Puthanpurayil Ashraf v. Praseed Babu

1 RCR No. 40 of 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** ## **RCRev..No.40 OF 2020** **AGAINST THE ORDER/JUDGMENT IN RCA 192/2017 DATED 16-10-2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VADAKARA** **AGAINST THE ORDER/JUDGMENT IN RCP 34/2016 DATED 20-09-2017 OF THE RENT CONTROLLER (MUNSIFF COURT), VADAKARA** ## **REVISION PETITIONER/S:** **PUTHANPURAYIL ASHRAF AGED 41 YEARS S/O. ABDULLA, PUTHANPURAYIL HOUSE, VAIKILLISSERY AMSOM AND DESOM, VAIKILLISSERY (P.O.), VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADV. SMT.K.DEEPA (PAYYANUR)** ## **RESPONDENT/S:** **PRASEED BABU AGED 51 YEARS S/O. KUMARAN, PRASANNA NIVAS, URALUNGAL AMOM DESOM, VELLIKULANGARA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT 673 101.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 RCR No. 40 of 2020 ## **ORDER** ## **C.S.DIAS, J.** The revision petitioner was the appellant in RCA No.192/2017 on the file of the Rent Control Appellate Authority (in short 'Appellate Authority'), Vatakara. The respondent in this revision petition was the respondent in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Vatakara, in RCP No.34/2016. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petition (RCP) as 'petitioner' and 'respondent'. 3. The petitioner had filed the RCP against the respondent, inter alia, pleading as follows: The petition schedule shop rooms (for brevity, hereinafter referred to as 'shop rooms') were let out on rent as per rental 3 RCR No. 40 of 2020 agreements executed by the father of the petitioner. After death of the father, the mother of the petitioner was administering the estate of the deceased. While so, the brother of the respondent had approached the petitioner's mother and made her to execute a rent bonds in respect of the shop rooms. Despite execution of the rent bonds, the respondent continued in possession of the shop rooms. He paid rent up to the month of January, 2016. The petitioner owns six private buses. He desires to expand his business by starting a travel agency in the shop rooms. Therefore, he bona fide needs the shop rooms for his own occupation. Although he owns two buildings in the same locality, the shop rooms in the buildings are in the occupation of tenants. The petitioner has no other vacant shop rooms in his possession. Although he sent a notice demanding vacant possession of the shop rooms, the brother of the respondent denied any relationship with the petitioner. The respondent also 4 RCR No. 40 of 2020 contended that he had agreed to purchase the shop rooms from the petitioner's father, and that he paid an advance sale consideration of Rs 7,50,000/-. The petitioner denied the said agreement. The respondent had also filed OS No.3/2016 seeking a decree for specific performance. The tenant is not depending on the income derived from the shop rooms. There are plenty of vacant shop rooms available in the locality which are sufficient for the respondent to conduct his business. Hence the petitioner prayed for an order of eviction under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). 4. The RCP was resisted by the respondent, who filed a counter statement, inter alia, pleading as follows: The tenancy in respect of the shop rooms by virtue of rental deeds is admitted. On the date the rent bonds were executed, an agreement for sale was also executed on 26.3.2009 between the respondent and the 5 RCR No. 40 of 2020 father of the petitioner. The father of the petitioner agreed to sell the shop rooms to the respondent for a sale consideration of Rs 15,00,000/-. An advance amount of Rs 7,50,000/- was paid to the deceased. Similarly, the deceased also received Rs 60,000/- as security for the shop rooms, from the respondent. As per the agreement, the respondent is entitled to continue in the shop rooms for a period of seven years and, thereafter, pay the balance sale consideration. The seven years period would expire on 26.3.2016. The respondent is conducting a fancy and footwear business in the shop rooms. He is depending on the income from the business, for his livelihood. There are no vacant shop rooms in the locality. The bona fide need projected by the petitioner is only a ruse for eviction. The petitioner is an affluent businessman conducting several business in the locality. There is no necessity for him to evict the respondent from the shop rooms. Therefore, the RCP may be dismissed. 6 RCR No. 40 of 2020 5. The petitioner was examined as PW1 and Exts A1 to A3 were marked through him. The respondent was examined as RW1 and Exts B1 and B2 were marked through him. 6. The Rent Control Court after evaluating the pleadings and evidence on record, allowed the RCP by ordering eviction of the respondent from the shop rooms under Sec.11(3) of the Act. The respondent was directed to put the petitioner in vacant possession of the shop rooms within a period of three months. 