Rangmoni v. Junaitha and others (RCRev.No.26 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** **RCRev..No.26 OF 2020** **AGAINST THE JUDGMENT IN RCA 5/2018 DATED 18-11-2019 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA** **AGAINST THE ORDER IN RCP 10/2014 OF MUNSIFF COURT,KAYAMKULAM** ## **REVISION PETITIONER/APPELLANT/1ST COUNTER PETITIONER:** **RANGMONI AGED 60 YEARS S/O. PURUSHOTHAMAN, KUTHUVELIL VEEDU (REVATHY),ARAYD THEKKUM VILLAGE, ARYAD PANCHAYATH, ALAPPUZHA DISTRICT** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE** ## **RESPONDENTS/RESPONDENTS/PETITIONERS7 COUNTER PETITIONERS 2 TO 8:** **1 JUNAITHA D/O. AZIM MUHAMMED ANSARI, KUNNUVILAYIL VEEDU, KUMARAPURAM MURI,KUMARAPURAM VILLAGE, KARTHIKAPPALLY TALUK-683 565** **2 REHUMATH AGED 39 YEARS D/O. AZIM MUHAMMED ANSARI, KOLANTAYYATHU VEEDU,ERUVA PANDINJARU, PATHIYOOR VILLAGE-690 106** **3 RAZIYA BEEGAM AGED 37 YEARS D/O. AZIM MUHAMMED ANSARI, MOIDEENTANGU VEEDU, PERINGALA MURI, KAYAMKULAM VILLAGE-683 565** **RCRev.No.26 OF 2020** **2** - **4 SARASAMMA** **AGED 79 YEARS** **W/O. PURUSHOTHAMAN, KUTHUVELIL VEEDU, ARYAD THEKUUM VILLAGE, ARYAD PANCHAYATH ,ALAPPUZHA DISTRICT-688 521** - **5 RAJASEKHARAN** **AGED 56 YEARS** **S/O. PURUSHOTHAMAN, KUTHUVELIL VEEDU, ARYAD THEKUUM VILLAGE, ARYAD PANCHAYATH ,ALAPPUZHA DISTRICT-688 521** - **6 RAMESAN** - **AGED 54 YEARS** **S/O. PURUSHOTHAMAN, KUTHUVELIL VEEDU, ARYAD THEKUUM VILLAGE, ARYAD PANCHAYATH , ALAPPUZHA DISTRICT-688 521** - **7 REMADEVI,** **AGED 52 YEARS** **D/O. PURUSHOTHAMAN, KUTHUVELIL VEEDU, ARYAD THEKUUM VILLAGE, ARYAD PANCHAYATH , ALAPPUZHA DISTRICT-688 521** - **8 RENUKADEVI AGED 49 YEARS** **D/O. PURUSHOTHAMAN, KUTHUVELIL VEEDU, ARYAD THEKUUM VILLAGE, ARYAD PANCHAYATH ,ALAPPUZHA DISTRICT-688 521** - **9 RENJITHA AGED 47 YEARS** **D/O. PURUSHOTHAMAN, KUTHUVELIL VEEDU, ARYAD THEKUUM VILLAGE, ARYAD PANCHAYATH ,ALAPPUZHA DISTRICT-688 521** ## **10 RESHMI AGED 45 YEARS** **D/O. PURUSHOTHAMAN, KUTHUVELIL VEEDU, ARYAD THEKUUM VILLAGE, ARYAD PANCHAYATH ,ALAPPUZHA DISTRICT-688 521** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev.No.26 OF 2020** **3** ## **ORDER** The revision petitioner is the appellant in RCA No.5/2018 on the file of the Rent Control Appellate Authority (in short “Appellate Authority”), Mavelikara. The respondents in this revision petition were the respondents in the above appeal. 2. This revision petition is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Kayamkulam in RCP No.10/2014. The parties are for the sake of convenience, referred to as per their litigate status in the rent control petition (in short RCP) as 'petitioners' and 'counter petitioners'. 3. The petitioners had filed the RCP against the counter petitioners, inter alia, pleading as follows:- The petitioners predecessor in interest had let out item No.1 petition schedule shop room (for brevity hereinafter referred to as 'shop room') **RCRev.No.26 OF 2020** **4** to the predecessor in interest of the counter petitioners. After the predecessor in interest of the counter petitioners expired, his son – the 1[st] counter petitioner continued to conduct an auto electric workshop in the shop room. The counter petitioners 1 to 3 are the legal representatives of the erstwhile deceased tenant. The predecessor in interest of the petitioners-Sri. Azeem Mohammed Ansari purchased item 2 shop room as per sale deed No.29/1978 of the Kayamkulam Sub-Registry Office. Subsequently, he also acquired item nos.1 and 3 shop rooms as per gift deed No.3368 of the same Sub-Registry Office. The monthly rent for the shop room was initially fixed at Rs.175/-, which was subsequently enhanced to Rs.500/-. The erstwhile deceased tenant sub-let the north east portion of item no.1 shop room to a third person. A separate suit was filed seeking eviction on the ground of sub-lease. During the pendency of the litigation, **RCRev.No.26 OF 2020** **5** the erstwhile landlord settled the three shop rooms in favour of the petitioners. The 1[st] petitioner was settled with item no.1 shop room, the 2[nd] petitioner, item no.2 shop room and the 3[rd] petitioner, item no.3 shop room. Thus, the petitioners from the date of execution of the settlement deed, became the owners of the shop rooms. As per the settlement deed, certain portions of the shop rooms overlapped with each other. The erstwhile deceased landlord had filed RCP 5/1997, to evict the erstwhile tenant from item no.1 shop room but the same was dismissed on technical grounds. Subsequently, the 1[st] petitioner along with the petitioners 2 and 3 demanded the counter petitioners to surrender vacant possession of item no.1 shop room, for the 1[st] petitioner to start a business in kids wear-cum-toy shop. However, the counter petitioners sent a reply raising untenable contentions. Accordingly, the **RCRev.No.26 OF 2020** **6** petitioners jointly filed the RCP against the counter petitioners seeking eviction of the item no.1 shop room, for the bona fide need of the 1[st] petitioner. The 1[st] petitioner asserted that she has no other building except the item no.1 shop room. She also averred that the counter petitioners have defaulted payment of rent since August, 2008 onwards. Thus, the RCP seeking eviction of the counter petitioners from item no.1 shop room. 4. The counter petitioners 2 to 8, though were served with summons, chose not to contest the proceedings. They were set ex-parte. 5. The 1[st] counter petitioner filed a written objection, inter alia, pleading as follows:- The allegations in the RCP are false. The counter petitioners 2 to 8 are unnecessary parties. The counter petitioners' predecessor in interest, Sri. Purushothaman, had taken item no.1 shop room from Sri.Peer Muhammed in the year 1939 on a **RCRev.No.26 OF 2020** **7** monthly rent of Rs.10/-. From then on, they have been conducting electrical motor repairing in the shop room. The said person continued business till 7.10.2006. The rent was enhanced on several occasions, and at present the rent is Rs.500/-, per month. The 1[st] counter petitioner has promptly paid the rent without any default. Consequent to the death of Sri.Purushothaman, the counter petitioners 2 to 8 gave consent to the 1[st] counter petitioner to conduct his business in the shop room. Accordingly, the 1[st] counter petitioner obtained licence from the Kayamkulam Municipality and the Assistant Labour Officer. RCP 5/1997 filed by the predecessor in interest of the petitioners is pending before the same court. As the shop rooms are overlapping with each other, there are inter-party disputes between the petitioners. Some middle men have instructed the 1[st] counter petitioner not to pay the rent, till the **RCRev.No.26 OF 2020** **8** disputes between the petitioners are settled. Thereafter, the 1[st] petitioner has not demanded rent from the 1[st] counter petitioner. The shop room No.KMC XXXII/182 has three co-owners. The RCP is not filed seeking eviction of the 1[st] counter petitioner from the portion of the shop room which belongs to the 1[st] petitioner alone. As there is a dispute regarding the title and ownership of the 1[st] petitioner over the shop room, the same has to be referred to the Civil Court as provided under Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'Act'). The earlier RCP was dismissed. Hence the present RCP is not maintainable. The 1[st] petitioner does not require the building for her bona fide need. She has no intention to start the business. The 1[st] counter petitioner is eking out his livelihood from the business being conducted in the shop room. There are no other shop rooms available in the **RCRev.No.26 OF 2020** **9** locality or in the surroundings for shifting the business. The 1[st] counter petitioner has not defaulted payment of rent as alleged in the RCP. Hence the RCP may be dismissed. 6. Pending the RCP, the 1[st] counter petitioner deposited the entire arrears of rent before the Rent Control Court. Accordingly, the Rent Control Court did not consider Section 11(2) of the Act as a ground. The only point that was considered by the Rent Control Court was whether the petitioners were entitled for an order of eviction under Section 11(3) of the Act. 7. PW1 to PW5 were examined on the side of the petitioners. Exts.A1 to A7, Exts.C1 to C2(a) and Exts.X1 to X4 were marked on the side of the petitioners. DW1 and DW2 were examined on the side of the 1[st] counter petitioner and Exts.B1 and B2 were marked through PW1. 8. The Rent Control Court after evaluating **RCRev.No.26 OF 2020** **10** the pleadings and evidence on record allowed the RCP by ordering eviction of the counter petitioners from item no.1 shop room under Section 11(3) of the Act. 9. Aggrieved by the impugned order passed by the Rent Control Court, the 1[st] counter petitioner preferred RCA 5/2018 before the Appellate Authority. The Appellate Authority by the impugned judgment dated 18.11.2019 dismissed the appeal, confirming the order of eviction passed by the Rent Control Court under Section 11(3) of the Act. 10. It is aggrieved by the judgment passed in RCA No.5/2018 and the order in RCP No.10/2014 that this Rent Control Revision is filed. 11. Heard Sri.A.R.Dileep, the learned counsel for the revision petitioner. 12. The learned counsel for the revision petitioner principally argued two points before this **RCRev.No.26 OF 2020** **11** Court. According to him, even though the RCP was filed seeking eviction of the item no.1 shop room, there is conspicuous absence of specific pleadings that the 1[st] petitioner was seeking eviction of item no.1 shop room. Similarly, the learned counsel also argued that no special reasons were mentioned by the petitioners for not occupying the shop room, which was subsequently, found in their possession. He relied on the decisions of this Court in Antony P.V v. M/s.Swastik Sweet House and Others [2017 (2) KHC 951 (DB)] and Mohanan v. M.I.Paul [2018 (5) KHC 22] to drive home his contentions that, due to the lack of pleadings stating special reasons for nonoccupation of the vacant shop room, the same is fatal to the petitioners. He also argued that the courts below have not appreciated the pleadings and evidence on record in its proper perspective. Therefore, the impugned order and judgment **RCRev.No.26 OF 2020** **12** passed by the courts below were illegal, irregular and improper, and thus liable to be set aside. He contended that this rent control revision be allowed by setting aside the judgment and order passed by the courts below. 13. The question that arises for consideration in this revision petition is whether there is any illegality, irregularity or impropriety in the order and judgment passed by the courts below ordering eviction of the counter petitioners from the shop room under Section 11(3) of the Act. 14. It is trite law that this Court while exercising its revisional jurisdiction under Section 20 of the Act is not permitted to re-appreciate the entire pleadings and evidence on record as an appellate court. Therefore, we are considering the arguments of the learned counsel for the revision petitioner that the courts below have not considered the aforementioned two contentions. **RCRev.No.26 OF 2020** **13** We have for considering the above arguments evaluated the pleadings and evidence . 15. It is an undisputed fact that the revision petitioner is a tenant of the counter petitioners. The first cardinal contention that the shop rooms are jointly owned by the petitioners and, therefore, the petitioners ought to have specifically pleaded in the RCP that the 1[st] petitioner bona fide needs the shop room for her own bona fide need. We are unable to agree with the said argument because the petitioners have jointly filed the RCP. They have categorically pleaded that the 1[st] petitioner needs the shop room to start a kids wear-cum toy shop. It is also pleaded that the petitioners 2 and 3 have no objection in the 1[st] petitioner seeking an order of eviction of the counter petitioners from the shop room. The fact that the petitioners have jointly filed the RCP establishes that, even if there is or interest of the any overlapping right **RCRev.No.26 OF 2020** **14** petitioners over the three shop rooms, the same is of no significance because they have on mutual consensus, consciously taken a decision, that the counter petitioners should be vacated from item no.1 the shop room, for the 1[st] petitioner to commence the proposed business. The argument that there is inter-party disputes between the petitioners, therefore, cannot be taken on its face value, particularly when the petitioners have not pleaded of such a dispute, instead they have in unison filed the RCP. Thus, the said argument is found against the revision petitioner. 16. The next contention that was argued was that, the petitioners had suppressed the fact that the 1[st] petitioner had in her possession a vacant shop room. It was only during the crossexamination that she admitted the said aspect. Thus, for the lack of pleadings regarding special reason for not occupying the vacant shop room, the **RCRev.No.26 OF 2020** **15** same is fatal to the petitioners. 17. We have meticulously gone through the pleadings and evidence with regard to this contention. 18. The 1[st] petitioner who was examined as PW1 had categorically deposed that on 3.4.2012, Sri. Abdul Hai was evicted from the shop room and that from then on she is in possession of the same. However, since the eviction proceeding in respect of item no.1 shop room is sub judice, she temporarily let out the said shop room to another person to run an outlet of Pathanjali. The said tenant was examined as PW4. The tenant in unequivocal terms deposed that he has undertaken to the 1[st] petitioner, that he would surrender vacant possession of the shop room at any time the 1[st] petitioner demands him for the same. PW1 admitted that she had not specifically pleaded that the above shop room was in her possession and **RCRev.No.26 OF 2020** **16** subsequently given on rent to PW4. It is pertinent to point out that the 1[st] counter petitioner- revision petitioner had not pleaded that the RCP is hit by the 1[st] proviso to Section 11(3) of the Act, as argued before this Court. 19. This Court in **San Varghese vs Avira Pappu [2013 (2) KLT SN 136 (Case No.173)]** has held that portions of a building which have been let out to tenants on an undertaking that they will surrender vacant possession of the building will not entitle the tenant to claim that the RCP is hit by the first proviso to Sec.11(3) of the Act. 20. In addition to the evidence of PW4, it is admitted by DW1 in his cross-examination that the shop room on the east bearing No. 183 is smaller than the shop room in his possession. Hence, the area is not sufficient for the first petitioner to start the proposed business. Therefore, the petitioners have given special reasons for the non-occupation **RCRev.No.26 OF 2020** **17** of the shop room temporarily occupied by PW4. 