Panoli Alikutty and Panoli Moosa v. Suresh Babu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **RCREV. NO. 151 OF 2016** **AGAINST THE JUDGMENT DTD 18.11.2014 OF RCAA/III[rd] ADDL.DISTRICT JUDGE, KOZHIKODE, IN RCA 21/2013 AND ORDER DTD. 31.12.2012 IN RCP 22/2011 OF RENT CONTROL MUNSIFF, KOYILANDY,** ## **REVISION PETITIONERS/APPELLANTS/PETITIONERS:** **1 PANOLI ALIKUTTY S/O.KUNHOORAMKUTTY, CHENGOTTUKAVU VILLAGE, EDAKKULAM DESOM, KOYILANDY TALUK. 2 PANOLI MOOSA S/O.KUNHOORAMKUTTY, CHENGOTTUKAVU VILLAGE, EDAKKULAM DESOM, KOYILANDY TALUK. BY ADVS.SRI.K.MOHANAKANNAN M.A.ZOHRA SMT.A.R.PRAVITHA** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **SURESH BABU AGED 54 YEARS S/O.GOPALAN, MADAYIYIL HOUSE, CHEMANCHERI VILLAGE, CHEMANCHERI DESOM, KOYILANDY TALUK-673 304. BY ADVS.SMT.K.DEEPA (PAYYANUR) SMT.AKHILA K NAMBIAR** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING** **ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.R.No.151 of 2016** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **R.C.R.No.151 of 2016** **------------------------------------------Dated this the 21[st] day of October, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This rent control revision under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) has been filed by the appellant in R.C.A.No.21/2013 on the file of the Rent Control Appellate Authority (RCAA), Kozhikode, confirming the order dated 31/12/2012 in R.C.P.No.22/2011 on the file of the Rent Control Court (RCC), Koyilandy. The respondent herein is the respondent-tenant in the R.C.P. and the respondent in the R.C.A. The parties and the documents will be referred to as described in the R.C.P. 2. The petitioners-landlords moved the RCC seeking eviction under Sections 11(2)(b) and 11(3) of the Act. According to the petitioners, the petition schedule room was let out to the respondent on 20/12/2008 for a monthly rent of ₹400/-. The respondent is not regularly conducting any business in the shop room. He opens his shop once in a while. The rent from January, 2011 is in arrears. Though lawyer notice was sent to the respondent, the arrears has not been cleared so far. The petitioners also 3 ## **R.C.R.No.151 of 2016** allege that the tenanted premises is required _bona fide_ for the first petitioner's son, who intends to start a business in hardware. The petitioners are not in possession of any other rooms suitable for the need. The respondent is not regularly conducting any business in the tenanted premises and hence he is not entitled to the benefit under the second proviso to Section 11(3). 3. The respondent filed counter denying the _bona fide_ need alleged and contended that it is a mere pretext for eviction. The petitioners are in possession of vacant rooms in their possession, which are suitable for the need alleged. The allegation that the rent is in arrears, is incorrect and false. Though the respondent had offered rent to the petitioners, they refused to accept the same. Moreover, an advance amount of ₹9,000/- has also been paid by the respondent when the premise was taken on rent. The allegation that he is not conducting business regularly in the petition schedule room, is false. The respondent is entitled to the benefit of the first and second provisos to Section 11(3). Hence, according to the respondent, the petitioners are not entitled to an order of eviction as prayed for. 4. The RCC by order dated 31/12/2012, dismissed the R.C.P. R.C.A.No.21/2013 filed by the petitioners-landlords has also been dismissed confirming the order of the RCC. Aggrieved, the petitioners-landlords have come up in revision. 5. In the revision petition, it is alleged that the courts below without 4 **R.C.R.No.151 of 2016** properly appreciating the evidence and materials produced, have arrived at the findings, which are contrary to law and therefore liable to be reversed. 6. The point to be considered is whether the findings of the courts below, suffer from any illegality, irregularity or impropriety as canvassed on behalf of the petitioners-landlords. 7. Heard Adv.M.A.Zohra, the learned counsel for the revision petitioners and Adv.K.Deepa, the learned counsel for the respondent. 8. As stated earlier, it is the concurrent findings of the courts below that have been challenged in this proceedings by the petitioners-landlords. As per Section 20, this Court can, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and it may pass such order in reference thereto as it thinks fit. It is no doubt true that this Court under Section 20 is not expected to reappraise the evidence produced by the parties in exercise of its revisional jurisdiction and the limited question that falls for its consideration is whether the procedure followed by the RCC and the RCAA is illegal, irregular or improper. Nevertheless, it is well settled that the powers of Section 20 are wider than what is conferred under Section 115 CPC. In **Nalakath Sainuddin v. Koorikadan Sulaiman, 2002(6) SCC 1** , it has been held that 5 ## **R.C.R.No.151 of 2016** when the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Subject to limitations placed on the exercise of revisional jurisdiction, it remains a part of the general appellate jurisdiction of a superior Court in a wider and larger sense. It has been further held that, a jurisdiction to examine the propriety of the order or decision carries with it the same jurisdiction as the original authority to come to a different conclusion on the said set of facts. If any other view is taken, the expression 'propriety' would lose its significance. 9. The fact that the monthly rent for the tenanted premises is ₹400/-, is admitted. The case of the respondent is that though he had offered the rent to the petitioners, the latter refused to accept the same. If that be so, he ought to have resorted to the provisions of Section 9 of the Act, which deals with the right of a tenant paying rent or advance to receipt rent. Subsection (2) to Section 9 says that, where a landlord refuses to accept, or evades the receipt of any rent, the tenant may either remit the rent to the landlord by money order after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or by notice in writing, require the landlord to specify within ten days from the date of the notice by 6 ## **R.C.R.No.151 of 2016** him, a bank into which the rent may be deposited by the tenant to the credit of the landlord. The respondent in the case on hand, has no case that he has resorted to the aforesaid provision and therefore he cannot now take up a contention that the petitioners refused to accept the rent. 10. The respondent has a further case that he has paid an amount of ₹9,000/- as advance. According to the RCC, if at all there was any arrears, the petitioners were entitled to adjust the arrears from the aforesaid advance stated to have been paid by the respondent. This finding of the RCC which has been confirmed by the RCAA, is apparently wrong and against the settled principle of law. Every tenant is obliged to pay or tender rent to the landlord within the period agreed to. The purpose of advance rent is to protect the landlord from unscrupulous tenants who may run into arrears and vacate the premises and walk away with the arrears. The advance rent is available for adjustment or is liable to be refunded at the time of vacating the premises except where the law or the contract between the parties provide to the contrary ( **Raminder Singh Sethi v. D.Vijayarangam, AIR 2002 SC 2087** ). When there is arrears of rent and in the absence of any covenant providing for adjusting rent payable towards the advance amount, it has to be presumed that the landlord agreed to return the advance amount only on termination of the lease ( **Nazar v. K.P.Naseema, 2017(4) KHC 936** ). In the light of the dictum in **Issac Ninan v. State of Kerala, 1995 KHC 397** , 7 ## **R.C.R.No.151 of 2016** Section 8 of the Act is no longer in the statute book and so the rent arrears cannot be adjusted towards the advance amount ( **Abdul Gafoor M.C. v. K.Abdurahiman, 2015(2) KLJ 213** ). 11. Yet another finding of the courts below is that the arrears of rent has been paid subsequent to the filing of the R.C.P., i.e., during the pendency of the R.C.P. and so the petitioners are not entitled to an order of eviction under Section 11(2)(b). To constitute the ground for eviction under Section 11(2)(b), the landlord has to sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent due together with 6% interest and postal charges incurred in sending the notice within 15 days from the receipt of the notice. The cause of action arises after 15 days of receipt of the notice. Therefore, after 15 days of the receipt or refusal of the notice by the tenant, the landlord can make an application to the RCC to evict the tenant. If the RCC is satisfied that the tenant has not paid the rent due within 15 days after the expiry of the period fixed in the agreement of tenancy and in the absence of any such agreement, by the last day of the month next following that, for which the rent is payable, the court shall make an order of eviction. This eviction order of course is a conditional order and will be kept in abeyance for one month or such further period as the RCC may in its discretion allow and if the tenant deposits the arrears of rent with interest and cost of sending the notice, within the said period, the court shall 8 ## **R.C.R.No.151 of 2016** vacate the order. Here the case of the petitioners that on the date of filing the petition, the rent was in arrears, is not disputed. The respondent does not dispute the fact that registered notice was sent to him and that it was received by him. He has also no case that he has resorted to Section 9 of the Act. Therefore the ingredients under Section 11(2)(b) have clearly been made out by the petitioners. Hence they are entitled to an order of eviction under Section 11(2)(b). Merely because the rent arrears have been paid subsequent to the filing of the R.C.P., is no ground to reject the claim for eviction under Section 11(2)(b). If any deposit has been made, the same can be taken into consideration while an application under Section 11(2)(c) is filed ( **Usha Anil Kumar v. Kunyil Sakeena, 2017(3) KHC 957** ). In the light of the aforesaid precedents, the finding of the courts below that the petitioners are not entitled to an order of eviction under Section 11(2)(b), is obviously incorrect/wrong and liable to be interfered with. 12. Now coming to the need under Section 11(3). Interestingly, the _bona fides_ of the need alleged by the petitioners has never been considered by both the courts below. The courts below have directly gone into the first proviso to Section 11(3). The petitioners in the R.C.P. as well as in the evidence, assert the _bona fide_ need of the first petitioner's son. According to the petitioners, the first petitioner's son has no job or employment of his own and hence he needs the tenanted premises for starting a hardware business in 9 ## **R.C.R.No.151 of 2016** the same. Though the respondent challenges the said need alleged, no evidence has come on record to show that the first petitioner's son has any other business or other source(s) of income. It is true that it has come out in evidence that he assists his father, namely the first petitioner, in the cool bar being run by the latter. However, that is no ground to reject the claim putforward. In the counter, the contention is that the need alleged is a pretext for eviction and as far as the respondent understands, neither the petitioners nor the first petitioner's son require the building for the need alleged. Therefore, the case of the respondent is only that to his understanding or to his knowledge, the need alleged is incorrect or false. In the absence of materials to the contrary, it can only be held that the need alleged is _bona fide_ . 13. Further, in the counter, the specific contention raised is that the petitioners are in possession of two other rooms suitable for the need alleged. According to the respondent, two rooms in the building owned by the petitioners bearing no.CK XII 78 and CK 1279 are in the possession of the petitioners. However, the Advocate Commissioner in Ext.C1 has reported that these two rooms are not vacant and that they are in possession of tenants. Therefore the specific case of the tenants that they are entitled to the benefit of the first proviso, is disproved by the Commission report filed in this case, which report has not been discredited in any way by the 10 ## **R.C.R.No.151 of 2016** respondent. The respondent further contends that the property tax assessment register would show that the aforesaid rooms are lying vacant. The view taken by this Court in **Cheruvalath Krishnadasan v. Addissery Raghavan, 2017(4) KHC 894** that the entries in the property tax assessment register cannot be taken as conclusive proof of the vacancy possession of the building, has been approved by a Full Bench of this Court in **Panoli Alikutty v. Suresh Babu** , **2019(1) KLT 110** . Therefore merely because there is an entry in the assessment register, that the room is vacant would not help the respondent in establishing his case especially in the light of the report of the Advocate Commissioner to the contrary. 14. Now coming to the second proviso to Section 11(3). In order to get the benefit of the said proviso, the respondent has to prove that he is dependent on the income derived from the business in the tenanted premises and that there are no other building available in the locality to which he could shift his business. The burden to establish that a tenant is entitled to the protection under the second proviso by showing that both the ingredients in the said proviso are satisfied in his favour, is on the tenant ( **Lucy Varghese v. Karunakaran Achary, 2010(2) KHC 643 ; Kurian K.Kuriakose v. Usha Cherian, 2008(1) KHC 731** and **Francis v. Sreedevi Varassiar, 2003 KHC 397** ). The two ingredients of the second proviso are conjunctive and not disjunctive and in order to get the benefit of 11 ## **R.C.R.No.151 of 2016** the proviso, the tenant has to satisfy both the ingredients ( **Poolakandi Kumaran v. Kulangara Veettil Mathu, 2009(1) KHC 515** ). 15. In the case on hand, the case of the petitioners is that the respondent is not conducting business regularly in the petition schedule room and that he opens the shop once in a while. This is disputed by the respondent who contends that the income derived from the business being conducted in the tenanted premises is his sole means of livelihood. The mere statement by the respondent that he is getting income from the business, would not be sufficient to get the benefit ( **Kunhiraman Nair v. Madhavi, 2002 KHC 371** ). In order to get the benefit of second proviso, the tenant has to prove that the income from the business is a substantial one [ **Poolakandi Kumaran** 's case ( _Supra_ )]. In the evidence, the respondent has taken up a case that initially he had taken the building on rent for the purpose of conducting a business in the sale of ayurvedic medicines. According to him, he is now conducting a business in cement. However no documents have been produced to substantiate the same. One aspect pointed out by the petitioners to show that the respondent is not conducting business in the tenanted premises is the electricity bills, namely, Ext.A4 series which would show that there is no consumption of electricity during the said period. The respondent when examined as RW1 admits that as per the rental agreement, he is bound to pay the electricity charges. However he admits that the 12 ## **R.C.R.No.151 of 2016** electricity charge is being paid by the petitioners. The RCAA has found a quite an interesting and strange explanation for the non consumption of electricity by the respondent which even the latter does not have. According to the RCAA, the room was taken on rent for the business in ayurveda medicine, for which electricity was required. However, the petitioners in order to evict the respondent, disconnected the power supply and hence the respondent must have been constrained to start the cement business for which electricity is not required. The respondent has no such case at any point of time. We wonder from where the RCAA found out such an explanation. Moreover, though the respondent contends that the income from the schedule building is his main source of income or the only source of income, no documents have been produced to substantiate the same. No accounts were produced by the respondent to show the income derived from the business conducted in the tenanted premises ( **P.A.Abdul Gafoor v. Gulam Khader, MANU/KE/2266/2015** ). In such circumstances, it can be only found that the respondent has failed to prove that the income from the petition schedule room is his sole means of livelihood. 16. Now coming to the question as to the availability of other vacant rooms in the locality. The petitioners assert that there are other vacant rooms in the locality for the respondent to shift his business. The Advocate Commissioner also reports so. Now even assuming that there are no rooms 13 ## **R.C.R.No.151 of 2016** available in the locality, the respondent is not entitled to the benefit under the second proviso to sub-section (3) to Section 11, as he has failed to establish that the other limb of the proviso. The facts and circumstances of the case and the evidence on record in this case would establish that the approach of the courts below into the claim for eviction made by the revision petitioner for eviction is contrary to law, perverse and without proper appreciation of the evidence on record. Therefore we exercise the revisional jurisdiction under Section 20 of the Act to rectify the illegality, irregularity and impropriety committed by the courts below. Hence the revision petition is allowed. The impugned order passed by the RCC and confirmed by the RCAA declining eviction under Sections 11(2)(b) and 11(3) of the Act is set aside and eviction under the said grounds ordered. The respondent shall vacate the petition schedule room within a period of one month from the date of this order. Interlocutory applications, if any pending, shall stand closed. **==> picture [49 x 11] intentionally omitted <==** **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/