## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN**
**WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939**
**RCRev..No. 194 of 2015 (E) --------------------------**
**AGAINST THE JUDGMENT IN RCA 13/2011 of III RENT CONTROL APPELLATE AUTHORITY, PALAKKAD DATED 11-6-2015**
**AGAINST THE ORDER IN RCP 25/2010 of RENT CONTROL COURT/ PRL.MUNSIFF COURT, PALAKKAD DATED 18.1.2011**
**REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS: ---------------------------------------------**
**1. RAJAKUMARAN NAIR, AGED 62 YEARS, S/O.PADMANABHAN NAIR, PROPRIETOR OF PHILIPS ARENA, SHOT BUILDING NO.39/56, GANDHI BAZAR ROAD, PALAKKAD.**
**2. VENI RAJAKUMARAN NAIR,**
**W/O.RAJAKUMARAN NAIR, -DO- -DO-**
**BY ADVS.SRI.T.KRISHNANUNNI (SENIOR) SRI.SAJU.S.A SRI.VINOD RAVINDRANATH SMT.MEENA.A. SRI.K.C.KIRAN SRI.M.DEVESH**
## **RESPONDENT(S)/RESPONDENT/PETITIONER:**
**------------------------------------**
**NOORJAHAN VAHAB, AGED 65 YEARS, W/O.ABDUL WAHAB(LATE), HOUSE NO.39/355 TAILOR STREET, KOPPAM, AMSOM, PALAKKAD TALUK, PIN 678001**
## **BY ADV. SRI.ZAKEER HUSSAIN**
**THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **OKB**
## K.HARILAL & P. SOMARAJAN, JJ.
---------------------------
R.C.R. No.194 of 2015 --------------------------Dated this the 9[th] day of August, 2017
## O R D E R
## **Harilal, J.**
The revision petitioners are the tenants against whom an order of eviction has been passed concurrently under Section 11(3) and 11(4)(5) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”). According to the landlady, the petition schedule building is required for starting a computer training institute for her son-in-law, who is a Computer Engineer by profession. Secondly, it was averred that the tenants ceased to occupy the petition schedule building for the last more than one year. The tenants resisted the claim for eviction on both grounds contending that bona fide need projected in the petition is a pretext for eviction only and denied the
RCR.194/15-E **:2:**
allegation that they ceased to occupy the petition schedule building for more than one year. That apart, the tenants contended that the Rent Control Petition itself was not maintainable as it was hit by Section 11(9) of the Act. The trial court rejected all the contentions raised by the tenants, after appreciating the evidence on record and, in appeal, the Appellate Authority confirmed the findings of the Rent Control Court and dismissed the appeal.
2. In this revision, challenging the legality and propriety of the concurrent findings of the courts below, Shri T. Krishnanunni, the learned counsel for the tenants advanced arguments contending that the courts below went wrong by finding that the Rent Control Petition was not hit by Section 11(9) of the Act. Further, it is contended that the landlady failed to prove the bona fides of the need and the cessation of occupation for the last more than six months.
3. Per contra, the learned counsel for the landlady
RCR.194/15-E **:3:**
advanced arguments to justify the concurrent findings whereby the courts below rejected all the contentions raised by the tenants.
4. The first question to be considered is, whether there is any illegality or impropriety in the finding that the Rent Control Petition was not hit by Section 11(9) of the Act. According to the tenants, the tenure of the lease agreement dated 25/02/2005 is for six years and it would expire only on 24/02/2011. Therefore, the landlady is not entitled to apply for eviction before the expiry of the term fixed under the lease agreement as the petition is hit by Section 11(9) of the Act. The learned counsel further contended that apart from the lease agreement, the landlady herself admitted in her oral evidence that the term of lease was for six years from 25/02/2005. Therefore, in view of her own admission in her oral evidence, it cannot be contended that the lease agreement was not enforcible for want of registration.
RCR.194/15-E **:4:**
5. Going by the impugned judgment under challenge, it is seen that the Appellate Authority has placed reliance, on the decision of this Court in **Ahammed v. Krishnalal [2005 (3) KLT 1004]** to arrive at a finding that the Rent Control Petition is not hit by Section 11(9) of the Act. So, the question to be considered is, can the courts below be justified in placing reliance on the aforesaid decision for arriving at a conclusion that the Rent Control Petition is not hit by Section 11(9) of the Act. In
**Ahammed v. Krishnalal [2005 (3) KLT 1004]** this Court held as follows:
“Merely because the petitioner in the Rent Control Petition is a transferee from the earlier landlord, the lease in favour of the tenant for ten years without registered document will not become an enforceable transaction. To hold so will be to defeat the provisions contained in S.107 of the Transfer of Property Act and S. 17 and S.49 of the Registration Act. If the original
RCR.194/15-E **:5:**
landlords were not bound by the term of the lease deed as it was not a registered document, the transferee also cannot be bound to do so. The tenant is not entitled to enforce the term in the lease deed for a lease of the property for more than one year when the document was not registered and that he cannot claim the benefit of S. 11(9) of the Act on that basis.”
6. In the instant case, it is the case of the tenants that the landlady herself admitted, in her oral evidence, that the term of lease arrangement was for six years from 25/02/2005. Therefore, in view of the aforesaid admission, non-registration of the rental agreement is of no consequence at all. We are unable to agree with the said argument, because, in the above decision, this Court specifically held that the tenants are not entitled to enforce the term in the lease deed for a lease of the property, for more than one year, when the document was
RCR.194/15-E **:6:**
not registered and that the tenants cannot claim benefit under Section 11(9) of the Act on that basis. In the instant case, the tenants themselves admitted that the tenancy has commenced under the lease agreement dated 25/02/2005. Therefore, even if that rent deed was not produced before the court, the tenants cannot turn round and disown the execution of the rent deed.
7. It is pertinent to note that the tenants have no case that the tenancy has commenced under any oral lease arrangement for six years. So long as the tenants themselves admit the execution of the written lease agreement dated 25/02/2005, the non-registration is fatal and tenants cannot enforce the term in the lease deed as it was not registered. Therefore, we concur with the findings of the courts below under Section 11(9) of the Act, in view of the above decision.
8. Coming to the bona fides of the need, the courts below concurrently placed reliance on the oral testimony
RCR.194/15-E **:7:**
of P.Ws.1 and 2 landlady and the dependent, for whom the petition schedule building was required. This Court is not inclined to re-appreciate the oral testimony of P.Ws.1 and 2 in exercise of revisional jurisdiction. We do not find any kind of perversity in the appreciation of evidence from which the courts below concurrently arrived at a finding that the need projected in the Rent Control Petition is a bona fide one. As regards the protection under the second proviso to Section 11(3) of the Act, the courts below concurrently found that the tenants miserably failed to discharge the burden of proof under the proviso. In view of the concurrent findings of the courts below, we are not inclined to interfere with the findings of the courts below, under the second proviso to Section 11(3) of the Act.
9. Coming to the findings under Section 11(5) of the Act, the courts below found that the landlady has successfully discharged the initial burden of proof. But, the tenants failed to rebut the evidence adduced by the
RCR.194/15-E **:8:**
landlady. The learned counsel for the revision petitioners/tenants have drawn our attention to the commissioner's report in detail. But, the cumulative effect that can be drawn from the commission report is that the tenants failed to occupy the building for a long period. The commission report is further supported by the admission made by the tenants in the counter statement and cross examination. In cross examination, they admitted that they could not conduct business regularly in the petition schedule business, since March 2009. In view of the commission report and the admission made by the tenants in the counter statement and in their oral testimony, we are of the opinion that the burden was heavy on the tenants to rebut the evidence adduced by the landlady. But no evidence has been produced to prove that they had conducted any business in the petition schedule building for six months immediately before the filing of the Rent Control Petition. Further, we find that if they had
RCR.194/15-E **:9:**
conducted any business in the petition schedule building during that period, certainly they could have adduced documentary evidence to prove the transaction during the period of six months. Thus, the evidence adduced by the landlady stands unchallenged.
10. In the above analysis, we do not find any reason to interfere with the concurrent findings of the courts below under Section 11(5) of the Act. Consequently, this Rent Control Revision is dismissed. No costs.
11. Having regard to the entire facts and circumstances of the case, the revision petitioners/tenants are given six months' time from today to vacate the petition schedule building, on the following conditions.
(1). The revision petitioners/tenants shall file affidavits, 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 building within six months from today.
RCR.194/15-E **:10:**
(2). The revision petitioners/tenants shall deposit entire arrears, if any, within one month, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay 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 respondent/landlady will be at liberty to proceed with the execution of the eviction order.
Sd/-
K.HARILAL, Judge.
Sd/P.SOMARAJAN, Judge.
okb.
