PUNNAVALAPPIL NARAYANI, PUNNAVALAPPIL PREMAN, PUNNAVALAPPIL PRASANTH, PUNNAVALAPPIL PRAKASAN, PUNNAVALAPPIL USHA, PUNNAVALAPPIL VINOD v MEHABOOB NARANGOLI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938** **RCRev..No. 335 of 2015 () -------------------------AGAINST RCA 86/2014 of RENT CONTROL APPELLATE AUTHORITY (I ADDL.DISTRICT COURT, KOZHIKODE DATED 07-10-2015** **AGAINST RCP 42/2012 of RENT CONTROL/MUNSIFF COURT, KOYILANDY DATED 31-03-2014** **REVISION PETITIONERS/APPELLANTS & 2ND RESPONDENT/RESPONDENTS:** **--------------------------------------------------------------** ## **1. PUNNAVALAPPIL NARAYANI** **D/O.CHANDU, GED 73 YEARS, RESIDING AT KOZHIKKALATHIL, PANTHALAYANI VILLAGE, KURUVANGAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT** ## **2. PUNNAVALAPPIL PREMAN** **AGED 53 YEARS, S/O.KUMARAN, RESIDING AT PUTHIYOTTILTHAZHAKUNI, ANELA ROAD, PANTHALAYANI VILLAGE, KURUVANGAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT** ## **3. PUNNAVALAPPIL PRASANTH** **AGED 49 YEARS, S/O.KUMARAN, RESIDING AT KOZHIKKALATHIL, PANTHALAYANI VILLAGE, KURUVANGAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT** ## **4. PUNNAVALAPPIL PRAKASAN** **AGED 46 YEARS, S/O.KUMARAN, RESIDING AT KOZHIKKALATHIL, PANTHALAYANI VILLAGE, KURUVANGAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT** **5. PUNNAVALAPPIL USHA** **AGED 44 YEARS, D/O.KUMARAN, RESIDING AT KOZHIKKALATHIL, PANTHALAYANI VILLAGE, KURUVANGAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT** **6. PUNNAVALAPPIL VINOD AGED 53 YEARS, S/O.KUMARAN, RESIDING AT PUTHOYOTTILTHAZHAKUNI, ANELA ROAD, PANTHALAYANI VILLAGE, KURUVANGAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU** **RESPONDENT/1ST RESPONDENT/PETITIONER:** **----------------------------------------** **MEHABOOB NARANGOLI AGED 48 YEARS, S/O.USMAN ABOBACKER, RESIDING AT AYISHA HOUSE, PANTHALAYANI VILLAGE, PERUVATTOOR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 673620, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, USMAN ABOOBACKER, S/O.ABOOBACKER, AGED 80 YEARS, RESIDING AT AYISHA HOUSE, PANTHALAYANI VILLAGE, PERUVATTOOR DESOM, KOYILANDIY TALUK, KOZHIKODE DISTRICT, PIN 673620** **R1 BY ADV. SRI.V.V.SURENDRAN R1 BY ADV. SRI.P.A.HARISH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 0903-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VPS** **K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. --------------------------------------** **R.C.R. No.335 of 2015 ---------------------------------------Dated this the 9th day of March, 2017** ## **O R D E R** **-------------** ## _**Harilal, J.**_ - 1.The revision petitioners herein/respondents are tenants who suffered order of eviction passed by the Rent Control Court under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for brevity), which stands confirmed by the Appellate Authority in the appeal preferred by them. The parties are referred to as in the original Rent Control Petition. - 2.The Rent Control Petition was filed under section 11(2)(b), 11 - (3) and 11(4)(ii) of the Act. After considering the evidence on record, the Rent Control Court rejected the claim of eviction under section 11(2)(b) and 11(4)(ii); but passed an order of eviction under section 11(3) of the Act. In the appeal filed by them, the Appellate Authority also confirmed the said findings. R.C.R. No.335/2015 2 Thus, the legality and propriety of the concurrent findings, whereby the courts below passed the order of eviction under section 11(3) of the Act, have come up in this revision for its scrutiny under section 20 of the Act. - 3.According to the petitioner/respondent, he needs the petition schedule building for the purpose of starting a business by his brother-in-law, Muhammedali, who has no job or avocation. He is not in vacant possession of any other suitable building in the same locality to start the business. The respondents/revision petitioners herein are not depending upon the business conducted in the petition schedule building and several vacant rooms are available in the locality for shifting their business from the petition schedule building. - 4.The respondents contended that the need put forward by the petitioner is not a bona fide one and the averments that the petitioner's brother-in-law Muhammedali has no job or avocation is not correct, as he is employed abroad and there is no need to start a business for him. The petitioner is financially very sound and affluent person. He has so many buildings in the locality and several buildings are remaining R.C.R. No.335/2015 3 vacant for starting the hotel business. The petitioner is having properties worth crores and the petitioner and his father are now conducting a hotel business at London. The respondents are mainly depending upon the income derived from the hotel business conducted in the petition schedule building for their livelihood and that no other buildings are available in the locality to shift their business. With the above contentions, they prayed for dismissal of the petition. - 5.The evidence available on record