Parakkandy Poochira Valappil Abdul Razak v. Kurukkan Abdul Azeez

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940** **RCRev.No. 30 of 2019** **AGAINST THE JUDGMENT DATED 07-11-2018 IN RCA 146/2016 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THALASSERY** **AGAINST THE ORDER DATED 22-07-2016 IN RCP 173/2015 of RENT CONTROL (PRINCIPAL MUNSIFF) COURT, KANNUR** ## **REVISION PETITIONER/ APPELLANT/ RESPONDENT :** **PARAKKANDY POOCHIRA VALAPPIL ABDUL RAZAK, AGED 67 YEARS, S/O.ABDUL KADER HAJI, CW-1403, STATION ROAD, KANNUR - 670 001.** **BY ADVS. SRI.MATHEW KURIAKOSE SRI.G.GIREESH** ## **RESPONDENT/ RESPONENT/ PETITIONER :** **KURUKKAN ABDUL AZEEZ, AGED 68 YEARS, S/O.MUHAMMED, RESIDING AT KANNUR II AMSOM, TALAP, SOUTH BAZAR, KANNUR-2, PIN - 670 002.** **BY ADV. SRI.V.PREMCHAND** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev..No. 30 of 2019** 2 ## **ORDER** ## **Annie John, J** The revision petitioner herein is the tenant, who is confronting with an order of eviction passed by the courts below under Section 11(8) of the Kerala Building (Lease and Rent Control) Act, 1965 [for short, the Act]. The respondent herein is the landlord. (The parties are referred here as per their status in the rent control petition). According to the petitioner, the plaint schedule property was leased out to the respondent on 01.07.1981 and the petitioner is doing business in foot wear and bags in a room having a plinth area of 13.8 sq.mtrs. in the same building. It is further contended that the petitioner is not able to develop his business since the room in possession of him is not sufficient to meet the need of the petitioner. Highly aggrieved, the **RCRev..No. 30 of 2019** 3 respondent preferred an appeal, which was also dismissed by the appellate authority. Hence this revision has been filed by the respondent, challenging the legality and propriety of the concurrent findings of the courts below. 2. Heard the learned counsel for the revision petitioner and the learned counsel appearing for the respondents. 3. The respondent is the owner of the petition schedule building which was leased out to the revision petitioner on 01.07.1981 for the business purpose on a monthly rent of Rs.250/-. As per the order in RCP 67/11, the fair rent of the petition schedule building was fixed as Rs.5,000/- per month. The term of lease was only for 3 months. In fact, the respondent is doing business on footwear and bags in room No.CB35/1405 of the same building. The said building has got a plinth **RCRev..No. 30 of 2019** 4 area of 13.8.sq.metre. According to the respondent, the petition schedule room is more sufficient enough to conduct his business. In order to expand his business he requires the petition schedule shop room for the purpose of stocking more items in chappals. According to the respondent, the petition schedule shop room is near to the room in which the respondent is conducting the chappals and bags business. It was also stated that the revision petitioner had sublet the petition schedule building to the 3[rd] party and getting daily rent and if the room is surrendered by the revision petitioner it is beneficial for the conduct of the business of the respondent. The respondent _bona fide_ requires the petition schedule shop room to expand his business as an additional accommodation. There will be no hard ship to the revision petitioner on surrendering of the petition schedule building because he has already sublet the building to the 3[rd] party. The **RCRev..No. 30 of 2019** 5 revision petitioner has strongly opposed the petition filed by the respondent and stated that the respondent is conducting the footwear and bags business in a room No.CB35/1405 of the same building. He had never sublet the building to any 3[rd] party. Over and above he is conducting the mobile phone business in the petition schedule shop room and he himself and his family members are fully depending upon the income which derives from the business which is being held in the petition schedule shop room and if he is evicted, it will cause irreparable injury and he could not able to continue his livelihood. So, from the pleadings of the respondent it has come out that he requires petition schedule shop room for the expanding his business. According to the respondent he is conducting business on chappals and bags at present and for the purpose of expanding his business, he has approached this Court and filed petitioner under Section 11(8) of the Kerala **RCRev..No. 30 of 2019** 6 Building (Lease and Rent Control) Act. The respondent/landlord was examined as PW1 and revision petitioner was examined as RW1. The landlord tenant relationship is also admitted. The revision petition has taken the disputed room on lease from PW1 after executing Ext.A1 coolie chit dated 27.06.1981. It is also admitted fact that the PW1 is doing business on chappals in another room situated near