P.M. Mohamed Ashraf v. K.P. Hamzakutty Haji

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938** ## **RCRev..No. 177 of 2016 ()** **-------------------------IN RCA 117/2012 of ADDL. DISTRICT COURT - III, THALASSERY DATED 09.10.2015 IN RCP 65/2011 of PRL.M.C.,KANNUR DATED 31.03.2012 ------------------------------------------------------** **REVISION PETITIONER(S)/APPELLANT/RESPONDENT :-: ----------------------------------------------------------------------------------** **P.M.MOHAMED ASHRAF, S/O.ABDUL RAHMAN K.P., AGED 51 YEARS, PROPRIETOR, OSCAR LODGE, SOUTH BAZAR, KANNUR - 2.** **BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI SRI.D.PREM KAMATH** **RESPONDENT(S)/RESPONDENTS/PETITIONERS:-: ----------------------------------------** ## **1. K.P.HAMZAKUTTY HAJI,** **S/O.ABOOBACKER, AGED 59 YEARS, RESIDING AT KHADEEJA MANZIL, PAMBURITHI ROAD, P.O.NARATH, KANNUR - 670 601.** ## **2. K.P.MARIYAM,** **AGED 44 YEARS, D/O.ABOOBACKER, MASNA'S, T.C.GATE ROAD, NARATH, KANNUR - 670 601.** ## **3. K.P.ABDUL JABBAR,** **S/O.ABOOBACKER, AGED 48 YEARS, RESIDING AT FATHIMA MANZIL, T.C.GATE, P.O.NARATH, KANNUR - 670 601, NOW RESIDING AT DAMAM, SAUDI ARABIA.** **-2-** **-2-** ## **RCRev..No. 177 of 2016 ()** ## **------------------------------------** **(RESPONDENTS NO.2 & 3 THROUGH POWER OF ATTORNEY HOLDER K.P.HAMZAKUTTY HAJI, S/O.ABOOBACKER, AGED 59 YEARS, RESIDING AT KHADEEJA MANZIL, PAMBURITHI ROAD, P.O.NARATH, KANNUR DISTRICT).** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VS** ## K.SURENDRA MOHAN & MARY JOSEPH, JJ. ---------------------------------------- ## R.C.R. No.177 of 2016 ----------------------------------------- Dated this the 6[th] day of June, 2016 ## ORDER ## K.SURENDRA MOHAN, J. The tenant is in revision before us, challenging concurrent orders of the Rent Control Court (Prl Munsiff), Kannur in R.C.P.No.65/2011, confirmed by the Rent Control Appellate Authority (Addl District Court-III), Thalassery in R.C.A.No.117/2012. 2. The tenant is in occupation of the petition scheduled premises, comprising of 24 rooms, from which he is conducting a lodge by named 'Oscar Residency'. The respondents are the landlords and co-owners of the building. The respondents sought vacant possession of the building for them to start a lodging business, which the first respondent would manage. Respondents 2 and 3 are working in Gulf. Only R.C.R. No.177 of 2016 -2- the first respondent is available in India. 3. The need of the landlords was disputed by the tenant. It was contended that the building was originally owned by some other person. The respondents had purchased the building only in the year 2008. Immediately after the purchase, they started efforts to get vacant possession thereof. A number of cases are pending between the parties. An earlier Rent Control Petition was dismissed. According to the tenant, the proceedings have been initiated immediately after the statutory period pursuant to the purchase, had expired. The need is projected only to get vacant possession of the building. The tenant also claimed protection of the Second Proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control Court) Act, 1965 (hereinafter referred to as 'the Act' for short). 4. The Rent Control Court considered the respective contentions after letting in evidence. On the side of the landlords, Exts.A1 to A4 documents were marked and the first R.C.R. No.177 of 2016 -3- respondent was examined as PW1. The tenant produced and marked Exts.B1 to B5 documents and examined himself as RW1. 5. On a consideration of the evidence on record, the Rent Control Court found that the need that was put forward was bonafide, that the tenant had not succeeded in proving the two ingredients under the Second Proviso to Section 11(3) of the Act and therefore the landlords were found to be entitled to an order of eviction. Though the tenant had challenged the order of eviction before the Rent Control Appellate Authority, the appeal has been dismissed, confirming the order of eviction. 6. According to K.R.Avinash, who appears for the revision petitioner/tenant, both the authorities below have omitted to consider whether the need that was put forward was bonafide or reasonable or genuine. Such an enquiry is absolutely essential before entering into a finding that the need put forward was bonafide. The counsel also places R.C.R. No.177 of 2016 -4- reliance on the decision of the Apex Court in Kempaiah v. Lingaiah and Others reported in 2001 (8) SCC 718, in support of his contention. The fact that the landlords were claiming possession of all the 24 rooms, alleging that they wanted to conduct a similar lodging business itself is malafide, according to the learned counsel. Such a need has been conveniently projected to see that the tenant was evicted. Strong exception is taken to the manner in which the authorities below have denied the benefit of the Second Proviso to Section 11(3) to the tenant. It is contended that, since the landlords had no case that the tenant has any other source of income, it ought to have been found that income from the lodging business was the only source of income for the tenant. Though vacant spaces in other buildings have been pointed out by the landlords, no space capable of being converted into a lodging house of 24 rooms was pointed out. In the absence of any such facility being available, the counsel contends that the benefit of the proviso ought to have been extended to the R.C.R. No.177 of 2016 -5- tenant. ## 7. Heard. 8. This revision comes up before us for admission. We have gone through the judgment of the Appellate Authority as well as the order of the Rent Control court. Both the authorities below have found that the need put forward was bonafide. The evidence of PW1 has been believed describing him as a truthful witness. Nothing has been brought to our notice to justify a different view of the matter. The question of bonafide need is a question of fact and the Appellate Authority being the final court on facts, it is not open to the petitioner to assail the said finding in revision. Reliance is placed by the learned counsel for the petitioner on the decision referred to above, to contend that the authorities ought to have examined whether the need put forward was reasonable or genuine. In the present case, both the authorities below have noticed that two of the owners of the building are working abroad while one of them is available in the country. Their need to start a R.C.R. No.177 of 2016 -6- lodging business of their own cannot be found fault with. The first respondent would manage the business. The above aspects have been accepted as genuine and reasonable by both the authorities. We do not found any grounds to upset the said findings. 9. With respect to the benefit of the Second Proviso to Section 11(3), it is settled law that the burden to prove both the ingredients thereof is squarely on the tenant in the present case; Absolutely no evidence has been adduced to justify the conclusion that the income from the business carried on in the tenanted premises is the only source of livelihood for the tenant. The landlord had taken steps to bring out to record the fact that other vacant possession are available in the locality. It is contended that, no space sufficient to accommodate the business of the lodging house conducted from 24 rooms has been pointed out. It is trite that, the vacant buildings available need not be of the same dimensions and of the same convenience as the tenanted premises. It is R.C.R. No.177 of 2016 -7- sufficient that the vacant buildings pointed out are reasonably sufficient for the purpose of conducting lodging business. In the absence of any evidence, attracting the applicability of the second proviso to Section 11(3) of the Act, we find no grounds to interfere with the said findings also. 10. The result of the above discussion is that, the Rent Control Petition is liable to be dismissed. 11. As a last submission, the counsel for the petitioner sought for the grant of some time to surrender vacant possession of the premises. Having heard the counsel, we are satisfied that, it is necessary to grant time to the petitioner up to 31.12.2016, but subject to conditions. 12. In the result, this Rent Control Revision is ordered as follows: (i) This Rent Control Revision fails and is accordingly dismissed. (ii) The revision petitioner is granted time up to 31.12.2016 to surrender vacant possession of the premises to R.C.R. No.177 of 2016 -8- the landlords, on condition that he files an affidavit before the Principal Munsiff's Court, Kannur in E.P.No.294/2012 in R.C.P.No.65/2011 within a period of two weeks of the date of receipt of a copy of this judgment, unconditionally undertaking to surrender vacant possession of the tenanted premises to the landlord on or before 31.12.2016. It shall be a further condition for the grant of such time that the petitioner pays off the arrears of rent, if any, remaining unpaid and continues to pay rent in respect of the premises regularly and without any default until vacant possession is surrendered. Any default in complying with any of the above conditions would result in forfeiture of the benefit of the above directions. Sd/- K.SURENDRA MOHAN, JUDGE vs Sd/MARY JOSEPH, JUDGE /TRUE COPY/ PA TO JUDGE