consists of oral testimony of PW1, RW1, Exts.A1 to A3(b), B1 to B4 and C1 to C4. - 6.Heard the learned counsel appearing for the petitioner and the respondents. - 7.Though this revision petition has been filed on various grounds, the learned counsel for the respondents mainly focused his argument on two points. Firstly, it is contended that the brother-in-law of the petitioner cannot be deemed to be a member of the family of the petitioner who is depending upon the petitioner for the building. Secondly, it is vehemently contended that the respondents have succeeded in proving that the petitioner has another building of his own in his possession R.C.R. No.335/2015 4 - in the same locality. But the petitioner miserably failed to satisfy the Rent Control Court by giving sufficient reasons for not occupying those buildings and thus, the bona fide need put forward by the petitioner is hit by the first proviso to section 11 (3) of the Act. - 8.The learned counsel appearing for the petitioner advanced arguments to justify the concurrent findings with respect to the dependency of the brother-in-law, for whose requirement the respondents were sought to be evicted, from the petition schedule shop room. - 9.It is the case of the petitioner that his brother-in-law was employed abroad and now he has returned back and thereafter he has no job or any kind of avocation for his livelihood. Even though the respondents have contended that he was working abroad, no evidence has been adduced to substantiate the said contention. The brother-in law, for whose requirement the eviction was sought for, was examined as PW1 and he has given evidence to the effect that he has returned back from Gulf Country and thereafter he has no job or any kind of avocation for his livelihood and he is depending upon the R.C.R. No.335/2015 5 - petitioner for the petition schedule shop room to start a hotel business. - 10.We have meticulously gone through the cross-examination of - PW1. Even though he was cross-examined at length nothing was brought out to disbelieve his oral assertion that he has no job or any kind of avocation for his livelihood. So also, no documentary evidence was produced by the respondents to show that he has any kind of job or avocation for his livelihood. Therefore, the courts below are justified in finding that the need put forward by PW1 is a bona fide one. Consequently, there is no reason to interfere with those findings. - 11.Coming to the question whether PW1, being the brother-inlaw of the petitioner, would be deemed to be a member of the family depending upon the petitioner for the petition schedule shop room, this question is seen elaborately considered and settled by a Full Bench of this Court in **Raghavan v. Kelappan** (2006 (1) KLT 1) wherein it was held in paragraphs 8 to 11 as follows:- _“8. The expression used in S.11(3) of the Kerala Act is also "own occupation". Therefore the occupation of a member of the family dependant on the landlord may also in a given case would fall within the expression "for_ R.C.R. No.335/2015 6 _his own occupation". We have already indicated, the question as to whether the requirement of a dependant of a family would be the requirement of the landlord himself and would fall within the expression "for his own occupation" would depend upon variety of factors such as inter relationship and inter dependence, economic or otherwise in the background of social, socio religious and local customs and obligations of the society or region to which they belong and other of other circumstances._ _9. We have to examine the facts of the case bearing in mind the above mentioned legal principles. Petitioners have proved that third petitioner has married an orphan girl and he is now employed abroad. Facts would indicate that before he left India he was engaged in the work of electric wiring and third petitioner's brother inlaw was assisting him in that work and gained experience. Petitioners including third petitioner wanted to see that his brother inlaw be settled down in life. He was discharged from an orphanage at Thalassery in the year 1985. Facts would indicate that third petitioner has married sister of P.W. 2, for whom the building is required. Requirement of the landlord's wife is also requirement of the landlord. Third petitioner's wife was also an orphan and the building is required for the third petitioner's wife's brother, who was assisting third petitioner while he was in India. Brother inlaw was depending upon the third petitioner and it is the bona fide need of the third petitioner himself that his dependant brother in law be accommodated in his building._ _10. The Division Bench in the reference order has expressed a doubt as to whether a person can be dependant on two families, his own and to which he has come across. It is trite that dependency is not financial dependency and in the context of the Act it is the dependency for a building. The mere fact that a person has a family of his own does not mean that he cannot be a member of landlord's family, but the test is whether he is also treated as a member of the landlord's family and he is dependant on the landlord's family for the building. Unless on facts it is established that dependant has got other building of his own he can be dependant on another family provided he comes_ R.C.R. No.335/2015 7 _within the expression "member of the family dependant on him" within the meaning of S.11(3) of the Act._ _11. The Rent Control Court and the Appellate Authority have concurrently found that brother in law is dependant on the third petitioner and he is a member of that family. We therefore find no merits in the original petition and the same would stand dismissed. Reference is answered accordingly. C. M. P. No. 35006 of 1996 is dismissed.”_ 12.In this decision, the bona fide need put forward for the building by the brother-in-law of the petitioner was considered. After considering the entire aspects which revolves around the expression 'member of a family' and 'dependant' contemplated under section 11(3) of the Act, the Full Bench of this Court held that brothers in law also could be deemed to be member of the family and dependant on the landlord, under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. 13.The learned counsel appearing for the respondents cited the decision in **Badrilal v. Smt.Sita bai & Others** (Supra) and drew our attention to para 25 which deals with the degree of dependency. _“25. While examining the business need of any family member of the landlord under S. 12(1)(f) of the M.P. Act, other than major son and married daughter, the test which has been laid down by the Supreme Court_ R.C.R. No.335/2015 8 _in the matter of Jogindar Pal (supra) is to be applied with slight modification and the concerned Court is required to decide : - Whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement in view of the close dependency of landlord and member of his family for whose business need eviction is sought? While answering above question, the concerned Court would bear in mind : -_ _(i) the nature and degree of dependence between the landlord pleading the requirement as "his own" and the member of his family who would actually use the premises._ _(ii) the circumstances in which the claim arises and is put forward, and_ _(iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord" claim._ _(iv) While casting its judicial verdict, the Court will adopt a practical and meaningful approach guided by the realities of life."_ 14.We have gone through this decision also. Even though, the aforesaid decision was also laid down by a Full Bench of Madhya Pradesh High Court, considering the facts of the case, we find that the decision laid down by this Court is squarely applicable to the instant case and binding to this Court. That apart, the decision in **Badrilal v. Smt.Sita bai & Others** (Supra) does not go in conflict with the decision laid down by the Full Bench of this Court, under reference, as the said R.C.R. No.335/2015 9 - decision also has given a wider and liberal interpretation to the expression “his business” employed in section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961. - 15.In view of the law settled above by the Full Bench of this Court, we are of the opinion that the status of the dependant in the instant case does not require deep consideration again particularly when PW1 has succeeded in proving that he has no job or any kind of avocation for his own livelihood. Thus the courts below are justified in finding that PW1 also could be deemed to be a member of the family dependant on the petitioner for the petition schedule building. - 16.The next question to be considered is whether the courts below are justified in finding that the bona fide need put forward by the petitioner is not hit by the first proviso to section 11(3) of the Act. It is trite law that as regards the first proviso the initial burden is on the tenant to prove that the landlord has another building of his own in his possession in the same locality. It follows that the burden will shift to the landlord to give special reasons for not occupying those suitable and vacant rooms, if the tenant succeeds in R.C.R. No.335/2015 10 discharging the initial burden. 17.The counsel for the respondents contended that there is no pleadings in the petition with respect to the other buildings in his possession which stands brought out in cross-examination of PW1. In **Kunju T.P. v. Fathima and Others** (2014 (3) KHC 127) this Court held that it cannot be understood from the first proviso to section 11(3) of the Act that the landlords need to plead the particulars of all premises under their own ownership and possession to claim an order of eviction under the I[st] proviso. In the above view, we find that the absence of the particulars of all the buildings which are in possession of the petitioner in the rent control petition is not fatal. Indisputably, no positive documentary evidence was produced by the respondents to prove that the petitioner has, in his ownership and possession, any other building in the same locality. 