Puthupparamban Hamza v Pathummakutty alias Fathima and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935** **RCRev..No. 292 of 2013 () -------------------------AGAINST THE JUDGMENT IN RCA 13/2008 of RENT CONTROL APPELLATE AUTHORITY OF MANJERI, DATED 12-04-2013** **AGAINST THE ORDER IN RCP 22/2004 of MUNSIFF COURT, MANJERI DATED 07-04-2008** **------** **PETITIONER:(APPELLANT-1ST RESPONDENT) :** **--------------------------------------** **PUTHUPARAMBAN HAMZA, AGED 80 YEARS, S/O. UNNEEN,VALLIKKAPATTA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679324.** **BY ADV. SRI.R.RAJESH KORMATH** **RESPONDENTS (RESPONDENTS-PETITIONERS 1 & 3 TO 6, SUPPL.RESPONDENTS 2 TO 6 NOT PARTIS BEFORE THE RCC) :** **--------------------------------------------------** **1. PATHUMMAKUTTY ALIAS FATHIMA, AGED 72 YEARS, W/O. ATHIMANNIL KUNHIMOHAMMED, MANJERI AMSOM DESOM, ERNAD TALUK, MANJERI, PIN - 676121.** **2. MOHAMMED HAJI, AGED 62 YEARS, MANJERI AMSOM DESOM, ERNAD TALUK, MANJERI PIN - 676121.** **3. SAINABA, AGED 58 YEARS, W/O. MALANADADAN VEERAN KUTTY, THRIKKALANGODE AMSOM DESOM AND POST, ERNAD TALUK, MANJERI,** **4. SAKEEBAHARSAL, AGED 42 YEARS, S/O. MOHAMMED HAJI, MANJERI AMSOM DESOM AND POST, ERNAD TALUK, MANJERI, PIN 676121.** **5. ATHIMANNIL MUHAMMEDALI, AGED 43 YEARS, S/O. PATHUMMAKUTTY ALIAS FATHIMA MANJERI AMSOM DESOM AND POST, ERNAD TALUK, MANJERI, PIN - 676121.** ## **RCRev..No. 292 of 2013 ()** **6. ABDULLA, AGED 68 YEARS, S/O. ALAVI, MANJERI AMSOM, DESOM AND POST, ERNAD TALUK, MANERI, PIN - 676121.** **7. SUHARABI, AGED 33 YEARS, VELUTHEDATHPARA, PANTHALLOOR ROAD, VALLIKKAPATTA AMSOM DESOM, PERINTHALMANNA TALUK 670324.** **8. HAFSATH, AGED 28 YEARS, VELUTHEDATHPARA, PANTHALLOOR ROAD, VALLIKKAPATTA AMSOM DESOM, PERINTHALMANNA TALUK, PIN - 679324.** **9. KATHEESUMMA, AGED 63 YEARS, W/O.ALAVI, VELUTHEDATHPARA, PANTHALLOOR ROAD, VALLIKKAPATTA AMSOM DESOM, PERINTHALMANNA TALUK, PIN - 679324.** **10. BIRIYUMMA, AGED 39 YEARS, W/O. PUTHUPARAMBIL ASHARAF, MANKAPALLIPPURAM, PERINTHALMANNA TALUK, KOOTILANGADI VILLAGE, MALAPPURAM DISTRIC PIN - 679324.** **11. HASEENA JASMINE, AGED 25 YEARS, D/O. PUTHUPARAMBIL ASHARAF, MANKAPALLIPPURAM, PERINTHALMANNA TALUK, KOOTILANGADI VILLAGE, MALAPPURAM DISTRIC PIN - 679324.** **12. DHILSAD (MINOR) AGED 12 YEARS, S/O. PUTHUPARAMBIL ASHARAF, MANKAPALLIPPURAM, PERINTHALMANNA TALUK, KOOTILANGADI VILLAGE, MALAPPURAM DISTRIC PIN - 679324. REPRESENTED BY GUARDIAN-MOTHER BIRIYUMMA, 10TH RESPONDENT IN THE RENT CONTROL REVISION.** **13. AJVA (MINOR) AGED 9 YEARS, S/O. PUTHUPARAMBIL ASHARAF, MANKAPALLIPPURAM, PERINTHALMANNA TALUK, KOOTILANGADI VILLAGE, MALAPPURAM DISTRIC PIN - 679324. REPRESENTED BY GUARDIAN-MOTHER BIRIYUMMA, 10TH RESPONDENT IN THE RENT CONTROL REVISION.** **14. FIDHA (MINOR) AGED 8 YEARS, D/O. PUTHUPARAMBIL ASHARAF, MANKAPALLIPPURAM, PERINTHALMANNA TALUK, KOOTILANGADI VILLAGE, MALAPPURAM DISTRIC PIN - 679324. REPRESENTED BY GUARDIAN-MOTHER BIRIYUMMA, 10TH RESPONDENT IN THE RENT CONTROL REVISION.** **15. NASHVA, (MINOR) AGED 6 YEARS, D/O. PUTHUPARAMBIL ASHARAF, MANKAPALLIPPURAM, PERINTHALMANNA TALUK, KOOTILANGADI VILLAGE, MALAPPURAM DISTRIC PIN - 679324. REPRESENTED BY GUARDIAN-MOTHER BIRIYUMMA, 10TH RESPONDENT IN THE RENT CONTROL REVISION.** ## **RCRev..No. 292 of 2013 ()** **16. FATHIMA SUHARA, AGED 48 YEARS, D/O. NOTTITHODI AYISHA, NILAMBUR TALUK, KARUVARAKUNDU AMSOM DESOM, P.O.KUTTATHI, PIN 676562.** **17. SALEENA, AGED 46 YEARS, D/O. NOTTITHODI AYISHA, NILAMBUR TALUK, KARUVARAKUNDU AMSOM DESOM, P.O.KUTTATHI, PIN 676562.** **18. RUBEENA, AGED 42 YEARS, D/O. NOTTITHODI AYISHA, NILAMBUR TALUK, KARUVARAKUNDU AMSOM DESOM, P.O.KUTTATHI, PIN 676562.** **19. JASEENA, AGED 41 YEARS, D/O. NOTTITHODI AYISHA, NILAMBUR TALUK, KARUVARAKUNDU AMSOM DESOM, P.O.KUTTATHI, PIN 676562.** **20. MAJEED, AGED 36 YEARS, D/O. NOTTITHODI AYISHA, NILAMBUR TALUK, KARUVARAKUNDU AMSOM DESOM, P.O.KUTTATHI, PIN 676562.** **R1 TO R6 & R16 TO R20 BY ADVS. SRI.M.A.ABDUL HAKHIM** **(CAVEATOR)** **SRI.M.G.ANON** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26-11-2013 ALONG WITH CROSS OBJECTION NO.99/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** **T.R. RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R.No.292/2013 & Cross Objection No.99/2013 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 26[th] day of November, 2013** ## **O R D E R** ## **Ramachandran Nair, J.