21. It was also argued that PW1 had suppressed the fact about the shop room is in possession of PW4. 22. It is trite law as held by this Court in **P.A Sindhu vs Aboobacker Haji [2002 KHC 583]** that the landlord need not explain the circumstances and special reasons before the Rent Control Court. It is only when it is established by the tenant that the landlord has other buildings of his own, need the landlord assign special reasons for not occupying the shop room. 23. In the case on hand, PW1 when crossexamined had deposed that the shop room is given on rent to PW4. By the examination of PW4 and the convincing special reasons given by PW1 for not occupying the said shop room, we are convinced of the special reasons assigned by the petitioners for non-occupation of the shop room. **RCRev.No.26 OF 2020** **18** Thus, we hold that the RCP is not hit by the first proviso to Sec.11(3) of the Act. 24. Coming to the second proviso to Sec.11(3) of the Act, the first respondent deposed that there are no other rooms available in the locality for him to shift his business. He examined DW2- the accommodation controller, to prove the said aspect. DW2 had testified that there are no vacant rooms as per his register within Kayamkulam Municipality that are lying vacant. 25. This Court in **Varghese Eapen vs Varghese [2001 (20 KLT 263]** has held that the records of the accommodation controller is not the final word as far as shop rooms that are lying vacant in a locality. It is common knowledge that the duty is discharged by committing breach and not by complying with it. The mere fact that the accommodation controller has reported that there are no vacant buildings lying in the locality, it does **RCRev.No.26 OF 2020** **19** not mean that the tenant's case has to be accepted. If there is other evidence to prove that the buildings are lying vacant, it is the duty of the tenant to establish that those buildings are actually not vacant or those buildings are not suitable for his purpose. 26. Further, this Court in **Thanuja Sunderdas vs Sisirkumar Raj [2008 (4) KLT** **248]** has held that a mere assertion by the tenant that there are no other suitable buildings in the locality is not sufficient for shifting the onus of proof. 27. It is an admitted fact that the first counter petitioner has not proved that the shop rooms suggested by the first petitioner, in his crossexamination are not suitable for his business. His version is that, there are no other rooms available in the locality for him to shift his business. The said assertion cannot be accepted in view of the **RCRev.No.26 OF 2020** **20** law laid down in **Varghese Eapen and Thanuja Sunderdas** (supra). In view of the aforesaid findings, we are also convinced that the revision petitioner/first counter petitioner is not entitled to protection of both the limbs under the second proviso to Sec.11(3) of the Act. 28. In light of the materials available on record, principally, the oral testimonies of PWs 1 to 5 , DW1 and DW2, Exts A1 to A7, Exts B1 and B2, Exts C1 to C2(a) and Exts X1 to X4, we are of the opinion that the courts below have rightly come to the conclusion that the first petitioner is entitled for eviction of item No.1 shop room located as 'GHIQPOSTUVRDEG' in Ext C2 (a) plan. Thus, we confirm the concurrent findings of the courts below, in respect of the order of eviction passed under Sec.11(3) of the Act. 29. In the totality of the facts and circumstances of the case, the pleadings and **RCRev.No.26 OF 2020** **21** evidence on record, we have no doubt in our mind that the Rent Control Court as well as the Rent Control Appellate Authority have rightly ordered the eviction of the respondents under Sec.11(3)of the Act. Therefore, we confirm the findings of the courts below in RCA No. 5/2018 and RCP No.10/2014. 30. At the said point of time, the learned counsel appearing for the revision petitioner prayed for one years' time to vacate the building. Taking into consideration the fact that the RCP was filed in the year 2014 and the impugned order was passed on 15.3.2018, and subsequently, the rent control appeal was filed in the year 2018, we feel that the revision petitioner has got sufficient time to vacate the building. Having regard to the facts and circumstances of the case, we deem it appropriate to grant the revision petitioner six months' time to vacate the building on the **RCRev.No.26 OF 2020** **22** ## 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 he will vacate the petition schedule shop room within six 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 stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. Sd/-K.HARILAL, JUDGE ma/sks/4.2.2020 Sd/-C.S.DIAS, JUDGE /True copy/ P.S to Judge **RCRev.No.26 OF 2020** **23**