7. Aggrieved by the impugned order passed by the Rent Control Court, the respondent preferred RCA No.192/2017 before the Appellate Authority. The Appellate Authority by the impugned judgment dated 16.10.2019 dismissed the appeal and confirmed the order of eviction passed by the Rent Control Court. 8. It is challenging the judgment passed by the Appellate Authority in RCA No.192/2017 and the order passed by the Rent Control Court in RCP No.34/2016, 7 RCR No. 40 of 2020 that this Rent Control Revision is filed. 9. Heard Smt.K.Deepa, the learned counsel for the revision petitioner. 10. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the shop rooms under Sec.11 (3) of the Act. According to her, the petitioner has not proved the bona fide need as projected in the RCP. It was impossible for the courts below to arrive at the impugned findings, as the need projected by the petitioner was not proved by him. It was the specific case of the respondent, that the petitioner had not secured licences from the statutory authorities to start the proposed business in the shop rooms. Therefore, the contention that the petitioner wants to start a travel agency with the buses in his possession cannot be believed. The courts below have also failed to consider the impact of the first and second provisos to Sec.11 (3) of the Act. The learned 8 RCR No. 40 of 2020 counsel, therefore, prayed that the revision petition be allowed and the concurrent findings of the courts below be set aside. 11. The question that emerges for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the judgment and order passed by the courts below by ordering eviction of the respondent under Sec.11 (3) of the Act. 12. It is trite law that, this Court while exercising its revisional jurisdiction under Sec.20 of the Act is not expected to re-appreciate the entire pleadings and evidence on record. This Court is only supposed to examine the legality of the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings and evidence on record. 13. The trump card of the respondent before the Rent Control Court was that he had filed O.S No.3/2016 before the Court of the Subordinate Judge, Vatakara 9 RCR No. 40 of 2020 seeking specific performance of the agreement that was purportedly executed between him and petitioner's father. Therefore, he contended that the petitioner did not have the legal right to seek his eviction before the time period stipulated in the agreement. For the said purpose, he had produced certified copies of plaint and written statement in O.S 3/2016, which were marked as Exts B1 and B2. 14. Undisputedly, when the RCA came up for hearing, O.S No.3/2016 was dismissed by the civil court by its judgment dated 11.9.2018. The said judgment and decree were produced before the Appellate Authority by the petitioner, and the same were accepted on record and marked as Exts A4 and A5 as per the order in I.A No.39/2019. The said judgment and decree have become final. Therefore, the respondent's contention regarding the agreement for sale executed between him and the petitioner's father has come to an end. Thus, the landlord-tenant 10 RCR No. 40 of 2020 relationship between the petitioner and the respondent is found to be bona fide. 15. The only other point that was argued before us was that the petitioner does not possess licences from the competent statutory authority to start a travel agency as per the bona fide need that was projected by him. 16. Admittedly, the petitioner has six private buses of his own. He is operating the said buses as tourist buses. The respondent does not have a case that the petitioner is not doing business in operating private buses. It is the need of the petitioner that he would like to start a travel agency-booking office in the shop rooms, so that he could expand his business. Unless and until, the petitioner obtains vacant possession of the shop rooms, it may be difficult for him to apply and obtain licences from the statutory authorities showing the said shop rooms as his office if so required from the statutory authorities. The 11 RCR No. 40 of 2020 respondent does not have the legal right to question the wisdom of the petitioner in starting a business of his own. 17. It is settled law in a catena of decisions that it is not for the tenant to dictate the choice of the landlord in deciding his proposed business. 18. It is settled law in **Deep Chandra Juneja vs Lajwanti Kathuria [ AIR 2008 SC 3095]** that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the need put forward by the landlord is genuine or not, and is not a ruse for eviction. 