Rasheed C. S/o C.M Hameed v. Madambillath Sainaba

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 29TH DAY OF MARCH 2017/8TH CHAITHRA, 1939** **RCRev..No. 218 of 2016 ()** **-------------------------AGAINST RCA 66/2011 of THE RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT JUDGE-I) THALASSERY DATED 24-03-2014** **AGAINST RCP 22/2009 of RENT CONTROL COURT (MUNSIFF), PAYYANNUR DATED 27-01-2011** **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **--------------------------------------------** **RASHEED C. S/O.C.M HAMEED, C.R BANANA, OPP. KAIRALI HOTEL, PERUMBA, PAYYANNUR P.O TALIPARAMBA TALUK KANNUR DISTRICT** **BY ADV. SRI.M.V.AMARESAN** **RESPONDENT/APPELLANT/PETITIONER:** **-----------------------------------** **MADAMBILLATH SAINABA** **D/O. LATE RAIYA, AGED 49 YEARS, POROPPAD, SOUTH TRIKARIPUR, P.O ELAMBACHI, KASARAGOD DISTRICT PIN 671 311** **R1 BY ADV. SRI.M.SASINDRAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. -----------------------------------------R.C.R. No.218 of 2016** **----------------------------------------Dated this the 29[th] day of March, 2017** ## **O R D E R** **--------------** ## _**Harilal, J.**_ - 1.The petitioner and the respondent are landlord and tenant respectively in the rent control petition. The rent control petition was filed under sections 11(3), 11(4) and 11(4) (iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act'). After considering the evidence on record and in view of the counter statement filed by the respondent, the Rent Control Court dismissed the rent control petition under sections 11(3), 11(4)(ii) and 11(4)(iii) of the Act. The parties are referred to as in the original petition. - 2.Feeling aggrieved, the petitioner preferred an appeal before the Appellate Authority. The Appellate Authority after re-appreciating the evidence on record, allowed the R.C.R. No.218 of 2016 2 petition under section 11(3) of the Act and dismissed the claims under section 11(4)(ii) and 11(4)(iii). Thus the divergent findings of the court below under section 11(3) of the Act have come up for consideration in this revision petition under section 20 of the Act. - 3.According to the petitioner, her son Abdul Nazar was working in Malaysia and he has lost his job and he is depending on the petitioner for the petition schedule shop room to start a grocery shop. The petitioner is not having any other building in her possession for the said purpose. The learned counsel appearing for the petitioner submits that the respondent is not depending mainly upon the income derived from the business in the petition schedule shop room and that other vacant shop rooms are available in the locality. - 4.Per contra, the learned counsel for the respondent would contend that the bona fide need projected in the petition is not genuine. According to the respondent, the petitioner's son Abdul Nazar is not a dependant of the R.C.R. No.218 of 2016 3 petitioner and the averment that he has lost job and he is planing to return to India, is not correct. It is stated that he is conducting plantain sale in whole sale and retail in the petition schedule shop room by availing loan from the bank and he is living out of the income derived from the petition schedule shop room and there are no other suitable buildings in the locality for shifting his business. - 5.The evidence available on record consists of oral testimony of PW1, RW1 and documentary evidence Ext.A1 to A3 and Ext.C1. - 6.Going by the order passed by the trial court, it is seen that the trial court dismissed the claim under section 11(3) mainly on the ground that the petitioner has failed to produce passport oh her son to prove that he has lost his employment abroad and returned to India. But in the appeal, the petitioner has produced the old and new passports of the petitioner's son under Order XLI rule 27 of the Code of Civil Procedure and the same were marked in evidence as Exts.A4 and A5. The learned counsel for R.C.R. No.218 of 2016 4 the respondent contends that the respondent did not get an opportunity to controvert the evidence brought out by Exts.A4 and A5, as the same was produced in appeal court only. Going by the judgment passed by the Appellate Authority, it could be seen that even though Ext.A4 and Ext.A5 were produced and marked in evidence in the appellate court, the appellate court has not relied upon the said passport for reversing the findings of the trial court. According to the appellate court, the trial court is not justified in discarding the claim of bona fide need merely on non production of the passport or the document to show that PW1 has lost his job. It is the case of the petitioner that though her son Abdul Nazar was working abroad he has lost his employment there and even thereafter he has been working temporarily. - 7.We have perused ExtsA4 and A5. Going by Ext.A4 it is seen that, as contended by the petitioner, there is an endorsement by immigration authority that the said Abdul Nazar