Prof. M. Usman v. C.C.O.P Kunhami, C.C.O.P Muhammad Ali, C.C.O.P Fousiya, C.C.O.P Zuhara, Muneer and Winson Bags (R.C.Rev.No.101/2019)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS.JUSTICE SHOBA ANNAMMA EAPEN** **TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944** **RCREV.NO.101 OF 2019** **AGAINST THE ORDER/JUDGMENT IN RCP NO.43/2009 OF MUNSIFF** **COURT, THALASSERY** **RCA NO.276/2010 OF ADDITIONAL DISTRICT COURT & SESSIONS** **COURT - IV, THALASSERY** ## **REVISION PETITIONER/S:** **PROF. M.USMAN, AGED 62 YEARS,** **S/O.MOIDEEN, ORBIT ELECTRONIC AND ELECTRICALS, OLD BUS STAND, THALASSERY, KANNUR DISTRICT.** **BY ADV. ASHWIN SATHYANATH** ## **RESPONDENT/S:** - 1 **C.C.O.P. KUNHAMI, AGED 56 YEARS, D/O.BEEBI, C.C.O.P.HOUSE, MAIN ROAD, THALASSERY, KANNUR DISTRICT, PIN-670101.** - 2 **C.C.O.P.MUHAMMAD ALI, AGED 54 YEARS S/O.BEEBI, C.C.O.P.HOUSE, MAIN ROAD, THALASSERY, KANNUR DISTRICT, PIN-670101.** - 3 **C.C.O.P.FOUSIYA, AGED 39 YEARS, D/O.BEEBI, C.C.O.P. HOUSE, MAIN ROAD, THALASSERY, KANNUR DISTRICT, PIN-670101.** - 4 **C.C.O.P. ZUHARA, D/O.BEEBI, AGED 47 YEARS, C.C.O.P. HOUSE, MAIN ROAD, THALASSERY, KANNUR DISTRICT, PIN-670101.** - 5 **MUNEER, WINSON BAGS, O.V.ROAD, THALASSERY, KANNUR DISTRICT, PIN-670101.** ## **BY ADV SHRI.ESM.KABEER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.No.101/2019 2 ## **JUDGMENT** ## **A.Muhamed Mustaque, J** . This revision is at the instance of the tenant. The tenant, a retired professor, challenges an order of eviction under Sections 11(3) and 11(4) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act). 2. The respondents filed a petition for eviction under Sections 11(2), 11(3), 11(4)(i) and 11(4)(iii) of the Act. The Rent Controller allowed the eviction petition under Sections 11(3) and 11(4)(i) and 11(4)(iii). Challenging the same, the tenant approached the Rent Control Appellate Authority in an appeal. In the appeal, the order under Section 11(4)(iii) was set aside. Accordingly, the order under Sections 11(3) and 11 4(i) was confirmed. Challenging the concurrent findings under Sections 11(3) and 11(4) (i), the tenant has come R.C.Rev.No.101/2019 3 up with this Rent Control Revision. 3. We heard the learned counsel for the revision petitioner, Sri.Ashwin Sathyanath and the learned counsel for the respondents, Sri.ESM Kabeer. 4. The learned counsel for the revision petitioners assailing the impugned order, submitted that though the need was projected on behalf of the second respondent herein, nothing has been mentioned in the petition for eviction as to the projected proposed business. It is submitted that except mentioning that the second respondent wants to conduct an agency business, no other details were provided in the Rent Control Petition to substantiate the ground of eviction on the ground of _bona fide_ . 5. The learned counsel placed reliance on the judgment of this Court in **Nazar v. K.P.Naseema [2017 (4) KHC 936]** , wherein this Court interfered R.C.Rev.No.101/2019 4 with the concurrent findings under Section 11(3) of the Act for want of pleading as to the need projected on behalf of the landlords. The learned counsel further submitted that the finding under Section 11(4) (i) of the Act on the ground of sublease is perverse and illegal for the simple reason that these findings have been made, overlooking Ext.B1 series of documents produced to show that the alleged sub-tenant was an employee of the tenant. 6. According to the learned counsel for the respondents/landlords, the second respondent while being examined in the box had stated about the nature of the business and no prejudice has been caused to the tenant for not providing details of such business in the petition. It is further submitted that the sub-tenant is running a bag business in the tenanted premises and he is also having another bag business in the same R.C.Rev.No.101/2019 5 locality. It is further submitted that it is impossible for a tenant to engage a person as an employee who is having the same business in the locality. 7. We have perused the judgment in **Nazar** 's case ( _supra)_ . In that, a Division Bench of this Court held that when the landlords failed to provide the details of the business proposed in the tenanted premises on the claim under _bona fide_ need, that would be fatal as the tenant will be deprived of proper defence in such a matter. We are cautioned at the outset in following precedents in a matter like this. Every case related to _bona fide_ will have to be decided on the facts of particular case. The appreciation that requires in each case would vary, from case to case and would depend upon the facts. Here is a case where the landlords had specifically pleaded the requirement of the building for the R.C.Rev.No.101/2019 6 purpose of starting an agency business for the second respondent. The precise nature of the business is not mentioned in the petition, which cannot be fatal for the petition for eviction under Section 11(3) of the Act. The second respondent has spoken while in the box that he requires this building for starting an agency business in tea. The test to be determined in such circumstances is whether the need to occupy the building is _bona fide_ or not. If the agency business is possible in tea, merely because the precise nature of the business was not mentioned in the pleadings cannot be a reason for denying the eviction on the ground of _bona fide_ need. Nothing has been brought out to discredit the need of the landlords as _mala fide_ . We, therefore, are of the view that the concurrent finding by the Rent Controller and the Appellate Authority upholding the _bona fide_ need is not ## R.C.Rev.No.101/2019 7 perverse. It is to be noted that both courts found that the tenant was not entitled to the second proviso to Section 11(3) as well. 8. Coming back to the eviction order under Section 11(4)(i) of the Act, it is true that Ext.B1 series produced by the tenant would show that the second respondent was an employee. However, it is to be noted that the business being carried on in the tenanted premises is a bag business. The second respondent is conducting bag business along with his father in another shop in the same locality. It is quite impossible for the tenant to engage another person as an employee who is engaged in the same business in the same locality. The probability of the case would show that the building was let out to the second respondent to carry on the same business which he carries along with his father in another room in the locality. Merely for the R.C.Rev.No.101/2019 8 reason that his name has been shown as an employee in the public records does not mean that he is an employee. The decisive factor is the exclusive possession of the room by a person alleged to be a sub-tenant. The tenant is having another business in the locality along with other partners. It is in that background that the facts and evidence will have to be appreciated. Apart from public records reflecting the name of the sub-tenant as an employee, no other documents have been produced to show the existence of employer-employee relationship. When it is shown that somebody is in exclusive possession other than the tenant, the burden falls on the tenant proves the nature of the relationship with the third party. When the exclusive possession is parted away with, the cause of action would arise to the landlords to the claim of eviction on the ground of sub-lease. The facts appreciated by ## R.C.Rev.No.101/2019 9 both authorities, according to us, were in the right perspective and warrant no interference. Based on the discussion, we dismiss the revision petition. However, we grant six months' time to the tenant to surrender the building on the following terms and conditions: The revision petitioner shall file an undertaking before the Rent Controller/Execution Court that he will vacate the building within the time granted by this court. He shall clear the arrears of rent within one month and continue to pay future rent till he vacates the building. ## **Sd/-** ## **A.MUHAMED MUSTAQUE,** ## **JUDGE** **Sd/SHOBA ANNAMMA EAPEN,** **JUDGE** ln