18.Coming to the oral evidence, it could be seen that in para 6 of the chief affidavit, PW1 has disclosed the full particulars of all other buildings which are owned and possessed by the petitioner and reported by the commissioner in the commission R.C.R. No.335/2015 11 report. But we further find that in the cross-examination those oral assertions of PW1 as regards the non availability of vacant and suitable rooms, in the possession of the petitioner, for starting the hotel business, was not effectively challenged in cross-examination. The absence of cross-examination on the oral assertions pertaining to non-availability of other buildings in the ownership and possession of the petitioner is fatal and we find that the respondents have miserably failed to discharge their initial burden under the first proviso. If that be so, the burden will not shift to the petitioner to prove the special reason for not occupying the buildings referred to in chief examination. It follows that the oral assertions with respect to the non availability of suitable vacant rooms in the possession of the petitioner stands unchallenged in evidence. In this analysis, we find that the courts below are justified in finding that the bona fide need put forward by the petitioner is not hit by the first proviso to section 11(3) of the Act. 19.The next question to be considered is whether there is any illegality or impropriety in the finding that the respondents are not entitled to get protection under the second proviso to R.C.R. No.335/2015 12 section 11(3) of the Act. Here also, the burden is heavy on the respondents to prove that they are depending upon the income derived from the hotel business, which is being conducted in the petition schedule building and no other suitable vacant buildings are available in the locality to shift the hotel business from the petition schedule building. As regards the income from the hotel business, no evidence has been adduced. Further it has come out in evidence that the 2[nd] respondent alone is conducting the business in the petition schedule building and that some of the respondents are working abroad. According to the 2[nd] respondent, he is getting a sum of Rs.1,000/- only as profit from the business. From the proven evidence it cannot be held that the respondents are depending upon the income derived from the hotel business. Except the oral evidence of RW1, no other evidence was produced in this respect. 20.Coming to second limb of the second proviso, it is true that the respondents have produced Exts.B1 to B4 documents, which would show that the buildings mentioned therein are in occupation of the tenants. As rightly held by the Appellate R.C.R. No.335/2015 13 - Authority, only by showing that the buildings mentioned in Exts.B1 to B4 are in occupation of the tenants, it cannot be said that no buildings are available in the locality. On the other hand, the Commissioner in Ext.C3 report stated that several vacant rooms were available in the locality. That apart, RW1 himself has admitted that he has not made any enquriy as to the availability of alternative buildings to shift the hotel business from the petition schedule building. Thus the respondents miserably failed to discharge the burden of proof under the second limb of the second proviso also. - 21.In the above analysis, we find that there is no illegality, or impropriety in any of the findings whereby the court below confirmed the findings of the Rent Control Court under section 11(3) of the Act. Hence we confirm the judgment passed by the Appellate Authority and dismiss the revision. - 22.At last, the learned counsel appearing for the respondents urged for granting one year time to vacate the premises. Per contra, the learned counsel appearing for the petitioner opposed the said request and submitted that a reasonable time alone can be granted. Having regard to the facts and R.C.R. No.335/2015 14 circumstances of the case, we are inclined to grant a reasonable time to the respondents to vacate the petition schedule building. The respondents shall vacate the petition schedule building on or before 31.12.2017 on the following conditions:- (i) The respondents shall file affidavits, expressing unconditional undertaking that they will vacate the petition schedule shop room without any obstruction on or before 31.12.2017, within a period of two months from the date of receipt of the copy of this order. (ii) They shall deposit the entire arrear, if any, before the Rent Control Court within a period of two months from the date of receipt of the copy of this order. (iii) The respondents shall continue to pay the rent, without default. (iv) In the event of failure to comply with any of the conditions as aforesaid, the time granted to the respondents to vacate the premises would stand automatically vacated and the Rent Control Court will be at liberty to proceed with the execution proceedings. **Sd/-** **K.HARILAL,** **JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** vps