Puthroli Narayani and Puthroli Suresh Babu v. Chalil Moosa Haji and Shafeer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943 R.C.REV. NO. 18 OF 2022 AGAINST THE ORDER DATED 16.08.2021 IN R.C.A.NO.167 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VATAKARA AND THE ORDER DATED 19.08.2019 IN R.C.P.NO.108 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF), VATAKARA** ## **REVISION PETITIONERS:** **1 PUTHROLI NARAYANI, AGED 70 YEARS, W/O. KUNHIRAMAN, PUTHROLI THAZHE KUNI HOUSE, NADAKKUTHAZHA VILLAGE, PUTHUPANAM P. O., VATAKARA TALUK, KOZHIKODE, PIN - 673 105. 2 PUTHROLI SURESH BABU, AGED 44 YEARS, S/O. KUNHIRAMAN, PUTHROLI THAZHE KUNI HOUSE, NADAKKUTHAZHA VILLAGE, PUTHUPANAM P. O., VATAKARA TALUK, KOZHIKODE, PIN - 673 105. BY ADVS. ZUBAIR PULIKKOOL SIVASANKARAN T.** ## **RESPONDENTS:** **1 CHALIL MOOSA HAJI AGED 74 YEARS, S/O. KUNHAVULLA, SAREENA MANZIL, MENMUNDA P.O., VATAKARA TALUK, KOZHIKODE DT., PIN - 673 104.** 2 R.C.Rev.No. 18 of 2022 **2 SHAFEER,** **AGED 24 YEARS, S/O. SAREENA, SAREENA MANZIL, MENMUNDA P.O., VATAKARA TALUK, KOZHIKODE DT., PIN - 673 104.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 18 of 2022 ## **O R D E R** ## Ajithkumar, J. The respondents filed R.C.P.No.108 of 2017 before the Rent Control Court (Munsiff), Vatakara, seeking eviction of the tenant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was allowed directing the tenants to surrender vacant possession of the petition schedule shop room within one month from the date of that order, 19.08.2019. Two among the four tenants, who are the petitioners herein, filed appeal invoking Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Addditional District Judge), Vatakara as R.C.A.No.167 of 2019. That appeal was dismissed as per the judgment dated 16.08.2021. Feeling aggrieved thereof, the petitioners filed this revision petition under Section 20 of the Act. 2. The 1[st] respondent is the landlord. The original tenant, Sri.Kunjiraman, died and his legal heirs continued as tenants. The 1[st] respondent along with his grandson, the 2[nd] respondent, wants to start a business of drawing up building 4 R.C.Rev.No. 18 of 2022 plans and sales in cement and hollow bricks in the petition schedule shop room. The grandson, the 2[nd] respondent, completed Draftsman (Civil) course. In the circumstances, the respondents are bonafide in need of the petition schedule shop room for their own occupation. 3. The petitioners are respondent Nos.1 and 4 in the rent control petition. They filed a counter statement challenging the bonafide need and contending that the petition was not maintainable since a rent control petition filed earlier by the 1[st] respondent was dismissed for default. The petitioners also have contended that the respondents were in possession of other rooms, the petitioners have been depending on the income derived from the business in the petition schedule shop room for their livelihood and no other suitable building to avail on rent is available in the locality. 4. The Rent Control Court recorded the oral evidence of PW1 and PW2 and admitted in evidence Exts.A1 to A6. No evidence was let in by the revision petitioners. After considering the said evidence, the Rent Control Court found 5 R.C.Rev.No. 18 of 2022 that the petition was maintainable, the need urged was bonafide and the revision petitioners were not entitled to get the benefit of any of the provisos to Section 11(3) of the Act. Accordingly, eviction was ordered. In the appeal, the revision petitioners reiterated the same contentions, without any success. 5. Today, when this matter came up for admission, the learned counsel appearing for the petitioners is heard in detail. 6. The learned counsel appearing for the petitioners would contend that the rent control petition should not have been entertained since it was not maintainable. The 1[st] respondent filed R.C.P.No.100 of 2012 seeking eviction of the tenant on the ground of bonafide need. The 1[st] respondent urged in the said rent control petition that he wanted to start a grocery business in the petition schedule shop room. That rent control petition was dismissed for default. Ext.A5 is the certified copy of the said order. The 1[st] respondent filed I.A.No.705 of 2015 before the Rent Control Court, Vatakara, 6 R.C.Rev.No. 18 of 2022 seeking to restore the said rent control petition on file. That interlocutory application was dismissed as per order dated 16.12.2015, a copy of which is Ext.A6. The learned counsel would contend that since the earlier rent control petition, which was filed seeking a similar relief was dismissed, the present petition is barred in view of the provisions of Section 15 of the Act. Section 15 reads thus: **'** 15. Decisions which have become final not to be reopened.- The Rent Control Court shall summarily reject any application under sub-section (2), (3), (4), (5), (7) or sub-section (8) of Section 11 which raises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under this Act or under the corresponding provisions of any law in force prior to the commencement of this Act or the corresponding provisions of any law repealed or superseded such by such law.' 7. Although both the eviction petitions have been filed invoking Section 11(3) of the Act, the needs urged are different. In R.C.P.No.100 of 2012, the 1[st] respondent put forward a need that he wanted to start a grocery business. In 7 ## R.C.Rev.No. 18 of 2022 this revision petition, the ground urged is that the 1[st] respondent along with his grandson, the 2[nd] respondent, who is a dependent on the 1[st] respondent, wanted to start a business of drawing up building plans and trading in cement and hollow-bricks. It is their contention that the 2[nd] respondent, having been qualified in the Draftsman (Civil) course, they decided to start such a business. Ext.A4 is the National Trade Certificate showing that the 2[nd] respondent successfully completed the Draftsman (Civil) course. Thus, for a totally different purpose, the respondents have claimed eviction of the tenants from the petition schedule shop room. The contention of the petitioners regarding maintainability was considered by the Rent Control Court as well as the Appellate Authority in detail. The Appellate Authority after referring the decision of this Court in **Radhalekshmy v. Indian Saree House [2014 (2) KHC 567]** , held that the dismissal of R.C.P.No.100 of 2012 is not a bar for the present eviction petition. 8. There has not been any final determination of the 8 R.C.Rev.No. 18 of 2022 claim in R.C.P.No.100 of 2012. The cause of action for the eviction petitions are totally different. The fact that five years before, the landlord set forth a claim for eviction on a totally different ground cannot be a bar to a second petition for eviction. In **Radhalekshmy** (supra) it was held that it is the settled law that the landlord would be entitled to file a second application, if there is change of circumstances. In the view of that matter, we hold that the contention of the petitioners that the present eviction is not maintainable, owing to Exts.A5 and A6 orders, is untenable. We find no reason to interfere with the findings of the Appellate Authority and the Rent Control Court in this regard. 9. Both the respondents deposed before the Rent Control Court in respect of the need urged by them. No reason whatsoever has been brought out in their crossexamination to discredit their veracity. PW2, the 2[nd] respondent, is a qualified Draftsman. The plan of the respondents to start an establishment in drawing up of building plans together with business of cement and hollow- 9 ## R.C.Rev.No. 18 of 2022 bricks in the petition schedule shop room can only be said to be bonafide and genuine. 10. The petitioners contend that two vacant rooms are available with the landlords and that disentitles them from claiming eviction of the petitioners. PW1 admitted that he has two other rooms in the same building. But he categorically stated that both those rooms are now in the possession of other tenants. There is no reason to disbelieve the said version. The petitioners did not adduce any evidence to show that those two rooms are lying vacant. It is the burden of the tenant to prove that vacant rooms are available with the landlord. Only if that fact is proved, the landlord is obliged to show special reasons for not occupying the said rooms. In the absence of any evidence to show that the respondents are in possession of any vacant room, the first proviso to Section 11(3) has no application. The finding of the Appellate Authority and the Rent Control Court in this regard is not liable to be interfered with. 10 R.C.Rev.No. 18 of 2022 11. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003 (2) KLT 230]** held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 12. The petitioners raised a contention that they are entitled to get the benefit of the second provision of Section 11(3), but they did not adduce any evidence in support of that plea. Therefore, it can only be held that the petitioners are not entitled to the protection of the second proviso to Section 11(3). 11 R.C.Rev.No. 18 of 2022 13. In view of what are stated above, the order of eviction under Section 11(3) of the Act by the Rent Control Court, as confirmed by the Appellate Authority, is not liable to be interfered with. It is not suffering from any illegality, irregularity or impropriety. In the circumstances, we do not find any valid reason to admit the revision petition on file. Hence, we dispense with notice to the respondents and dismiss this revision petition. 14. The learned counsel for the petitioners has made a fervent request to afford nine months' time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. 15. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The respondents-tenants in the Rent Control Petition shall file an affidavit before the Rent Control Court 12 R.C.Rev.No. 18 of 2022 within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop room to the petitionerslandlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop room and further that they will conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; - (ii) The respondents-tenants in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in 13 R.C.Rev.No. 18 of 2022 the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioners-landlord will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/ ## **P.G. AJITHKUMAR, JUDGE** dkr