** This revision petition is filed at the instance of the tenant of a building who is conducting a hotel in the petition schedule building. The landlords sought eviction under Sections 11(3), 11(4)(iv) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (for short, the 'Act') and under Section 11(4)(i) of the Act which was added later. The Rent Control Court allowed eviction under Sections 11(3) and 11(4)(i) of the Act and the prayer for eviction under Sections 11(4)(iv) and 11(8) of the Act was rejected. The Appellate Authority allowed eviction under Section 11(3) of the Act and disallowed eviction on other grounds. Even though the landlords have filed a cross objection to set aside the Judgment of the Appellate Authority to the extent to which it had interfered with the order of eviction under Section 11(4)(i) of the Act, it is submitted by the learned counsel for the ## **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` ## **-:2:-** respondents that the landlords are seeking relief only under Section 11(3) of the Act. Therefore, we proceed to consider the respective contentions of the parties under Section 11(3) of the Act. 2. Learned counsel Shri Rajesh R.Kormath appearing for the petitioner submitted that it is a case where the landlords' prayer under Section 11(4)(iv) of the Act for reconstruction was rejected for the reason that the Municipality rejected the application for Permit and Licence for construction of the new Building in the vacant space at the back of the existing building. It is submitted by the learned counsel that the said aspect will tell upon the bona fides of the claim under Section 11(3) of the Act also since in the eviction petition what is projected is the requirement of the petitioners 5 and 6 therein (respondents 4 and 5 in the rent control revision) who are conducting business elsewhere, for occupying the petition schedule building after providing modern facilities. It is submitted therefore, that as the said aspect will tell upon the bona fide need of the landlords itself, the Appellate Authority was not justified in allowing eviction **R.C.R.No.292/201** **`3 & C.O.No.99/2013`** ## **-:3:-** by upholding the claim under Section 11(3) of the Act. It is also the case of the learned counsel for the petitioner that an over all reading of the rent control petition will show that the landlords have not pleaded a definite case including the one relating to the specific portion of the petition schedule building to which eviction petition is filed. 3. Learned counsel for the respondents Shri M.A.Abdul Hakkim submitted that the eviction sought by the landlords under Section 11(4)(iv) of the Act even though was found against them for technical reasons, namely, for want of Plan and Licence by the Municipality, the application for permit for construction was actually for putting up a building on the rear side of the petition schedule plot having an extent of 11.6 cents and it was only for the reason that there is no direct way to the said plot, the application was rejected. It is submitted that the same will not tell upon the bona fide need of the landlords since the requirement is to occupy the petition schedule building itself and the landlords are entitled to occupy it even after conducting necessary repairs going by various decisions of this ## **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` **-:4:-** Court. The tenant had not disputed the identity of the tenanted premises in the objections filed. 4. Our attention was invited to the pleadings and evidence of the parties by the learned counsel appearing on both sides. 5. For considering the plea raised by the petitioner, we will first refer to the main averments in the rent control petition. The petitioners, six in number, are relatives. The fifth petitioner is the son of the third petitioner and the sixth petitioner is the son of the first petitioner. The petitioners 2, 3 and 4 are sisters and one brother of the first petitioner. In paragraph 5 it is stated that petitioners 5 and 6 are doing business by paying huge rent and, therefore, the tenant was requested to vacate the building for occupation by them. In paragraph 6 it is further stated that if the petition schedule building is vacated, it will be very convenient for the petitioners 5 and 6 to conduct business. In paragraphs 7 and 8, while referring to the developments in the locality, it is stated that there are so many new buildings which have come up and these aspects have also been **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` ## **-:5:-** highlighted in the process of advancing a contention that the tenant will be able to get a convenient building in the event of eviction. After stating so, it is further averred that, if it is found by the court at any time that there are no vacant buildings in the locality for occupation of the respondent