P. M. Hussain v. Binu G and B. Nirmala Devi (Rent Control Revisions, Kerala High Court)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE EASWARAN S. ``` ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 ``` ``` RCREV. NO. 38 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 04.08.2023 IN RCA NO.17 OF 2022 OF DISTRICT & SESSIONS COURT, ALAPPUZHA ARISING OUT OF THE ORDER DATED 30.09.2022 IN RCP NO.10 OF 2019 OF PRINCIPAL MUNSIFF, ALAPPUZHA ``` ## _`REVISION PETITIONER(S)/RESPONDENT/RESPONDENT:`_ ``` P.M HUSSAIN ``` ``` AGED 56 YEARS S/O.P.POOKUTTY, SNEHARPPANAM VILLAS, ZACHARIA BAZAR, ALAPPUZHA WEST VILLEGE, ALAPPUZHA DISTRICT, PIN – 688012 ``` ``` BY ADVS. T.JAYAKRISHNAN R.KRISHNAKUMAR (CHERTHALA) ``` ## _`RESPONDENT(S)/APPELLANT/PETITIONER:`_ ``` 1BINU.G AGED 54 YEARS S/O.GOPALAKRISHNAN NAIR, 1186, BIJI NIVAS, PALACE WARD, IRON BRIDGE P.O, ALAPPUZHA DISTRICT, PIN – 688011 ``` ``` 2B.NIRMALA DEVI AGED 71 YEARS W/O.GOPALAKRISHNAN NAIR, 1186, BIJI NIVAS, PALACE WARD, IRON BRIDGE P.O, ALAPPUZHA, PIN – 688011 ``` ``` BY ADVS. SADCHITH P KURUP C.P.ANIL RAJ(K/872/2007) SIVA SURESH(K/2688/2022) RESHMA RAJ(K/1150/2021) B.SREEDEVI(K/169/2024) ATHIRA VIJAYAN(K/199/2024) ``` ``` RCREV. NO. 38 OF 2024-2- ``` ``` THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12.06.2024, ALONG WITH RCRev..104/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RCREV. NO. 38 OF 2024-3- ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE EASWARAN S. ``` ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 ``` ``` RCREV. NO. 104 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 04.08.2023 IN RCA NO.17 OF 2022 OF DISTRICT & SESSIONS COURT, ALAPPUZHA ARISING OUT OF THE ORDER DATED IN RCP NO.10 OF 2019 OF PRINCIPAL MUNSIFF, ALAPPUZHA ``` ## _`REVISION PETITIONER(S)/REV.PETITIONER:`_ ``` 1BINU G AGED 53 YEARS, S/O. GOPALAKRISHNAN NAIR, 1186, BIJI NIVAS, PALACE WARD IRON BRIDGE PO, ALAPPUZHA, PIN – 688011 ``` ``` 2B. NIRMALA DEVI, AGED 72 YEARS, W/O. GOPALAKRISHNAN NAIR, 1186, BIJI NIVAS, PALACE WARD IRON BRIDGE PO, ALAPPUZHA, PIN – 688011 ``` ``` BY ADVS. SADCHITH.P.KURUP C.P.ANIL RAJ SIVA SURESH B.SREEDEVI ATHIRA VIJAYAN ``` ## _`RESPONDENT(S)/ RES PONDENT:`_ ``` P.M. HUSSAIN, S/O. P. POOKUTTY SNEHARPPANAM VILLA ZACHARIYA BAZAR ALAPPUZHA WEST VILLAGE ALAPPUZHA, PIN - 688012 ``` ``` THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12.06.2024, ALONG WITH RCRev..38/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RCREV. NO. 38 OF 2024-4- ``` ## _`JUDGMENT`_ ``` [RCRev. Nos.38/2024, 104/2024] ``` ## **AMIT RAWAL, J.** 1. This order of ours shall dispose of two Rent Control Revisions, R.C. Rev.No.38 of 2024 preferred by the tenant aggrieved by the decision of the appellate authority dated 04.08.2023 in RCA No.17 of 2022 and Rent Control Revision No.104 of 2024 filed by the landlords against the same judgment, aggrieved of the non determination of the arrears of rent. 2. Succinctly, the facts in brief are, the Landlord instituted rent petition bearing No.10 of 2019 claiming arrears of rent and eviction on the ground of personal necessity. The aforementioned rent petition was filed on 25.03.2019. Preceding institution of the rent petition, a legal notice dated 07.11.2018 was sent calling upon the tenant to vacate the premises i.e., the petition schedule shop room bearing door no. AMCW No. 26/205. It was stated that the premises was required bonafidely for ``` RCREV. NO. 38 OF 2024-5- ``` carrying on their own business. 3. Tenant objected the aforementioned pleas and stated that the landlords had not come to the Court with clean hands and had suppressed various facts as had been in possession of various vacant rooms and no reasoning had been assigned for non occupation of those rooms. Details of some shop numbers were also given. 4. Landlord in support of the evidence, examined himself as PW1 and brought on record the following documents: ## “Exhibits for the Petitioner: A1 1-8-2017 Rental agreement A2 7-11-2018 Copy of Lawyer’s Notice A3 7-11-2018 Postal receipt A4 – Acknowledgment card A5 24-11-2018 Reply notice Witness for the Petitioner: PW1 4-2-2020 Binu.G” 5. On the other hand, the tenant examined CPW1 to CPW4 and brought on record B1 to B6. Court Exhibits ``` RCREV. NO. 38 OF 2024-6- ``` C1 and C1(a) other exhibits X1, X1(a) and X2 to X8(c) are given hereunder: ## “Exhibits for the Cr.Petitioner: B1 4-11-2013 Copy of Rental agreement B2 1-10-2015 Copy of Rental agreement B3 27-9-2018 Copy of Rental agreement B4 27-10-2018 Postal receipt B4(a) 27-10-2018 Postal receipt B5 24-11-2018 Reply notice B6 17-2-2017 Certified copy of judgment in OS 184/2013 of Hon’ble Sub Court, Alappuzha. ## Witness for the Cr.Petitioner: |CPW1|24-2-2020<br>P.M.Hussain|24-2-2020<br>P.M.Hussain| |---|---|---| |CPW2|27-2-2020<br>A.S.Dasan|| |CPW3|4-3-2020<br>Anil Kumar B.|| |CPW4|23-6-2022<br>Adv.Anoop.S|| |Court|Exhibits<br>:|| |C1|18-5-2022|Commission report submitted by| |||Commissioner Advocate S.Anoop.| |C1(a)|30-4-2022|Mahazar| |Other|Exhibits<br>:|| |X1|-|True copy of relevant page of| |||Assessment register of Alappuzha| |||Municipality.| |X1(a)|-|True copy of relevant page of| |||Assessment register of Alappuzha| |||Municipality.| |X2|26-2-2020|True copy of relevant page of| |||D&O Demand register of| ``` RCREV. NO. 38 OF 2024 ``` ``` -7- ``` |||Alappuzha Municipality for the| |---|---|---| |||year 2019-2020.| |X3|3-3-2020|Authorisation letter| |X4|26-2-2020|True copy of notice| |X5|11-4-2016|True copy of consent letter| |X6|–|True copy of consent letter| |X7|13-2-2019|True copy of consent letter| |X8|-|True copy of relevant page of| |||D&O Demand register of| |||Alappuzha Municipality| |X8(a)||True copy of relevant page of| |||D&O Demand register of| |||Alappuzha Municipality for the| |||year 2019-2020.| |X8(b)||True copy of relevant page of| |||D&O Demand register of| |||Alappuzha Municipality for the| |||year 2019-2020.| |X8(c)||True copy of relevant page of| |||D&O Demand register of| |||Alappuzha Municipality for the| |||year 2019-2020.”| 6. Learned Rent Controller perused the materials on record, particularly X7, the consent letter dated 13.02.2019 issued by the landlord in favor of a different tenant of shop bearing No.26/210 which was rented out after the issuance of the legal notice and prior to the filing of the rent petition, but had intentionally not disclosed this fact. Another document Ext.X8(b) ``` RCREV. NO. 38 OF 2024-8- ``` Register, whereby the Municipality demanded a sum of Rs.25,100/- (Rupees Twenty five thousand one hundred) from the tenant, inducted by way of consent letter dated 13.02.2019, who was carrying on the business of hardware. 7. Considering the proviso to sub section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short,’the Act’), which disables the landlord to seek eviction on the ground of bona fide necessity, Rent Controller dismissed the petition. As far as the arrears of rent are concerned, during the pendency of the rent petition landlord instituted a petition under Section 12 of Act for determination of the rent, which was allowed and the tenant as per the order had paid the rent. Since the landlord was aggrieved of the order in rent petition preferred RCA No.17 of 2019. 8. Lower appellate authority reversed the findings of the Rent Controller and ordered eviction of the tenant. Against the order of eviction of the appellate ``` RCREV. NO. 38 OF 2024-9- ``` authority, tenant preferred RCR.38/2024 whereas landlord filed RCR.104/2024 since the appellate authority did not give reason for non determination of the arrears of rent. 9. Mr.T.Jayakrishnan, learned counsel appearing on behalf of the tenant submitted that the findings of fact and law rendered by the appellate authority are totally perverse and erroneous for the reason that there has not been a single whisper or reference to the consent letter dated 13.02.2019 which proved the malafide intention of the landlord. In case if there was a bona fide need, the vacant room of the premises bearing No.26/210 rented out after issuance of the legal notice and before filing of the rent petition could have been occupied. It appears that the plea of bona fide was applied to seek the ejectment with an aim to obtain a higher market rent by letting out again after the expiry of statutory period. The arrears of rent as determined in pursuance to the submission of the application have already been paid. ``` RCREV. NO. 38 OF 2024-10- ``` Tenant is not averse in clearing the arrears if any, if the details of the arrears are submitted by the landlord. It is settled law that the person who does not come to the court with clean hands can be thrown out at any stage. He submitted that the landlord has not been fair and honest to the Court and in support of the contention, relied upon the judgment of Supreme Court in **S.P.Chengalvaraa Naidu** v. **Jagannath (1994) 1 SCC 1.** 10. On the other hand Mr.Sadchith, learned counsel appearing on behalf of the landlord submitted that the tenant failed to pay the rent of the subsequent months giving cause to the landlord to file an application for arrears of rent. However, the appellate authority did not determine the same and it is in that background revision has been filed. 11. As far as the contention of the tenant with regard to the consent letter is concerned, though to a specific question in the cross examination, it was ``` RCREV. NO. 38 OF 2024-11- ``` clarified that the premises bearing No.26/210 was of a different dimension than 26/205 and therefore the need set up was only for the area of scheduled building/shop in dispute. There was no such pleadings with regard to the vacant shop bearing No.26/210, but with regard to the other shops for which no evidence has been placed on record. Bona fide need has to be determined from the mind set of the landlord and not from the tenant. In other words, tenant cannot dictate the desire of the landlord to be whimsical and fantasy and urged this Court for dismissal of RC Revision No.38 of 2024. 12. We have heard learned counsel for the parties and appraised the paper books. 13. Section 11(3) with proviso of the Act reads as under: “(3)A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. ``` RCREV. NO. 38 OF 2024-12- ``` Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons in any particular case it will be just and proper to do so; Provided further that the Rent Control Court shall not give any direct to a tenant to put the landlord in possession if such tenant is depending for his livelihood mainly on the income derived from any trade, or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business; Provided further that no landlord whose right to recover possession under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year form the date of such transfer; Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own ``` RCREV. NO. 38 OF 2024-13- ``` occupation or for the occupation of any member of his family dependent on him.” 14. No doubt the Rent Controller is empowered to accept the plea of the landlord in case it is reasonable, even if there is availability of the vacant rooms or buildings in the vicinity near the demised premises. In the instant case, no doubt the tenant had taken an objection with regard to the bona fide need of the landlord and also renting out of certain shops. It is settled law that the case is built during the evidence stage, pleadings has to be concise and brief. Tenant was able to bring on record Ext.X7 submitted to the Municipality by summoning the witnesses, which was proved without any objection qua mode of proof. 15. The consent letter is dated 13.02.2019. Legal notice asking the tenants to vacate the premises is dated 07.11.2019, whereas, rent petition has been filed on 25.03.2019. The aforementioned reference of the dates would reveal that the landlord had not been fair and ``` RCREV. NO. 38 OF 2024-14- ``` honest to the Court in disclosing whether the need had been bona fide by giving some lame excuse, that is with regard to the dimension of the tenanted premises and other premises let out before institution of rent petition. Ext.X8(b) is also a testimony whereby, the tenant carrying on the business of hardware, in 2001 was raised a demand of license fee. All these documents have been considered by the Rent Controller but the appellate authority abdicated in not noticing all these facts. 16. Thus, we are of the view that the finding of the appellate authority is totally perverse. Accordingly set aside the same and uphold the order of the Rent Controller. As far as RC Rev No.104 of 2024 is concerned, we give liberty to the landlord to claim the arrears of rent in accordance with law. However, as an interim measure, we call upon the tenant to pay the arrears of rent by deducting the period for which the rent had already been paid as per the order of the Rent Controller during the pendency of the Revision. ``` RCREV. NO. 38 OF 2024-15- ``` RC Rev.No.38 of 2024 is allowed and RC Rev No.104 of 2024 is dismissed. ``` Sd/- ``` ``` AMIT RAWAL JUDGE ``` ``` Sd/- ``` ``` EASWARAN S. ``` ``` JUDGE ``` ``` vv ```