Raghunath v. Abdul Salam and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 28TH DAY OF NOVEMBER 2017 / 7TH AGRAHAYANA, 1939** **RCRev..No. 385 of 2017** **AGAINST THE JUDGMENT IN R.C.A.NO. 86/2016 OF THE RENT CONTROL APPELLATE AUTHORITY-II/II ADDITIONAL DISTRICT COURT, KOZHIKODE, DATED 07.07.2017** **AGAINST THE ORDER IN R.C.P.NO. 148/2014 OF THE RENT CONTROL COURT/ THE ADDITIONAL MUNSIFF COURT-I, KOZHIKODE, DATED 22-12-2015** **------------** ## **REVISION PETITIONER/APPELLANT/RESPONDENT IN RCP :** **RAGHUNATH, AGED 49 YEARS, S/O.BALAKRISHNAN, RAGHU NIVAS, PUTHIYANGADI P.O., PUTHIYANGADI AMSOM, EDAKKAD DESOM, KOZHIKODE TALUK, PIN: 673 005, REPRESENTED BY HIS P.A.HOLDER AND SON, SANJAY R.NATH, AGED 23 YEARS, MANNATHAM POYIL THAZHAM, PUTHIYANGADI VILLAGE, EDAKKAD DESOM P.O., EDAKKAD, KOZHIKODE 673 005.** **BY ADVS.SRI.P.T.MOHANKUMAR SRI.SHYAM PADMAN** **SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR SMT.NEETHU RAVIKUMAR SMT.REVATHY P. MANOHARAN** ## **RESPONDENT(S)/RESPONDENTS/PETITIONERS IN RCP:** **1. ABDUL SALAM, AGED 36 YEARS, S/O.MAIDU, BUSINESS, EDAKKUDI HOUSE, THIRUVALLUR AMSOM DESOM, THIRUVALLUR P.O., VADAKARA TALUK, KOZHIKODE DISTRICT 673 541.** **..2/-** **..2..** ## **RCRev..No. 385 of 2017** **2. NEELIYATH SALMA, AGED 57 YEARS, W/O.MOOSSA, OWN AFFAIRS, MELE ARYOTT HOUSE, MEMUNDA AMSOM AND DESOM, MEMUNDA P.O., VADAKARA TALUK, KOZHIKODE DISTRICT- 673 104.** **3. NEELIYATH AYISU, AGED 61 YEARS, W/O.MOIDUA, OWN AFFAIRS, EDAKKUDI HOUSE, THIRUVALLUR AMSOM AND DESOM, THIRUVALLUR P.O., VADAKARA TALUK, KOZHIKODE DISTRICT - 673 541.** **RESPONDENTS 1 TO 3 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, KANNANKURUNGOTTU MOIDU, S/O.MOOSA HAJI, AGED 62 YEARS, BUSINESS RESIDING AT KORANIYIL HOUSE, THIRUVALLUR AMSOM AND DESOM, THIRUVALLUR P.O., VADAKARA TALUK, KOZHIKODE DISTRICT- 673 541.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Msd.** ## **K.HARILAL & ANU SIVARAMAN, JJ.** ## **----------------------------------------------R.C.R.No. 385 of 2017 ----------------------------------------------Dated this the 28[th] day of November, 2017** ## **O R D E R** ## _**Harilal, J.**_ Revision petitioner is the tenant, who suffered an order of eviction passed concurrently by the courts below under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act'). The landlords, three in number, filed four rent control petitions against four tenants claiming an order of eviction under Section 11(3) of the Act on the ground that they _bon afide_ need the four tenanted premises for starting a furniture business. (The parties are referred to as in the Rent Control Petition). According to petitioners 2 and 3, they do not have any avocation or source of income. The 1[st] petitioner is now working abroad and he intends to return, as he is not getting sufficient income from his job abroad and he also intends to join with the other petitioners in the said furniture business to be conducted in the tenanted premises after getting vacant possession of the same. They further contended that they have no other vacant buildings of their own in their _**RCR.385/17**_ 2 possession to start the proposed business and several other vacant buildings are available in the locality to shift the business of the respondents from their tenanted premises. 2. All the respondents raised a common contention that the need projected by the petitioners is a ruse for eviction only. Further, it is also contended that the tenanted premises are not suitable for starting a furniture business and no other vacant buildings are available in the locality for the purpose of shifting the business. According to them, they are all depending upon the income derived from the tenanted premises. They claimed the protection under the second proviso to Section 11(3) of the Act. 3. On the aforesaid pleadings, both parties adduced evidence and on appreciation of evidence, the courts below concurrently found that the need projected in the petition is bona fide and the respondents are not entitled to get a protection under the second proviso to Section 11(3) of the Act. It was also found that the rent control petitions are not hit by the first proviso to Section 11(3) of the Act. The legality and propriety of the concurrent findings of the courts below are challenged in this revision petition. 3 _**RCR.385/17**_ 4. Heard the learned counsel appearing for the revision petitioner. 5. The landlord-tenant relationship is not disputed. The respondent is conducting a stationary business in the tenanted premises. His contention is that the need projected is not a bona fide one. In order to substantiate the said contention, the learned counsel for respondent contends that the landlords are economically very affluent persons and therefore there is no need to start a furniture business for their livelihood. Secondly, it is contended that none of the petitioners have any previous experience in conducting the furniture business. Thirdly, according to the learned counsel for the respondents, the petition schedule shop rooms are not suitable for conducting a furniture business, as they are all small shop rooms. 6. Bona fide need is a state of mind of the landlord and to prove the bona fide of the need the 1[st] petitioner himself was examined as PW1 and he has testified as to bona fides of his need and offered himself for cross examination. After evaluating the oral testimony of PW1 the courts below concurrently held that nothing has been brought out in cross examination to discard the evidence of PW1 and thereby bona fide of the need stands proved in evidence. We do not find any 4 _**RCR.385/17**_ reason to interfere with the said findings. 7. As regards the first contention, the law settled by this Court in _**Kurian v. Sunny John**_ [2016 (2) KLT SN 124] and _**Abdul Rub v. Jobby Tharian**_ [2003(2) KLJ 1035] is that law does not think that impecunious landlord alone can think of starting an income earning activity in order that the need set up will pass through a test of _bona fides_ . Similarly, law does not insist that a landlord having other sources of income shall not carry on or start another income generating activity or venture to start a new business. In view of the law settled in the aforesaid decisions, we find that even if the petitioners are financially very affluent and having other sources of income, that fact is of no consequence at all while considering the _bona fide_ of a need. 8. As regards the lack of previous experience, this Court in _**Kurian Kuriakose v. Usha Cheriyan**_ [2008(1) KLT 739] held that previous experience is not a condition precedent for claiming an order of eviction under Section 11(3) of the Act and the real owners can conduct business through their managers and experienced staff members. In the above view, the courts below are justified in rejecting the said contention also. 9. Further, the respondents contended that the tenanted 5 _**RCR.385/17**_ premises is not suitable for conducting furniture business. But Exhibit C1 report filed by the Commissioner shows that the tenanted premises are suitable for conducting furniture business. That apart, it is not for the tenant to decide the suitability of the building for conducting the business of the landlord and it is for the landlord himself to consider the suitability of the building. In the above analysis, the courts below are justified in finding that the need projected in the petition is a bona fide one. 10. Coming to the first proviso to Section 11(3) of the Act, the respondents have no case that the petitioners have other suitable and vacant buildings of their own in their possession. Even though they contended that the landlords have not proceeded against another tenant, who is occupying a tenanted premises in the first floor of the building, it has come out in evidence that he has agreed to vacate the tenanted premises as and when required. Therefore, the courts below are justified in finding that the rent control petition is not hit by the first proviso to Section 11(3) of the Act. 11. As regards the second proviso, it is the trite law that the burden of proof is on the tenant, but no evidence have been adduced to prove that the respondent is depending on 6 _**RCR.385/17**_ the income derived from the tenanted premises. In this respect, this Court in _**Shahul Hameed A v. P.E.Abdu Razak**_ [2016(5) KHC 820 (DB)] held that no tenant can claim protection under the second proviso after hiding his income. Similarly, no evidence has been adduced to prove the non availability of the vacant buildings in the locality to shift the business from the tenanted premises. On the other hand, the Commissioner's reports which are marked as Exhibits C1 to C4, give much indications that suitable rooms are available in the locality for rent. It is pertinent to note that the tenants have not filed any objection to the Commissioner's reports. Thus, the respondent has miserably failed to discharge the burden of proof under the second proviso to Section 11(3) of the Act. In the above analysis, we find that there is no illegality or impropriety in any of the findings whereby the courts below granted an order of eviction under Section 11(3) of the Act to the petitioners. Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given seven months' time from today to vacate the petition schedule building, on the following conditions: - I. The revision petitioner/tenant shall file an affidavit, within two weeks from the date of 7 _**RCR.385/17**_ 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 shop room within seven months from today. - II. The revision petitioner/tenant shall deposit the entire arrears, if any, within two months from today, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. - III.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 respondent/landlord will be at liberty to proceed with the execution of the eviction order. **K.HARILAL JUDGE** **ANU SIVARAMAN JUDGE** _vgs_