after shifting from the petition schedule rooms and if the court directs so, the petitioners are prepared to provide one or two rooms at any time when a new building is constructed in the petition schedule portion but, with a condition that he should pay rent at the market rate prevalent at that point of time. 6. Going by the arguments of the learned counsel for the landlords, the said averments are crucial to assess the various aspects of this case. According to the learned counsel for the petitioner-tenant what is proposed by the landlords is really putting up a new building for the purpose of the business of respondents 4 and 5 (petitioners 5 and 6 in the eviction petition). ## **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` ## **-:6:-** 7. On reading through the entire pleadings of the landlords in the rent control petition, we find that the plea is not to have demolition of the existing building, reconstruct it and then occupy it for the purpose of petitioners 5 and 6 therein. The pleadings will indicate that the bona fide need is pleaded in the light of the fact that petitioners 5 and 6 therein are already tenants doing business elsewhere and they are paying heavy rent also. Therefore, in that context, it is stated that if the building is vacated, it will be convenient for them to conduct business in the petition schedule building. This will bring out a necessary plea for eviction under Section 11 (3) of the Act. As far as the proposal to construct the new building is concerned, what we find from the pleadings in the eviction petition is that the landlords have indicated that even though an application for construction of new building was put in by the landlords in a rear side plot, the same was rejected for want of way to the site of the building proposed to be constructed. We find from a reading of the evidence of PW1 that the Plan and Licence sought were with respect to a plot having 11.6 cents ## **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` ## **-:7:-** which is lying on the rear side of the petition schedule building. It appears that there is no direct entry to that plot. It is submitted by the learned counsel for the landlords that the application for permit was rejected by the Municipality only because of the absence of a convenient way to that plot. Therefore, strictly, the Plan and Licence sought were not for the purpose of the reconstruction of the present building but with regard to the proposal of putting up a new building in 11.6 cents lying on the rear side of the petition schedule building. The question of reconstruction of the petition schedule building is mentioned only in connection with the averment that if the tenant finds it difficult to get any vacant building in the locality to shift his business, at any point of time, when the landlords put up a new building in the plot where the petition schedule building is situated, they are prepared to let out one or two rooms on fixation of rent at the prevailing market rate. This was also made conditional that the same will be done only if the court so directs. ## **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` **-:8:-** 8. Actually, going by the relief portion of eviction petition, the relief is sought under Sections 11(3) as well as 11(4)(i) of the Act and not under Section 11(4)(iv) of the Act. In that view of the matter, even though the Rent Control Court has sought to reject the ground for eviction under Section 11(4)(iv) of the Act, that was evidently in the absence of Plan and Licence from the Municipality for construction of a building on the rear side of the petition schedule building. The pleas under Sections 11(3) and 11 (4)(iv) of the Act are not so intertwined as contended by the learned counsel for the petitioner. Therefore, the ground pleaded under Section 11 (3) of the Act can survive independent of Section 11(4)(iv) of the Act. Hence, we reject the said contention. 9. As far as the plea under Section 11(3) of the Act is concerned, it is in evidence that respondents 4 and 5 (petitioners 5 and 6 in the rent control petition) are conducting business, namely, Jewellery business elsewhere paying rent. Shri Rajesh R.Kormath learned counsel for the petitioner-tenant submitted that for Jewellery business, modern facilities ## **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` ## **-:9:-** will have to be provided by the landlords. Therefore, being an old building, unless a new structure is put up, they will not be able to do business. In the chief affidavit, PW3 has stated in the final portion that if the petition schedule building is got evicted, it is possible to repair the building by providing additional facilities. According to us, the same will definitely support the pleas raised by the landlords, as it is well settled that a landlord who is seeking eviction under Section 11(3) of the Act is entitled to reoccupy the same after undertaking necessary repairs or even renovation. Therefore, on that score also, we find that the argument raised by the learned counsel for the petitioner-tenant cannot hold good. 10. Both the authorities have found the plea under Section 11(3) of the Act in favour of the respondents. Shri Rajesh R.Kormath, learned counsel appearing for the petitioner submitted that as far as dependency and other aspects are concerned, there is no positive evidence. Learned counsel for the landlords Shri M.A.Abdul Hakhim submitted that respondents 4 and 5 have stated that they are doing Jewellery business ## **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` **-:10:-** elsewhere and they want to occupy the petition schedule building. There is no evidence in the case to prove that they are having their own building elsewhere and PW1 has clearly stated that the fourth respondent (fifth petitioner in the rent control petition) is residing with him and is depending on him. As far as the aspect of dependency is concerned, even going by the main part of Section 11(3) of the Act, a landlord can seek eviction for his own occupation or for the occupation by any member of his family dependent on him. It is well settled that dependency is not financial dependency. Herein, there is no plea that the landlords or others, namely, petitioners 1 to 4 in the eviction petition and petitioners 5 and 6 therein who depend upon them for the building, have got any other vacant building for occupation of their own. Hence we find that the said plea cannot be also accepted. Therefore, even though the learned counsel for the petitioner relied upon the decision of the Apex Court in Koyilerian Janaki and others v. Rent Controller (Munsiff) Cannanore and others [(2000) 9 SCC 406] to **R.C.R.No.292/201** **`3 & C.O.No.99/2013`** ## **-:11:-** contend that evidence is lacking in this case on this score, we cannot agree. 11. One of the points raised by the learned counsel for the petitioner is that there is no separate finding by the Appellate Authority regarding the two limbs of the second proviso to Section 11(3) of the Act. As far as the said aspect is concerned, the Rent Control Court in the internal page 33, namely, page 68 of the paper book has considered the aspects concerning the second proviso to Section 11(3) of the Act. It was found that the tenant has failed to establish by cogent evidence both the limbs of the second proviso. It was also found that the first respondenttenant therein, namely, the petitioner herein has not discharged the burden of proving the second proviso. True that there is no separate discussion of the same in the order passed by the Appellate Authority. We are of the view that there is a clear finding by the Rent Control court and there is no contra evidence to interfere with the same. We will not be justified in sending back the matter again to the Appellate Authority for entering a ## **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` **-:12:-** finding on it. It is well settled that the burden is on the tenant to prove both the limbs of the second proviso. The finding rendered by the Rent Control Court will show that the tenant has not discharged the burden to prove the same also. Therefore, we reject the said contentions also. 12. We grant time upto 31/05/2014 for the tenant to put the landlord in possession of the building, subject of course to terms and conditions:- In the result, (a) This Rent Control Revision is dismissed. Cross Objection is closed. (b) The petitioner will file an affidavit unconditionally undertaking to vacate the petition schedule premises on or before 31/05/2014 before the Execution Court or the Rent Control Court as the case may be . (c) The affidavit as directed above will be filed within a period of one month. **R.C.R.No.292/201** **`3`** ``` & C.O.No.99/2013 ``` ## **-:13:-** (d) The arrears of rent, if any, will be paid to the landlord within a period of one month. (e) He will continue to pay the same monthly rent for use and occupation till the vacant possession is handed over. It is made clear that if any of the above conditions are violated, the petitioner will not be entitled to the benefit of this order. Sd/- ## **(T.R. Ramachandran Nair, Judge)** Sd/- ## **(B.Kemal Pasha, Judge)** ms \\True copy// P.S. to Judge