PUTHIYAPURAYIL SHABEER v. CHERIYA THOPPILAKATH AMINABI and CHERIYA THOPPILAKATH SAINABI

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY ,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940** **R.C.Rev..No. 131 of 2018** **AGAINST THE JUDGMENT IN RCP 155/2014 of ADDL.MUNSIFF COURT, KOZHIKODE-I DATED 30-06-2016** **AGAINST THE JUDGMENT IN RCA 205/2016 of ADDL. DISTRICT COURT & SESSIONS COURT - IV, KOZHIKODE DATED 18-11-2017** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **PUTHIYAPURAYIL SHABEER, S/O. UMMER, AGED 48, RESIDING AT POOLINDECHOTTIL, KUTTICHIRA, KOZHIKODE DISTRICT-673 001.** **BY ADVS. SRI.K.SANEESH KUMAR SMT.V.B.SANTHINI** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 CHERIYA THOPPILAKATH AMINABI, D/O. ALIKKOYA HAJI, AGED ABOUT 52, 15/551 A,'FYSASSS' M.K ROAD, P.O KALLAI,NAGARAM AMSOM DESOM, KOZHIKODE673 003.REPRESENTED BY POWER OF ATTORNEY HOLDER C.T UMMER KOYA, S/O.LATE M.V ALIKKOYA HAJI,AGED ABOUT 58, KALARIKKANDY PARAMBU, MANARI ROAD,P.O KALLAI, KOZHIKODE-673 003.** **2 CHERIYA THOPPILAKATH SAINABI D/O. ALIKKOYA HAJI, AGED ABOUT 52, 23/1788,'EADEN VIEW', PANNIANKARA AMSOM DESOM,KOZHIKODE TALUK, KOZHIKODE DISTRICT-673 003.** **BY ADV. SRI.V.M.KRISHNAKUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **R.C.Rev..No. 131 of 2018** **2** ## **ORDER** ## **Harilal, J** **The revision petitioner, is the tenant/respondent in R.C.P.No.155/2014 of the Rent Control Court-I, Kozhikode. He is confronting with an order of eviction passed concurrently by the courts below under Sections 11(2)(b), 11(3) and 11(4)(iii) and also an order fixing the fair rent at the rate of Rs.900/- per month under Section 5(1) of the Kerala Building (Lease & Rent Control) Act, 1965.** **2. The respondents/petitioners filed the Rent control petition on the ground that the rent was in arrears from 01.10.2013. It is averred in the rent control petition that the husband of the second petitioner** _**bonafide**_ **needs the petition schedule building for starting a hardware shop. The revision petitioner/respondent has subsequently acquired possession of another room in the same locality and he is doing business therein, after the commencement of present tenancy. Considering the commercial importance of the locality, the present rent @ Rs.650/-per month is very low. Hence, he prayed for enhancement of the rent to Rs.4,000/- per month. Thus according to the** **R.C.Rev..No. 131 of 2018** **3** **respondents/petitioners, they are entitled to get an order of eviction under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Act and enhanced rent at the rate of Rs.4,000/- per month.** **3. The revision petitioner/respondent resisted the prayer for eviction on all the aforesaid grounds. As regards Sections 11(2)(b), revision petitioner/respondent contended that though he has tendered the rent by money order, the petitioners refused to accept the same. As regards the claim for eviction under Section 11(3), it was contended that the need projected in the petition is not** _**bonafide**_ **and the respondents/petitioners have another building of their own for the occupation of 2[nd] respondents' husband. So also, he is entitled to get a protection under the second proviso to Section 11(3) of the Act. As regards the claim for eviction under Section 11(4) (iii), it is contended that, though he had acquired possession of another shop room, which is situated just opposite to the petition shop room, after the commencement of the present tenancy, that room was taken on lease by the respondent for the purpose of his brother, who is conducting business therein and he** **R.C.Rev..No. 131 of 2018** **4** **is the licencee of the aforesaid shop room. As regard the claim for enhancement and fixation of fair rent, it is contended that the present rent is fair and** **just, no interference is warranted and the respondents/petitioners are not entitled to get enhanced rent @ 4,000/- per month.** **4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the claim for eviction under Section 11(3) is** _**bonafide**_ **and the revision petitioner/respondent is not entitled to get protection under the proviso to Section 11(3) and that the revision petitioner/respondent has subsequently acquired possession of another building and that the rent was in arrears from 01.10.2013. Further, the rent control court enhanced the existing rent to Rs.900/- per month from Rs.650/-, on a finding that the present rent is very low in view of the parameters laid down by this Court in** _**Edger Ferus v. Abraham Ittycheria**_ **[2004 (1) KLT 767]. Aggrieved by the orders of the courts below, the revision petitioner approached this Court with the present revision petition.** **R.C.Rev..No. 131 of 2018** **5** **5. Heard the learned counsel for the revision petitioner.** **6. The learned counsel for the revision petitioner contended that the respondents/petitioners have suppressed the vacant possession of another room, in the rent control petition and it has come out in evidence that, at the time of filing the rent control petition, the 2[nd] respondent/2[nd] petitioner has another building of her own in her possession to start the proposed business for her husband. But, the courts below have failed to consider the said evidence on record under the first proviso to Section 11(3) in its correct perspective.** **7. Going by the impugned judgment, it could be seen that the courts below have concurrently found that the non disclosure of the vacant possession of another room in the landlords' possession is not fatal in view of the decisions of this Court in** _**Urmese J.Valooran v. Padma**_ **2014 (4) KLT 765. We are of the opinion that, in view of the legal position settled by the** _**Urmese's case**_ **(supra),** _**Kunhamina K.V. v. K.T.Aboobacker Haji**_ **2016 KHC 639 and** _**Kunju v. Fathima**_ **2014 (3) KLT 563; the non disclosure of the vacant** **R.C.Rev..No. 131 of 2018** **6** **possession of another room by the landlord is not fatal and we do not find any reason to interfere with the concurrent findings of the courts below in that aspect. That apart, it has come out in evidence that the said vacant room is a room having an area of 1000 sq.ft. and such a big room is not required for the proposed business. Thus PW2 has given special reasons for not occupying the said room, in her evidence.** **8. Further the learned counsel appearing for the revision petitioner contends that the courts below have failed to consider the evidence on record, under Section 11 (4)(iii) also in its correct perspective. It is further contended that the respondents/petitioners have not adduced any evidence to discharge their burden of proof under Section 11(4) (iii) of the Act and the courts below have relied on the evidence adduced by the revision petitioner/respondent only to arrive at a finding that the revision petitioner/respondent has subsequently acquired possession of another vacant room. So also it is contended that the courts below have not considered the fact that the subsequently acquired shop room is in occupation of the brother of the** **R.C.Rev..No. 131 of 2018** **7** **revision petitioner/respondent.** **9. Going by the impugned judgment, we find that the courts below have found that the revision petitioner/respondent himself admitted that he has subsequently acquired possession of another building, which is situated just opposite to the petition schedule room. If the revision petitioner/respondent himself has admitted the subsequent acquisition of another shop room, the same is sufficient to arrive at a finding that the claim for eviction under Section 11(4)(iii) can be allowed . The fact that the license stands in the name of the brother of the revision petitioner/respondent is of no consequence at all, so long as the lease deed stands executed in the favour of the revision petitioner/respondent and thereby the tenancy stands in the name of the revision petitioner/respondent.** **10. Thirdly the learned counsel for the petitioner submits that the rent control petition seeking eviction and fixation of fair rent are not maintainable in view of the decisions reported in** _**Mohammad Ahmad and Another v. Atma Ram Chauhan and others**_ **2011 KHC 4505 and** _**Subair and others v.CP.**_ **R.C.Rev..No. 131 of 2018** **8** ## _**Kunhami @ Kunhimariyam and others**_ **2015 (5) KHC 260. We** **have carefully gone through the aforesaid decisions, and we find that the preposition laid down in those decisions will not come into effect in the present case. In the present case the fixation of fair rent is sought for till the date of passing the order of eviction only; but the decisions referred above are applicable to the cases in which the fixation of fair rent was made and, thereafter, a periodical enhancement was provided in those orders fixing the fair rent. So the aforesaid decisions are applicable to cases in which periodical enhancement was also allowed. Since the facts of the present case are distinguishable from the facts in the decisions referred above, we are not inclined to apply the preposition laid down in the aforesaid decisions in the instant case. Therefore, we find that the contentions raised by the learned counsel for the revision petitioner in this revision petition are not legally sustainable. Therefore, this revision fails, and it is dismissed. 11. The learned counsel for the revision** **petitioner seeks time to shift the business from the** **R.C.Rev..No. 131 of 2018** **9** **petition schedule property to another building. Considering the facts and circumstances, we are inclined to grant seven months' time to vacate the petition schedule building, 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 they will vacate the petition schedule shop room 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**_ **R.C.Rev..No. 131 of 2018** **10** _**stand automatically vacated and the respondents/landlord will be at liberty to proceed with the execution of the eviction order.**_ **Sd/K.HARILAL, JUDGE sd/-** **ANNIE JOHN, JUDGE** AMV/05/10/2018