 11(3) of the Act. The parties shall appear before the Rent Control Appellate Authority on 15.12.2014. Send back the records. **(K.T.SANKARAN) Judge** **(P.D. RAJAN) Judge** ahz/