to the petition schedule shop room and it was also admitted that the DW1 was doing business under the same building under the same room of the petition schedule shop room. The case of the revision petitioner is that the petitioner has no such requirement and the present room where PW1 has been conducting the business is spacious, suitable and convenient for the business carried on by him. It was also disposed by the RW1 that the petition schedule room is not situated adjacent to the room where PW1 has been conducting **RCRev..No. 30 of 2019** 7 business. When the respondent seeks for getting the vacant possession of the petition schedule room from the possession of the revision petitioner, the burden is upon the respondent to prove that the present room in his occupation is not sufficient enough to meet his requirements. Per contra the RW1 has stated that the petition schedule shop room is situated in the heart of Kannur town and abutting to the main road. Such a room will not be used by any person for stocking chappals. PW1 is admittedly the owner of the petition schedule building. So, it is well settled fact that being the owner of the petition schedule building he is the person to take decision how to make use of the room once he obtains vacant possession of the same and RW1 is a tenant of the respondent is not a proper person to dictate PW1 that he does not require expansion of his business. It is up to the respondent/landlord to decide whether he needs **RCRev..No. 30 of 2019** 8 expansion of his business. Admittedly, the PW1 is conducting the business on chappals and bags. This fact has not been deposed by the RW1 and now, the respondent/landlord seeks to get vacant possession of the petition schedule shop room only for the purpose of expanding his business. The RW1 has stated that the present room in the occupation of the respondent/landlord is sufficient enough to stock more chappals. In this connection, the commission was appointed at the instance of the respondent/landlord. He has gone to the spot and prepared the commission report which was marked as Ext.C1 and the plan attached to it was marked as Ext.C2. In Ext.C1, the commissioner noted that the room in occupation of the petitioner and petition schedule room are under the same roof and he has measured out the plinth area of the room in the possession of the respondent and the petition schedule room and it was noted in **RCRev..No. 30 of 2019** 9 Ext.C2 plan. Ext.C2 would also show that between the room there is another room which is marked as 2 in Ext.C2 plan and that room does not belong to the respondent. 4. Indeed, PW1 needs additional accommodation. For that purpose, the petition schedule room which is the nearest room in which he has been conducting the business of chappal. That is why, he seeks recovery of the petition schedule room for expansion of his business. As per Ext.C2 plan, it could be seen that PW1 is occupying a room in the same building and he has been conducting the business on chappal there. Admittedly RW1 is the tenant of PW1. He occupies another room belongs to PW1. It was also contended by RW1 that the petitioner does not require the petition schedule shop room for expanding his business. But it is not up to the appellant/ tenant to dictate the landlord how to start a **RCRev..No. 30 of 2019** 10 business by the landlord. It is true that the petition schedule room is situated in the heart of Kannur city. But, it does not mean that the respondent/ landlord could not able to stock the chappals in the petition schedule shop room. 5. In _**S. Sivasubramanya Iyer v. S.H.Krishnaswamy (AIR 1981 Kerala 57)**_ , it has held that “if the landlord feels that additional accommodation is necessary and if there are sufficient grounds or justification in support of it and therefore, if he seeks recovery of the part of the building let out to a tenant under Section 11(8) of the Act, then, it is not for the court to find out whether even without such additional accommodation, the landlord could somehow manage to carry on”. 6. RW1 has subsequently pointed out that there are rooms on the upstair portion of the same **RCRev..No. 30 of 2019** 11 building belongs to PW1. The respondent has stated that those rooms were already let out and in order to establish this fact, Exts.A2 and A3 koolichits were produced. As per Ext.C2 plan, there are two rooms in the upstair of the same building, which was occupied by other persons. It has also reported by the Commissioner that those rooms were locked out but the name boards could be seen in front of those rooms. It has also deposed that at the time of inspection, the tenants of those rooms were not available. The respondent could not able to open the door of the said rooms because the tenants were in occupation of the same. So, by producing Exts.C1 and C2, the respondent/ landlord has succeeded in establishing that no other rooms are available near by his shop room for the purpose of expanding his business. Admittedly, the petition schedule room is adjacent to the room occupied by the landlord and he is running **RCRev..No. 30 of 2019** 12 the business of chappels. These facts were admitted by the appellant/tenant also. Now the appellant has raised a contention that the respondent could be able to start the business in other rooms and this particular room is not sufficient enough to conduct the intended business. 7. In _**Pazhancheri Krishnadas v. Parambath Velayudhan Nair (2014 (2) KLT 539)**_ , it has held that “the tenant cannot dictate to the landlord that he should make the application for eviction of only the adjacent room and not a room farther from the room in the occupation of the landlord in order to find his claim under Section 11(8)”. 8. The learned counsel has also cited a ruling held in S _**ait Nagee Purushotham and Co. Ltd. v. Vimalabai prabhulal [2005 (8) SCC 252]**_ wherein the Apex Court has held that “it is always the **RCRev..No. 30 of 2019** 13 prerogative of the landlord to seek eviction if he requires the premises in question for his _bona fide_ use for expansion of business and there is no ground to say that the landlords are already having their business at Chennai and Hyderabad and therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business”. 9. Even though there was an attempt on the part of appellant that other vacant rooms are available there, but he failed to succeed in proving the same. It is also proved by the respondent that he is doing the business of chappal in a room situated near to the petition schedule room and he requires the petition schedule room for the expansion of the business. Merely because another room situates in between **RCRev..No. 30 of 2019** 14 those two rooms is not a sufficient ground to come to a conclusion that the petition schedule room is not the proper room for expansion of his business. On relying the evidence of PW1 that he requires the petition schedule room for his additional accommodation and it is a _bona fide_ claim, the court below held that the respondent has succeeded in establishing the claim, as prayed for. 10. The appellant has registered a case that if he is evicted from the room, hardship will be caused to him. It is true that the appellant is conducting a mobile shop in the petition schedule room and the income from the business is the only means of his livelihood and if he is evicted from the building, his family will be suffered. On the other hand, the respondent has taken a contention that the appellant is not doing any business in the petition schedule shop room. Instead of that he has sublet the room. So, the **RCRev..No. 30 of 2019** 15 burden is heavy on the appellant to establish that he has been conducting mobile business in the petition schedule shop room and he has been getting income in that business. But, he could not able to produce a single scrap of paper to establish that he is conducting a business on mobiles in the petition schedule shop room or he is getting income from the same. He has not produced the receipt of the bill in support of his claim. Except oral evidence of the appellant, no other documents were produced to establish that he is fully depending upon the business which is being held in the petition schedule shop room. There is absolutely no evidence to show that the appellant is conducting a business on mobile shop and getting a considerable income from his business. Hence, it is very easy to draw presumption to the effect that if he is evicted from the petition schedule shop room, no hardship will be caused to him. On the basis of that the lower court **RCRev..No. 30 of 2019** 16 held that the appellant is not entitled to get the benefit of the proviso to Section 11(10) of the Act. 11. On analysing the entire evidence, we do not find any kind of illegality or perversity in the findings entered by the court below as well as the appellate authority and do not call for any interference under the revisional jurisdiction contemplated under Section 20 of the Act. Therefore, this revision petition fails and it is only to be dismissed. At this juncture, the learned counsel appearing for the revision petitioner seeks one year time to vacate the tenanted premises. 12. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given seven months' time to vacate the petition schedule building, on the following conditions: - _(1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date_ **RCRev..No. 30 of 2019** 17 _of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within seven months from today._ - _(2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default._ - _(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent /landlord will be at liberty to proceed with the execution of the eviction order._ Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM