Pakkayil Ibrahim v. Nafeesa @ Nabeesa; Thahira M.; Naseema M.; Najma E.M. and others (R.C.Rev.No.124 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 R.C.REV.NO. 124 OF 2022** **AGAINST THE JUDGMENT DATED 04.02.2022 IN R.C.A.NO.16 OF 2021 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VATAKARA AND THE ORDER DATED 09.02.2021 IN R.C.P.NO.106 OF 2007 OF THE RENT CONTROL COURT (MUNSIFF), VATAKARA** ## **REVISION PETITIONER:** **PAKKAYIL IBRAHIM, AGED 61 YEARS, S/O. ABDURAHIMAN,** **RESIDING AT 'KEYPPEES HOUSE', VATAKARA AMSOM, DESOM, VATAKARA POST, KOZHIKODE, PIN – 673101. BY ADVS. R.PARTHASARATHY B.KRISHNAN** ## **RESPONDENTS:** **1 NAFEESA @ NABEESA, AGED 69 YEARS, W/O. LATE MALOL ABDURAHIMAN, MALOL HOUSE, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE, PIN – 673308. 2 THAHIRA M., AGED 41 YEARS, W/O. MAHAMOOD, ROSE VALLEY (KELOTH), AMARAVATHY, VILLIAPPALLY AMSOM, THIRUMANA DESOM, VATAKARA TALUK, KOZHIKODE, PIN – 673542.** 2 R.C.Rev.No.124 of 2022 **3 NASEEMA M., AGED 38 YEARS, W/O. MUHAMMADALI, MAMMAS, VATTAKANDY, MAKKOOL PEEDIKA, NADAKKUTHAZHA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE, PIN – 673104.** **4 NAJMA E.M., AGED 35 YEARS, W/O. BASHEER, ASYA MANZIL, VATTAMMATH PARAMBU, VILLIAPPALLY AMSOM, KEEZHAL DESOM, P.O. KEEZHAL , VATAKARA TALUK, KOZHIKODE, PIN - 670104** **BY ADVS. U.K.DEVIDAS K.K.ANILRAJ** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 25.07.2022, THE COURT ON 17.08.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.124 of 2022 ## **O R D E R** ## Ajithkumar, J. The respondent in R.C.P.No.106 of 2007 on the file of the Rent Control Court (Munsiff), Vatakara, is the revision petitioner. That R.C.P. was filed by the respondents-landladies seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 and it was allowed on 09.02.2021. The petitioner preferred an appeal under Section 18(1)(b) of the Act. The Appellate Authority (Additional District Judge), Vatakara dismissed the appeal. Aggrieved thereof, the petitioner has filed this Revision under Section 20 of the Act. 2. On 14.07.2022, notice was ordered on admission. The respondents entered appearance through her learned counsel. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. The eviction proceedings was initiated in the year 2007. As per the order dated 30.08.2008, the Rent Control 4 R.C.Rev.No.124 of 2022 Court dismissed the R.C.P. In the appeal, that order was set aside and eviction was ordered as per judgment dated 09.09.2010. The matter was carried to this Court by filing R.C.Rev.No.311 of 2010. This Court as per the order dated 10.08.2011 set aside the judgment of the Appellate Authority and remanded the matter for fresh consideration. On 21.12.2011, the Rent Control Court ordered eviction, which was challenged by the petitioner by filing R.C.A.No.36 of 2012. That appeal was dismissed and the order of eviction was confirmed as per the judgment dated 24.11.2015. Challenging the said concurrent findings, the petitioner filed R.C.Rev.No.24 of 2016. The landlord died by that time. Additional respondents 2 to 5, who are his legal representatives, came on record. This Court, after considering the contentions of the petitioner that on the death of the original landlord, the need projected stood abated and also the other contentions, set aside the order of eviction. The matter was again remanded to the Rent Control Court. Paragraph Nos.7 and 8 of the order of this Court dated 5 ## R.C.Rev.No.124 of 2022 ## 05.12.2018 in R.C.Rev.No.24 of 2012 read as follows:- “7. In the above analysis, we find that the facts of the instant case cannot be compared with the facts in Alavi K.P v. Jameela P.P. & Others [2014 (1) KLJ 318] and Narayanan v. Tahira [2009 (3) KLT 749]. Therefore, the proposition laid down in the aforesaid decision in view of the particular facts of that case cannot be taken as a _ratio decidendi_ which can be applied to the instant case. We find that, in view of the pleadings in the Rent Control Petition which is confined to the own occupation of the deceased landlord alone, the cause of action based on the bona fide need will not survive after the death of the landlord. Therefore, the bona fide need will stand abated; but we are of the opinion that the legal heirs of the deceased landlord can be given an opportunity to amend the Rent Control Petition, if they also bona fide require the petition schedule shop room for their own occupation. 8. In the above view, the impugned judgments passed by the courts below will stand set aside and the Rent Control petition is remitted to the Rent Control Court for fresh disposal, if the legal heirs of the deceased landlord proceeds with the amendment, within one month from the date of appearance before the Rent Control Court. If the legal heirs proceed with the Rent Control petition, the same shall be disposed of at the earliest, at any rate within a period of three months from the date of their appearance.” 6 R.C.Rev.No.124 of 2022 5. In the light of the said observations, the respondents got the R.C.P. amended by adding paragraph Nos.4 and 5, which read,- “4A. Pending above petition, the petitioner died. Supplemental petitioner 2 to 5 are the wife and children of deceased petitioner. Supplemental petitioners 2 to 5 have no job or income. Supplemental petitioners 3 to 5 have husbands and children. They are depending on their husbands for meeting their expenses. All the petitioners likes to have job and income of their own. Therefore they bona fide intents and wishes to commence a business of readymade garments for woman and this own. children and also pardha items sales business from the petition schedule room. Supplemental petitioners are not in possession of any other rooms to commence the said business. If the said business is commenced in the petition schedule shop room same would be successful and profitable, and this petitioners can earn income of The petition schedule shop room is most suitable and convenient to commence the said business. In the circumstances the supplemental petitioners are in bona fide need to get vacant possession of the petition schedule shop room to commence above said business the husbands of Supplemental petitioners 3 to 5 would help the petitioners to commence and-carry on. business. The 7 ## R.C.Rev.No.124 of 2022 supplemental petitioners would appoint experienced staff to commence and carry on proposed business. 4B. Deceased petitioners Abdul Rahiman has other children namely Shamsu, Basheer, Muhammad, Ismail and Raheema. They all have their own avocations. Therefore they are not interested to join in the above petition. The petition schedule shop room is now in coownership and joint possession of suppl. Petitioners, above said five other children of deceased petitioner and Abdulla. The supplemental petitioners have decided to proceed with the above petition with the consent of other co-owners mentioned above. All the co-owners have no objection in evicting the respondent from the petition schedule shop room for the bona fide need of supplemental petitioners.” 6. Earlier, during the trial, PW1 and RWs.1 to 4 were examined. Exts.A1 to A5, B1 to B14 and C1 were marked. After remand and the amendment of the pleadings, PWs.2 and 3 were also examined. PW3 is the co-owner of the original landlord, who jointly purchased the petition schedule shop room. That evidence was considered by the Rent Control Court in detail and held that the need urged was bona fide. There was plea under the first and second provisos to Section 11(3) of the Act. The Rent Control Court had held that the 8 R.C.Rev.No.124 of 2022 petitioner succeeded in proving that he was depending for his livelihood solely on the income derived from the business in the petition schedule shop room. The Appellate Authority reversed that finding and confirmed all other findings of the Rent Control Court. Resultantly, the order of eviction was confirmed by the Appellate Authority. 7. The learned counsel appearing for the petitioner would contend that both the courts below went wrong in finding that the need urged by the respondents was bona fide. It is contended that two rooms which got vacated after the institution of R.C.P were let out to third parties, and therefore, the need projected by the original landlord or the respondents cannot be said to be real or genuine. It is contended that the amendment brought about in the R.C.P., after the death of the landlord relates back to the date of institution of the petition and as such letting out of two rooms although it was before the death of the original landlord, tells upon the bona fides of the need put forth by the respondents. It is also contended that the observations in the order of remand dated 9 R.C.Rev.No.124 of 2022 05.12.2018 do not bar this Court from considering the aforesaid question. 8. The learned counsel appearing for the respondents, on the other hand, would contend that the need now urged is that of the wife and children of the deceased landlord and the evidence of PW2 with respect to that aspect has not been seriously challenged. Two rooms in question were let out by the co-owner, PW3, and as such that cannot be a reason to doubt the bona fides of the respondents. When the respondents are allowed to occupy the petition schedule shop room, which are more or less similar to other two rooms, it cannot be said that those rooms were actually available to the respondents for their occupation. In the light of the oral testimony of PW3, Kunhabdulla, the co-owner, that it was he who let out the building, that cannot be a reason to negative the claim of the respondents. Further, it is pointed out that the petitioner did not choose to adduce any evidence after the remand and that shows that he has no serious contentions with respect to either the need projected by the respondents 10 R.C.Rev.No.124 of 2022 or his claim under the second proviso to Section 11(3) of the Act. 9. In order to contend that the amendment will relate back to the date of institution of the R.C.P., the learned counsel for the petitioner placed reliance on the decisions in **Siddalingamma and another v. Mamtha Shenoy [(2001) 8 SCC 561]** . The Apex Court held that the doctrine of relation back, which generally governs amendment of pleadings unless for reasons, the court excludes the applicability of the doctrine in a given case, the petition for eviction as amended would be deemed to have filed originally. It is contended that, therefore, the whole evidence has to be appreciated in the light of the averments made in the amended petition. 10. Going by the said proposition of law, the amendment needs to be related back to the date of institution of the petition. The court is empowered to hold otherwise by saying that an amendment would not have any retrospective application. In this case, while remanding the matter by this 11 R.C.Rev.No.124 of 2022 Court and allowing to bring about amendment, there has not been a direction regarding relation back. But the observation of this Court contained in paragraph No.7 of the order of remand, which was extracted above, is decisive. It was specifically held by this Court that the cause of action based on the bona fide need of the deceased landlord would not survive after his death, and therefore, the same stood abated. After holding so, this Court allowed the respondents to effect an amendment to the R.C.P. and to proceed with. The necessary implication of the said observations is that the amendment does not have any effect on the period prior to the death of the landlord. In other words, the amendment would not relate back to the date of institution of the rent control proceedings. So much so the evidence cannot be interpreted as if the amendment were there at the inception itself. 11. The next contention is that the order of remand can be called in question since it is only an interlocutory order. In **Mundottu Kavil Thekkeamarath Kunhanantha Marar** 12 R.C.Rev.No.124 of 2022 **v. Kallat Abdul Varis and another [2018 (1) KLT 111]** , a Division Bench of this Court after referring to the decisions of the Privy Council and the Apex Court held that interlocutory orders, which have the the force of a decree must be distinguished from other interlocutory orders which are a step towards decision of the dispute between the parties by way of a decree or a final order. It was accordingly held further that orders of remand were only in the nature of interlocutory orders. 12. But the question involved here is of a different shade. The question is whether this Court can overlook the order of remand dated 05.12.2018 while considering the question involved in the revision. 13. In **Jasraj Inder Singh vs Hemraj Multanchand [AIR 1977 SC 1011]** , the Apex Court has considered the question as to what extent an order of remand can be called in question. It was held that,- "In an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a 13 R.C.Rev.No.124 of 2022 subordinate court is bound by the direction of the High Court. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of coordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it. This is so because the remand order by the High Court is a finding in an intermediate stage of the same litigation.” 14. Following the said principle, a Division Bench of this Court in **Mathew Varkey v. Abraham [2001 (1) KLT 432]** held that the High Court hearing a matter on the second occasion cannot discard the earlier finding. 15. In view of that, the observations of this Court in the order dated 05.12.2018 in R.C.Rev.No.24 of 2016 certainly would stand in the way of raising the contention that the incidents that transpired before the death of the landlord would also have reckoning while deciding the plea of eviction now raised by the respondents. 16. PW2 categorically deposed that she along with other respondents want to start a business in ready-mades of 14 R.C.Rev.No.124 of 2022 children and parda materials. There is nothing in evidence to show that any of the respondents has a job. It is true that respondents 2 to 4 are married and their husbands are well off. That does not mean that the desire of the respondents to start a business in their own building is not honest or genuine. In the absence of anything on record to disbelieve the order of PW2, it can only be said that the need by the respondents is bona fide. The findings of the courts below in that regard are not liable to be interfered with. 17. Letting out of two other rooms owned by the deceased landlord and PW3 jointly is the main reason pointed out to discard the need urged by the respondents. The said rooms were let out while the original landlord was alive. PW3 now deposed that having the respondents allowed to be in occupation of the petition schedule shop rooms, he let out the other rooms. It is not able to say that the said decision was anyway with an oblique motive. In the said circumstances, the fact that those rooms were let out during the pendency of this proceedings does fail the need urged by the respondents 15 R.C.Rev.No.124 of 2022 either on the aspect of bona fides or under the first proviso to Section 11(3) of the Act. 18. The plea of the petitioner under the second proviso to Section 11(3) of the Act was declined by the courts below. Of course, relying on the evidence of RW1 and Exts.B11 to B13, which are the invoices relating to the business of the petitioner, the Rent Control Court held that he has been depending for his livelihood solely on the income derived from the petition schedule shop for his livelihood. As pointed out by the Appellate Authority, after recording that evidence, which was in 2008, there is a lapse of a long duration. The subsequent developments do not come on record. That apart, the evidence let in by the petitioner cannot be said to be sufficient to prove that he has no other income and can depend on the income from the business in the petition schedule shop room alone for his livelihood. We do not find any reason to interfere with the finding of the Appellate Authority in this regard. 19. The courts below found that evidence of RWs.2 to 4 16 R.C.Rev.No.124 of 2022 only shows that no vacant rooms are available in their respective buildings. That is not enough to show that no other building is available in the locality for being availed on rent. The concurrent finding of the courts below in that regard is also devoid of any illegality or perversity. We, therefore, do not interfere with the said findings. 20. In view of what are stated above, we hold that the eviction ordered by the courts below concurrently under Section 11(3) of the Act is not liable to be interfered with. Accordingly, this Revision is dismissed. 21. At the time of pronouncement of the order, the learned counsel for the petitioner has made a request to afford six month's times for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting the business. The learned counsel for the respondents is agreeable to grant the same. 22. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the 17 ## R.C.Rev.No.124 of 2022 following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further he shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition 18 R.C.Rev.No.124 of 2022 schedule shop room will stand cancelled automatically and the petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr