P.A. Sindhu v. Aboobacker Haji

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940** **RCRev..No. 200 of 2018** **AGAINST THE JUDGMENT DATED 08.01.2018 IN RCA 62/2014 of RENT CONTROL APPELLATE AUTHORITY, TIRUR** **AGAINST THE ORDER DATED 28.08.2014 IN RCP 31/2013 of RENT CONTROL COURT, PONNANI** **PETITIONER/APPELLANT/RESPONDENT:-** **---------------------------------** **P.A.SINDHU, W/O. THIYYATH C.T SUNIL KUMAR, ARYIROOR AMSOM, KODATHUR DESOM, PONNANI TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY** **RESPONDENT/RESPONDENT/PETITIONER:----------------------------------** **ABOOBACKER HAJI, S/O. SAIDALIKUTTY, KARUTHEDATH PARAMBIL HOUSE, KALADI AMSOM, KADANCHERI DESOM, PIN 679 582 PONNANI TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.J.R.PREM NAVAZ SRI.P.T.SHEEJISH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DST** ## **K.Harilal & Annie John, JJ.** ==================================== R.C.R.No.200 of 2018(B) ==================================== Dated this the 26[th] day of July, 2018. ## **O R D E R** ## **K.Harilal, J.** - 1.The appellant is the tenant, who is confronting with an order of eviction passed concurrently under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act). The parties are referred to as in the rent control petition. - 2.According to the petitioner, he was working abroad and he has lost his job there and now he has no job or avocation of his own to eke out income for his livelihood. He intends to start a textile and ready-made shop. Therefore, he _bona fide_ needs the petition schedule building. The entire petition schedule building is needed **R.C.R.No. 200 of 2018(B)** ## -:2:- for displaying the textile items and for godown. He has no other suitable building of his own in his possession for the aforesaid proposed business. Whereas several other vacant buildings are available in the locality to shift the business from the tenanted premises. The respondent is not mainly depending on the income from the business carried on in the tenanted premises. 3.The respondent resisted the claim for eviction contending that the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. According to him, the respondent has other vacant rooms of his own in his possession. Therefore, he could have started the aforesaid business in those rooms. He is doing the manufacturing of ready-made garments and sale of the same in the petition ## **R.C.R.No. 200 of 2018(B)** ## -:3:- schedule building. The petitioner is having in his possession 1400 sq.ft. of area on the ground floor. He is also in possession of a big hall on the first floor. If he wants to do business, the same can be done in the above space. He is dependent on the income derived from the business carried on in the tenanted premises and no other buildings are available in the locality. - 4.On the aforesaid rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected in the petition is not _bon fide_ and the claim for eviction under Section 11(3) of the Act is not hit by the first proviso and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. ## **R.C.R.No. 200 of 2018(B)** ## -:4:- - 5.Heard the learned counsel for the petitioner and the learned counsel for the respondent. - 6.Though this revision petition has been filed on various grounds, learned counsel for the petitioner mainly canvassed the point that the courts below have concurrently failed to evaluate the evidence available on record, as regards the availability of other vacant rooms, in the possession of the petitioner. - 7.According to the learned counsel for the petitioner, the findings concurrently rendered by the courts below under the first proviso to Section 11(3) of the Act, are perverse and unfounded. The courts below have lost sight of the availability of suitable vacant rooms in the possession of the petitioner, disclosed by the evidence on record. The learned counsel pointed out the deposition of PW.1 and Exts.C1 ## **R.C.R.No. 200 of 2018(B)** ## -:5:- and C2 Commission report to substantiate his contention. - 8.In view of the arguments at the Bar, the sole question that arises for consideration is, whether there is any illegality or impropriety in the findings of the courts below that the claim for eviction under Section 11(3) of the Act is not negatived by the first proviso to Section 11(3) of the Act? It is not disputed that the petition schedule building is a three storied building and the ground floor is situated below the road level. The first floor is facing towards the western road by name Calicut-Thrissur road. The Commissioner has reported that the room in the first floor is facing towards the western road and that room is the petition schedule shop room and there is no other vacant room in the first floor, facing ## **R.C.R.No. 200 of 2018(B)** ## -:6:- towards the western road. It is the case of the petitioner that no other suitable rooms are available in his possession to start the textile and ready-made garments business. - 9.On the other hand, the learned counsel for the respondent contends that in his counterstatement, it was stated that there is a big hall also in the possession of the petitioner, which is fit for doing his business and about 1400 sq.ft. of area is available in the ground floor also. If the petitioner is having any _bona fide_ need to do the business, he can conduct the business in any of the aforesaid rooms. - 10.The aforesaid pleadings give rise to an admission from the part of the respondent himself that, there is no available vacant rooms in the first floor, facing towards the **R.C.R.No. 200 of 2018(B)** ## -:7:- western road. Had there been any such vacant room facing the western road, certainly, the respondent could have pointed out the same in the counter-statement. According to him, in the first floor, the only available vacant room in the possession of the petitioner is a hall only and that hall is not one facing towards western road. 11. In the counter-statement, the only available vacant room pointed out in the first floor is a hall. In Ext.C3 commission report, the Commissioner has reported that there is a hall behind the petition schedule shop room and entrance to that hall is through the petition schedule shop room. The aforesaid hall is shown as Ext.C4 in the sketch produced along with the report. Further, the Commissioner has reported that at the time when he inspected the -:8:- ## **R.C.R.No. 200 of 2018(B)** hall, 10 ladies were found engaged in tailoring work in their sewing machine. That apart, he found that the said hall was being used for cooking purpose. He has reported the presence of gas stove, cylinder etc. in that hall. 12. It is needless to say, such a hall situated behind the petition schedule shop room and having no entrance from outside, cannot be treated as a suitable and convenient room for conducting a textile business. That apart, the said hall cannot be treated as a vacant room, as the tailoring work was going on in the said hall, when the Commissioner inspected the said building. - 13.Therefore, the remaining point to be looked into is, whether the rooms in the ground floor or the second floor are vacant and suitable for conducting the proposed business? The ## **R.C.R.No. 200 of 2018(B)** ## -:9:- petitioner himself admitted that he is in vacant possession of the ground floor and the second floor. He wants the petition schedule shop room itself for the sole reason that the petition schedule shop room is the only one shop room, which his facing towards the western road. 14. As regards the ground floor, admittedly, the ground floor is situated beneath the road level and the same is not visible from the road. Indisputably, it follows that the said ground floor is not a suitable shop room for conducting retail business of textile and ready-made garments. 15. Coming to the second floor, the petitioner himself admitted that he is in possession of the rooms in the second floor. It is a matter of common knowledge that the second floor of a **R.C.R.No. 200 of 2018(B)** ## -:10:- building, having no entrance from outside is not suitable or fit for conducting a retail business, like textile and ready-made garments. 16. As regards the burden of proof under the first proviso, in _**Chacko P. Mathew v. Kuttappan**_ [2002 KHC 583] this Court held that the primary burden is on the tenant to prove the availability of vacant and suitable rooms in the possession of the landlord. Further, in _**Kunju v. Fathima**_ [2014 (3) KLT 563], this Court held that in order to non-suit landlord, the vacant building must be of such a character, which would meet the requirement of landlord. Any other interpretation of the proviso would lead to absurdity and cannot be accepted. Therefore, the burden was heavy on the respondent to prove that the petitioner has other vacant and suitable building in his **R.C.R.No. 200 of 2018(B)** ## -:11:- possession to accommodate the proposed business and the room is suitable for the same. 17. In the instant case, the respondent miserably failed to discharge the initial burden of proof, as absolutely there is no evidence to prove that any room in the first floor, facing towards the western road, is available in the possession of the petitioner. 18. Secondly, the learned counsel for the respondent vehemently contended that there is no pleadings, as regards the special reason for not occupying the rooms available in his possession, at the time of filing the Rent Control Petition. In view of the above arguments, the decision reported in _**Kunju v. Fathima**_ [2014 (3) KLT 563] this Court held that, it cannot be understood from the first proviso to S.11(3) of the Act that the **R.C.R.No. 200 of 2018(B)** ## -:12:- landlords need to plead the particulars of all the premises under their ownership and possession to claim an order of eviction. The proviso only recites that the Rent Control Court shall not order eviction, if the landlord has another building of his own in his possession, without satisfying the special reasons for not occupying the vacant premises. 19. Further, in _**Kunhamina v. K.T. Abubacker Haji**_ [2016 KHC 639], this Court held that where the landlord did not disclose the availability of another building in his possession, if the materials were placed before the court and he had given special reasons for not occupying the same and both parties have adduced the evidence on this aspect and understood the case each other, no prejudice would be caused to the tenant on account of the non-disclosure of the **R.C.R.No. 200 of 2018(B)** -:13:- vacancy possession of the other rooms in his possession in the Rent Control Petition and it is for the court to consider the suitability of the building. The decision reported in _**Urmese**_ _**J. Valooran v. Padma**_ [2014(4) KLT 765], this Court held that the landlord need not plead or prove special reasons for non occupation of the residential building in a claim for eviction under Section 11(3). 20. In the light of the aforesaid decisions, it can be safely concluded that non-disclosure of the availability of other rooms in the possession of the petitioner or the special reasons for not occupying those rooms, in the Rent Control Petition is not fatal and the burden of proof to prove the special reason for non occupation of the other available vacant room in the possession of the landlord would ## **R.C.R.No. 200 of 2018(B)** ## -:14:- - come into play only if the tenant discharges his initial burden by establishing the availability of other vacant and suitable buildings in the possession of the landlord. 21. In the instant case, as we have held that the respondent/tenant has not discharged the initial burden by proving the availability of alternative and suitable vacant building in the possession of the petitioner. In the above analysis, we find that there is no illegality or perversity in the appreciation of evidence available on record, under the first proviso to Section 11(3) of the Act and the courts below have correctly analysed the evidence on record and rendered just and proper findings in this respect. 22. The learned counsel for the revision petitioner prayed for granting one year time to **R.C.R.No. 200 of 2018(B)** -:15:- vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given eight months time from today to vacate the tenanted premises on the following conditions: _(i) The tenant in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within eight months from today._ _(ii)The tenant shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default._ _(iii) In the event of failure to comply_ ## **R.C.R.No. 200 of 2018(B)** ## -:16:- _any of the conditions stated above, the time granted to vacate the premises will stand automatically repealed and the landlord will be at liberty to proceed with the execution of the eviction order._ 23. The rent control revision is devoid of merits and dismissed accordingly. All pending Interlocutory Applications will stand closed. Sd/- **K.Harilal, Judge** Sd/- **Annie John, Judge** sl/DST. //True copy// P.S. To Judge