Pakkayil Ibrahim v Malol Abdulrahiman

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 RCRev..No. 311 of 2010() -----------------------RCA.146/2008 of RENT CONTROL APPELLATE AUTHORITY, VADAKARA RCP.106/2007 of RENT CONTROL COURT, VADAKARA .................... REVN.PETITIONER/RESPONDENT IN RCA PAKKAYIL IBRAHIM, S/O. ABDURAHIMAN, AGED 58 YEARS, TRADER, KEYPEES HOUSE, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.C.JAYACHANDRAN RESPONDENT(S): APPELLANT IN RCA MALOL ABDURAHIMAN, S/O. MAYINKUTTY, AGED 68 YEARS, TRADER, MALOL HOUSE, ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. ADV. SRI.U.K.DEVIDAS FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY PASSED THE ## **PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.** ----------------------------------------------RCR. No. 311 of 2010 ----------------------------------------------Dated this the 10[th] day of August, 2011 ## **O R D E R** ## **Pius C.Kuriakose, J.** Tenant is the revision petitioner. He was sought to be evicted on the ground under sub-section (3) of Section 11. The need projected by the landlord was that he has been conducting ready made business in partnership in Dubai for more than 15 years and he has now returned from Dubai with intention of doing textile and ready made business of his own in the petition schedule building situated in Vatakara Town. The bonafides of the need was disputed. The tenant also claimed that he is entitled to the protection of the second proviso to sub-section (3) of Section 11. The evidence at trial consisted of Exts. A1 to A3, B1 to B14, C1 commissioner's report and oral evidence of PW-1 and RWs. 1 to 4. On evaluating the evidence the Rent Control Court came to the conclusion that the need projected in the RCP RCR.311/10 -2- was sans bonafides. That court also concluded, the tenant was able to prove that he satisfied the two ingredients of the second proviso to sub-section (3) of Section 11; as a result the court dismissed the RCP. The landlord carried an appeal to the Rent Control Appellate Authority and the Rent Control Appellate Authority on re-appreciating the evidence, reversed all the findings of the Rent Control Court and has by the impugned judgment allowed the RCA and ordered eviction. 2. In this revision petition under Section 20 various grounds are raised challenging the eviction order passed by the Rent Control Appellate Authority. Sri. B. Krishnan, learned counsel for the revision petitioner and Sri. U.K.Devidas, learned counsel for the respondent addressed elaborate submissions before us assailing/supporting the impugned judgment of the Appellate Authority. Mr. Krishnan submitted that the Rent Control Court found that RCR.311/10 -3- the need was without bonafides based on the admission of the landlord that he had no trade in Dubai at any point of time as against his claim that he proposes to start a trade since he is closing down his trade at Dubai. According to Mr. Krishnan, the view taken by the Appellate Authority that it is permissible for a landlord to start trade in textiles irrespective of whether he was conducting such trade in Dubai will not be correct in the present case where the need itself is projected against the back-drop of closing down of the alleged textile business in Dubai. Mr. Krishnan submitted further that the reversal by the Appellate Authority of the finding of the Rent Control Court that the second ingredient of the second proviso is also satisfied in this case is the result of a totally erroneous appreciation of the evidence. According to the learned counsel, though as regards the first limb the learned Appellate Authority has pointed out certain blemishes in the findings of the Rent RCR.311/10 -4- Control Court, it has not been clearly found that the first limb is not satisfied. In fact the, the Appellate Authority assumes that the first limb is satisfied and goes on to find that the second limb is not satisfied. There was no warrant for interference with the findings of the Rent Control Court, so submitted by Mr. Krishnan who placed reliance on the judgment of the Full Bench of this Court in Thanuja Sunderdas v. Sisirkumar Raj, 2008(4) KLT 241. 3. Per contra Sri.U.K.Devidas, learned counsel for the respondent would support the judgment of the Appellate Authority with all his might. He reminded us of the contours of the revisional jurisdiction under Section 20 and submitted that under the statutory scheme the final court on facts is the Appellate Authority. When the Appellate Authority has entered reasonable findings based on evidence this court in revision is not expected to interfere. He submitted that it is not disputed that the landlord has RCR.311/10 -5- come back from Dubai. It is not challenged that the landlord is capable of doing business. It is admitted that the landlord does not have any business here at Vatakara. When that is the situation, there is no reason for not holding that the need is bona fide. As regards the question of protection of second proviso to Section 11(3) Mr. Devidas submitted that the burden of proof has been settled by the decision in Francis v. Sreedevi Varassier, 2003(2) KLT 230 (F.B) to be on the tenant. That burden has not been discharged. 4. We have very anxiously considered the rival submissions addressed at the Bar. It is true that bona fide need in the context of sub-section (3) of Section 11 means a reasonable need involving an element of necessity which need not amount to an absolute necessity. But the essential point to be considered in all cases where the bonafides of the need is disputed is whether the need projected is an RCR.311/10 -6- honest one or whether it is a ruse to evict the tenant somehow or other. The case specifically pleaded by the landlord is that he was conducting textile trade in Dubai in partnership for more than 15 years and that he has now returned from Dubai with intention of starting textile and ready made business in the schedule building situated at Vatakara, his home town. In fact, he had even given the name of his business at Dubai as Iris Cotton Culture. But in evidence he had to concede that he had no business in Dubai at any point of time. It was this shift in stand which persuaded the Rent Control Court to think that the landlord is not worthy of credence. That court also found that no convincing explanation was offered by the landlord regarding this marked shift in his stand in the petition at the stage of evidence. Having re-appreciated the evidence which became necessary in view of the divergence in the findings we feel that two relevant issues; (i) whether the RCR.311/10 -7- need is bona fide? and (ii) whether the tenant is entitled to the protection of the second proviso? are to be reconsidered by the Rent Control Court. 5. We set aside the judgment of the Appellate Authority and the order of the Rent Control Court. The RCP is remanded to the Rent Control Court for fresh decision. The issues as to the bona fides of the need and as to the tenant's eligibility for protection of the second proviso will be re-considered. The landlord should be allowed to amend pleadings if the landlord wants to. If the landlord amends pleadings, tenant should be permitted to raise counter pleadings. Both sides should be given opportunity to adduce evidence and a revised order will be passed answering all the issues. Rent for the building is re-fixed tentatively with effect form 01/09/11 at Rs.6,500/- per mensem. This is tentative re-fixation. Till fair rent is fixed on application submitted by either party the revision petitioner shall pay RCR.311/10 -8- rent at the rate of Rs.6,500/- per mensem. The Rent Control Court will expedite matters and pass revised order within four months of parties entering appearance pursuant to this order of remand. Parties will enter appearance before the Rent Control Court on 19[th] September, 2011. **(PIUS C.KURIAKOSE, JUDGE)** **(C.K.ABDUL REHIM, JUDGE)** ksv/kns-