Poyil Mammad and M.V. Abdul Rahiman v. K.P. Padmini and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940** **R.C.R.No. 229 of 2018** **AGAINST THE JUDGMENT IN RCA 271/2016 of THE RENT CONTROL APPELLATE AUTHORITY/ ADDL. DISTRICT JUDGE, VATAKARA DATED 13-03-2018** **AGAINST THE ORDER IN RCP 2/2014 of THE RENT CONTROLLER/ MUNSIFF COURT, VATAKARA DATED 20-09-2016** **REVISION PETITIONERS/ APPELLANTS IN RCA/ RESPONDENTS 1 & 2 IN RCP :** **-------------------------------------------------------------------** **1 POYIL MAMMAD, S/O.AHAMMAD MUSLIYAR, AGED 69,'SIYAD',** **MEMUNDA AMSOM,DESOM, VATAKARA TALUK.** - **2 M.V.ABDUL RAHIMAN, S/O.MAMMU,AGED 66, 'A1-RIYAS',MEMUNDA AMSOM, DESOM, VATAKARA TALUK.** **BY ADVS.SRI.N.AJITH** **SRI.M.K.SADANANDAN (VATAKARA) SMT.V.SANDHYA VIJAYAN** **RESPONDENTS/ RESPONDENTS IN RCA/ PETITIONERS & R3 IN RCP :** **---------------------------------------------------------** **1. K.P.PADMINI, W/O.RAVEENDRAN, AGED 69, VALIYA VALAPPIL, VATAKARA AMSOM DESOM, VATAKARA TALUK – 673 101.** **2. K.P.PADMAJA,** **D/O.RAVEENDRAN, AGED 49 VALIYA VALAPPIL, VATAKARA AMSOM DESOM, VATAKARA TALUK – 673 101.** **3. CHITRALEKHA, D/O.RAVEENDRAN, AGED 48, VALIYA VALAPPIL, VATAKARA AMSOM DESOM, VATAKARA TALUK – 673 101.** **4. BIJU, S/O.REVEENDRAN, AGED 46, VALIYA VALAPPIL, VATAKARA AMSOM DESOM, VATAKARA TALUK – 673 101.** **5. SHAJI, S/O.RAVEENDRAN, AGED 42, VALIYA VALAPPIL, VATAKARA AMSOM DESOM, VATAKARA TALUK - 673 101.** **6. MOOSA.M.P.K, S/O.MAMMI, AGED 58, AUTOMOBILE ACCESSORIES BUSINESS, SHOP NO.VM29/142D, 142 E, OPP.ASHA HOSPITAL, VATAKARA AMSOM DESOM, VARAKARA TALUK – 673 101.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23-07-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RKM** ## **K. HARILAL & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **R.C.R.No. 229 of 2018** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 23[rd] day of July, 2018** ## **ORDER** ## _**K. Harilal, J.**_ The revision petitioners are the appellants in R.C.A.No.271/2016 of the Rent Control Appellate Authority, Vadakara as well as the respondents/ tenants in R.C.P.No.2/2014 of the Rent Control Court, Vadakara. This revision petition has been filed challenging the concurrent findings of the courts below whereby an order of eviction has been passed against them under Section 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act'). 2. The parties are referred to as in the rent control petition. According to the petitioners, the petition schedule building owned by them was in occupation of the first respondent under the lease agreement and the rent from February, 2013 is in arrears. Though he had sent a notice requiring the payment of arrears of rent, the rent was not paid. Therefore, he is entitled to get an order of eviction under Section 11(2)(b) of the Act. The 4[th] petitioner in the R.C.P. bonafide needs the petition schedule building for conducting a car air-conditioning service centre. The R.C.R.No. 229 of 2018 2 landlords have no other buildings of their own to carry on the aforesaid business. The respondents are not depending upon the income derived from the business carried on in the petition schedule building and several other vacant buildings are available in the locality. Thirdly, according to the petitioners, the first respondent has sub-leased the petition schedule building to the 3[rd] respondent and now the 3[rd] respondent is carrying on business in the petition schedule shop room. Though he had issued a notice to terminate the transfer of possession to the 3[rd] respondent, the respondents have not done so. Therefore, the petitioners are entitled to get an order of eviction under Section 11(4)(i) of the Act also. 3. The respondents filed a counter statement denying all the allegations levelled against them in the Rent Control Petition. According to the respondents, they have paid the rent up to March, 2014 by depositing in court and at present, there is no arrears. The need projected in the petition is not bonafide and it is a ruse for eviction only. The petitioners are in possession of suitable other rooms for conducting the car air-conditioning service centre. So also, the 4[th] petitioner is carrying on the said trade with the name and style "Denbo AC”, R.C.R.No. 229 of 2018 3 in one of the rooms in the ground floor of the building. They emphatically denied the sub-lease alleged against them. According to the respondents, after the lease, they entered into a Partnership Deed on 05.01.2010 along with Mr.Jabir Malal and Mr.A.K.Abdul Hameed Haji and now the partnership firm is conducting the business by name 'Fareeda Auto Shop' in the petition schedule building. Mr. Jabir is the managing partner of the firm. He is a physically handicapped person by birth. He has been advised to take complete rest. In that situation, a friend of Mr.Jabir, who is also having similar business in the nearby shop, is helping Mr. Jabir and the original tenants are carrying on the business under the partnership firm in the petition schedule shop room. According to them, they are not in possession of any other buildings as alleged in the petition and they are mainly depending upon the income derived from the business carried on in the petition schedule shop room. No other buildings are available in the locality to shift their business. 