was employed temporarily in west Malaysia. As R.C.R. No.218 of 2016 5 rightly observed by the Appellate Authority, we are also of the opinion that a person working abroad cannot be insisted to abandon the job and remain in idle awaiting the verdict of the Rent Control Court on his claim for eviction under section 11(3) of the Act particularly when there is an inordinate delay in disposing the rent control petition. - 8.We do not find any reason to doubt his genuineness of Ext.A4 original passport wherein the endorsement referred above is found. Further, no prejudice was caused to the respondent in marking the document particularly when the appellate court has not placed reliance on those documents marked in appeal. Further, the learned counsel appearing for the respondent contended that the petitioner was not examined in evidence to prove the bona fides of the needs and the dependant alone was examined. The non examination of the petitioner is fatal. - 9.In order to substantiate the said contention, the learned counsel for the petitioner relied on the decision of this R.C.R. No.218 of 2016 6 Court in **Bhargavi Amma P. v. K.P.Ajayakumar** (2016 - (1) KHC 347 (DB)) and **Koyilerian Janaki and Others v.** **Rent Controller (Munsiff) Cannanore and Others** - (2009 SCC 406) wherein it is held that the landlord is required to plead and substantiate the three ingredients of section 11(3) of the Act. - 10.We have no doubt in the above proposition. But the satisfaction on the discharge of burden will depend upon the evidence adduced by the parties and it cannot be held that in a case where bona fide need was put forward for the dependant, unless the landlord himself is examined, the burden of proof will not be discharged. - 11.This view is supported by the decision of this Court in **Lakshmi v. Labbah Kunju Ameer Hamsa** (2005 (3) KLT - 627) wherein this court held that examination of the landlord or dependant son is to enable the court to assess objectively the nature of the claim and bona fide of the claim. Further in **Devayani v. Pulickaparambil Hamsa Haji** (1997 KHC 278) the Division Bench of this Court R.C.R. No.218 of 2016 7 while dealing with a claim under section 11(3) of the Act, relying on the decision in **Narasimhachari v. Kanakasabapathi** (1964 (1) MLJ 256), wherein it was ## held as follows: _"When we consider the question whether the landlord requires the building bona fide for his own use, we have to bear in mind whether the premises may be required reasonably and bona fide. It is the duty of the Court to see whether the premises are required both reasonably and bona fide. Bona fides may be proved in an ordinary way like any other fact. There is no such rule of law that bona fides being the subject matter, can only be proved by the petitioner stepping into the witness box. It depends upon the facts and circumstances of each case."_ _Whether bona fide need is established on the basis of the evidence is a question depending upon the facts of each case. In this case because of the specific averments and allegations made in the objection filed by the tenants we are of the opinion that it would have been more appropriate if the landlord's son for whose bona fide need landlord required the building have been examined. But we are not setting aside the above finding under S.11(3) merely on this ground. The tenants specifically pleaded the benefit of second proviso to S.11(3). The above proviso was held not applicable because the son who is a subtenant cannot get the benefit of the above proviso as decided by this Court earlier. Only a tenant can get the benefit of the above proviso. But, we have already found that there is no subtenancy and second petitioner son is the real tenant. The benefit of the second proviso to S.11(3) was considered by the courts below treating mother as the tenant. Since there is no subtenancy as the 2nd petitioner son is the real tenant as already held, whether the benefit of second proviso to S.11(3) is applicable or not has to be decided independently. It was held by the Appellate Authority that mother has not proved that she is exclusively depending on the income from the business conducted in the tenanted property as she has transferred the business to the son and she is not dealing with the same. Since the finding of subtenancy is set aside, question regarding applicability of second proviso to S.11(3) has to be reconsidered. It is contended by the respondent that now the petition scheduled building is closed and no business is being carried on. The matter is to be remanded for independent finding whether second proviso to S.11(3) is attracted; whether the tenant is entitled to get the benefit of the said proviso; whether he is mainly depending upon the income from the business conducted in the tenanted premises and if so, whether suitable alternate accommodation is available etc. are to be considered by the Rent Control Court. As application_ 8 R.C.R. No.218 of 2016 _of second proviso to S.11(3) and present bona fide need have to be considered simultaneously, the entire matter regarding claim for eviction under S.11(3) i.e., bona fide need as well as entitlement of the benefit of second proviso to S.11(3) are to be considered by the Rent Control Court afresh. Both landlord and tenant are free to adduce fresh evidence on these aspects. The landlord also can prove the allegation that the tenanted premises are closed down and therefore, tenant is not mainly depending upon the income from the business conducted in the above premises._ _In the result, we set aside the orders of the courts below and hold that there is no subletting and petitioners (mother and son) cannot be evicted on the ground that mother has sublet the premises to the son. The question of bona fide need and entitlement of the second proviso to S.11(3) are to be reconsidered by the Rent Control Court. Both sides are free to adduce fresh evidence. Whether the landlord is entitled to evict the petitioners under S.11 (3) has to be considered by the Rent Control Court on the basis of the earlier evidence and fresh evidence to be adduced by parties. We direct the Rent Control Court to decide the matter before the Court closes for the mid summer vacation. Parties may appear in Court on 9.12.1996._ _The revision petitions are allowed by remanding the matter. In the circumstances of the case no order as to costs.”_ ## 12.Further in **Subaida v. Krishnan** (1986 KHC 168) this Court held that it is unreasonable to dismiss the rent control petition on the ground that the landlady herself was not examined in court. In the above view, we find that the non examination of the petitioner was not fatal in the instant case. - 13.To prove the bona fide need put forward for the dependant, the dependant himself was examined as PW1 He has given evidence in terms of the averments in the petition. He has deposed that he has lost his job at R.C.R. No.218 of 2016 9 Malaysia and he wants to start a business of grocery in the petition schedule shop room. Even though he was cross-examined touching his employment in Malaysia, there is no finding in the order passed by the Rent Control Court that his original evidence is not believable or that no reliance can be placed on it. After re-appreciating the oral evidence of PW1, the Appellate Authority held that there is no contradiction in his evidence and the Appellate Authority could not find any reason to disbelieve his version as to the genuineness and bona fides of the need. 14.Coming to the first proviso, no evidence was forthcoming to show that the claim of the petitioner was hit by the first proviso to section 11(3) of the Act. 15.The definite case of the petitioner is that the respondent is having some other rooms in Edat and Keloth and the income derived from the petition schedule shop room is not the main sources of income of the respondent. But no positive evidence was adduced by the respondent to show that the income from the petition schedule shop room is R.C.R. No.218 of 2016 10 the main source of his livelihood. The respondent himself admitted in evidence that he has not made any enquiry as to the availability of other rooms in the locality. Thus, the respondent has failed to discharge the burden of proof under the second proviso to section 11(3) of the Act. In the above view, the appellate court is justified in finding that the respondent is not entitled to get protection under the second proviso to section 11(3) of the Act. We do not find any reason to interfere with the findings of the Appellate Authority. Hence, this revision is dismissed. 16.At last, the learned counsel appearing for the respondent urged for granting one year time to vacate the premises. Per contra, the learned counsel appearing for the petitioner opposed the said request and submitted that a reasonable time alone can be granted. Having regard to the facts and circumstances of the case, we are inclined to grant a reasonable time to the respondent to vacate the petition schedule shop room. The respondent shall vacate the petition schedule shop room within six months from 11 R.C.R. No.218 of 2016 ## today on the following conditions:- (i) The respondent shall file affidavit, expressing unconditional undertaking that he will vacate the petition schedule shop room without any obstruction within six months, within three weeks from the date of receipt of the copy of this order. (ii) He shall deposit the entire arrear, if any, before the Rent Control Court within a period of 45 days from today. (iii) The respondent shall continue to pay the rent, without default. (iv) In the event of failure to comply with any of the conditions as aforesaid, the time granted to the respondent to vacate the premise would stand automatically vacated and the Rent Control Court will be at liberty to proceed with the execution proceedings. **Sd/K.HARILAL, JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** vps