19. The Supreme Court in **Sarla Ahuja vs United** **India Insurance Company Ltd [(1998) 8 SCC 119],** held that when a landlord asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a 12 RCR No. 40 of 2020 prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide. 20. The courts below after appreciating the pleadings and evidence on record has come to the legitimate conclusion that the bona fide need projected by the petitioner is genuine. It is after finding the need to be bona fide that the courts below have passed an order of eviction under Sec.11 (3) of the Act. We do not find any reason to take a contrary view from the findings that have been arrived at by the courts below. 21. One of the cardinal contentions of the respondent was that the petitioner is a rich businessman living in affluent circumstances. Hence, his need to start a travel agency using his private buses in the shop rooms was unbelievable. 22. In **Abdul Rub vs Jobby Tharian (2003 (3) KLT 733)** this Court has held that the affluence and financial capacity of the landlord is not a ground to 13 RCR No. 40 of 2020 reject his claim to start a business in the shop rooms sought to be evicted. The landlord may have number of businesses, but that cannot restrict him from expanding his business. In light of the above categoric declaration of law, we are convinced that the courts below have rightly come to the conclusion that the need projected by the petitioner is bona fide, to start a travel agency in the shop rooms. 23. Now coming to the question whether the RCP is hit by the first proviso to Sec.11 (3) of the Act, we find that the petitioner has given special reason and proved that all the shop rooms belonging to him have been leased out, and that they are in possession of the tenants. The respondent has not disproved the said aspect other than by barely denying the assertion. It is trite law that, the onus of proof is on the tenant to prove that the landlord has alternate shop rooms to start his business. The respondent has miserably failed to shift the burden of proof. Thus, we hold that the 14 RCR No. 40 of 2020 RCP is not hit by the first proviso to Sec.11 (3) of the Act. 24. The last point to be determined is whether the respondent is entitled to the protection under the second proviso to Sec.11 (3) of the Act. Even though the respondent took up a contention in the pleadings that he is eking his livelihood from the income generated from the business being conducted in the shop rooms, he had not produced any documents to substantiate his contention. Other than for his bald pleadings, that he is depending on the income derived from the business, there is no cogent materials on record. An assertion without proof is insufficient to get the protection of the first limb to the second proviso of Sec.11 (3) of the Act. 25. It was the specific case of the petitioner that there are numerous buildings lying vacant in the locality. The respondent has not disproved the assertion pleaded by the petitioner in the RCP. It was 15 RCR No. 40 of 2020 the respondent's burden to prove that there are no buildings lying vacant in the locality. In light of the aforesaid finding, we are convinced that the respondent is not entitled for the protection under the second proviso to Sec. 11 (3) of the Act. 26. In the totality of the facts and circumstances of the case, the pleadings and evidence on record and after going through the order and judgment of the courts below, we have no doubt in our mind that the Rent Control Court as well as the Appellate Authority have rightly ordered the eviction of the respondent under Sec.11 (3) of the Act. We confirm the concurrent findings of the Rent Control Court in RCP 34/2016 and the Appellate Authority in RCA No.192/2017 . 27. At the said point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the shop rooms. Taking into consideration the fact that the RCP was filed in the year 2016 and that 16 RCR No. 40 of 2020 the impugned order was passed on 20.9.2017, and subsequently, the Rent Control Appeal was filed in the year 2017 and the impugned order was passed on 16.10.2019, we feel that the revision petitioner has got more than sufficient time to vacate the building. However, considering the fact that the revision petitioner is conducting a fancy and footwear business and has a huge stock of goods in his possession anticipating the onam festival, we feel that a reasonable time period of seven months has to be granted to the revision petitioner to find an alternate accommodation and shift his business. In the said circumstances, we grant the revision petitioner seven months' time to vacate the shop rooms on the following conditions: (1) The revision petitioner/tenant shall file an affidavit, within two weeks 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, expressing an undertaking that he will vacate the petition schedule 17 RCR No. 40 of 2020 ## shop rooms 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 landlord will be at liberty to proceed with the execution of the eviction order. In the result, this revision petition is accordingly dismissed. Sd/- **K.HARILAL JUDGE** Sd/- **C.S.DIAS JUDGE** sks/20.2.2020 /True copy/ P.A to Judge