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the rent was in arrears R.C.R.No. 229 of 2018 4 from February 2013 onwards. The need projected in the petition is bonafide and the petitioners have succeeded in proving that the petition schedule shop room was transferred to the 3[rd] respondent without the consent of the petitioners and thereby they have sub-leased the petition schedule shop room to the 3[rd] respondent. The legality and propriety of the aforesaid findings are challenged in this revision petition. 5. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents. 6. Being a revision filed under Section 20 of the Act, this Court is not inclined to re-appreciate the entire evidence on record as the scope and extent of interference under Section 20 of the Act is confined to legality, propriety and regularity of the findings of the courts below only. Here, the findings of the courts below are concurrent. The sum and substance of the argument advanced by the learned counsel for the revision petitioners is that the courts below have failed to appreciate the evidence on record in its correct perspective. As regards the order of eviction under Section 11(2)(b) is concerned, admittedly, the rent was in arrears from February, 2013 and the respondents have deposited the rent up to R.C.R.No. 229 of 2018 5 March, 2014 in court after the institution of the Rent Control Petition. It is needless to say, they did not pay the arrears of rent as required under the notice issued by the petitioners to them under Section 11(2)(b) of the Act, within 15 days from the date of receipt of the notice. Therefore, the courts below are justified in passing an order of eviction under Section 11(2)(b) of the Act. We do not find any reason to interfere with the said findings. 7. Coming to the order of eviction under Section 11(3) of the Act, according to the petitioners, the 4[th] petitioner bonafide needs the petition schedule building for starting a car air-conditioning service centre. In the Rent Control Petition, they have admitted that they are in vacant possession of the rooms in the first floor. But the same is not suitable for conducting the said air-conditioning service centre. In Ext.C1 report, the Commissioner has stated that the vacant rooms available in the first floor of the building is not suitable for conducting an air-conditioning service centre as there is no motorable access to the first floor. It is a matter of common knowledge that an air-conditioning service centre can be conducted in a place where there is motorable access only. R.C.R.No. 229 of 2018 6 In order to prove the bonafide of the need, the 4[th] petitioner, for whose need the petition schedule building was required, was examined as PW1 and he has spoken in tune with the need projected in the Rent Control Petition and the courts below concurrently found that nothing has been brought out in cross examination to disbelieve or discredit his evidence. The courts below have placed reliance on the evidence of PW1. We do not find any reason to take a different view. 8. As regards the first proviso, it has come out in evidence that though the petitioners are in vacant possession of the first floor of the building, those rooms are not suitable for conducting the car air-conditioning service centre due to the lack of motorable access. Therefore, the courts below are justified in finding that the Rent Control Petition is not hit by the first proviso to Section 11(3) of the Act. Coming to the 2[nd] proviso to Section 11(3), it is needless to say the burden of proof is on the tenants. But, no evidence has been adduced to prove that the respondents are depending on the income derived from the business carried on in the petition schedule shop room. This Court in _**Shahul Hameed v. Abdu Razak [2016(5) KHC 820]**_ held that the tenant, who is hiding his R.C.R.No. 229 of 2018 7 income from the court is not entitled to get protection under the Ist limb of IInd proviso to Section 11(3) of the Act as the income is a fact within the special knowledge of the tenant only. In the absence of any evidence to prove the income from the business in the petition schedule shop room, the courts below are justified in finding that the respondents are not entitled to get protection under the first limb of the first proviso. No evidence has been adduced to prove the contention that no other buildings are available in the locality to shift the business from the petition schedule shop room. No application was filed to appoint a commission to ascertain the non-availability of the buildings in the locality. In the absence of evidence to prove the non-availability of the other vacant buildings in the locality, the courts below are justified in finding that the respondents are not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. 9. Coming to the order of eviction under Section 11(4)(i) of the Act, the presence of the 3[rd] respondent, a stranger to the lease arrangement in the petition schedule building is admitted by the respondents themselves. The commissioner has reported in Ext.C1 report that when he R.C.R.No. 229 of 2018 8 inspected the tenanted premises, the alleged sub-tenant was found carrying on business. He was found sitting in the cashier's counter. It follows that the petitioners have discharged the initial burden of proof. Therefore, the burden of proof shifted to the tenant to prove the reasons for the presence of the stranger in the tenanted premises for the business activity. According to the respondents, RW2 is the managing partner, under Ext.B1 Partnership Deed and he is a physically disabled person. Therefore, the service of the alleged sub-tenant was required to help RW2. RW2 also deposed that the alleged sub-tenant is helping him in conducting the trade. But, surprisingly, it has come out in evidence that the alleged sub-tenant is a person, who is conducting similar business in another premises, very near to the petition schedule shop room. There was no answer to the question why the business was entrusted to the alleged sub-tenant, who is none other than a competitor of the same trade in the very close premises. There was no reasonable explanation for the same. As rightly observed by the courts below, one would fail to understand why any other partners were not entrusted with the trade, while RW2 was a medically R.C.R.No. 229 of 2018 9 unfit person. As rightly observed by the courts below, the case of the respondents that the 3[rd] respondent was employed to aid RW2, cannot be believed as there is no possibility to seek the service of a competitor of the same business, for conducting the business in the petition schedule shop room. Therefore, it can be safely concluded that the respondents have miserably failed to give a reasonable explanation for the presence of the alleged sub-tenant for carrying on business in the petition schedule shop room. 10. That apart, RW2 has admitted that they are in possession of the purchase bills, sales bills, bank statement etc. to prove that the business is being conducted by the partnership firm. But, no document had been produced to prove that the business is carrying on by the partnership firm. An adverse inference also can be drawn under Section 114(g) of the Evidence Act against the respondents herein. Thus, the non-production of those vital documents also would support the case of the landlords that the alleged sub-tenant is conducting the business. Thus, the courts below are justified in granting an order of eviction under Section 11(4)(i) of the Act also. 11. Thus, on an evaluation of the concurrent R.C.R.No. 229 of 2018 10 findings of the courts below, we find that there is no illegality or impropriety in the concurrent findings of the courts below and the courts below have appreciated the evidence on record in its correct perspective. We do not find any kind of perversity in the appreciation of evidence. In the above view, this revision control revision petition fails and is dismissed accordingly. The learned counsel for the revision petitioners/ tenants prayed for sometime to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioners/ tenants are given ten months' time from today to vacate the tenanted premises on the following conditions :- 1. The revision petitioners/ tenants shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of the copy of this order. 2. The revision petitioners/ tenants shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of ten months' from today. 3. The affidavit shall be filed before the executing R.C.R.No. 229 of 2018 11 court within a period of three weeks from the date of receipt of the copy of this order. 4. In case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondents/ landlords are entitled to enforce the order. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM