RCRev. No. 305 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY ,THE 13TH DAY OF NOVEMBER 2018 / 22ND KARTHIKA, 1940** **RCRev..No. 305 of 2017** **AGAINST THE JUDGMENT DATED 31-03-2017 IN RCA 70/2016 of THE RENT CONTROL APPELLATE AUTHORITY, VADAKARA** **AGAINST THE ORDER DATED 27-01-2016 IN RCP 77/2014 of RENT CONTROL COURT, VADAKARA** ## **REVISION PETITIONERS/RESPONDENTS 1 AND 2/RESPONDENTS 1 AND 2:** - **1 ISMAIL, S/O MOOSA, EDORA, ERAMALA AMSOM, ORKKATTERI DESOM ORKKATTERI P.O. VATAKARA TALUK, KOZHIKODE DISTRICT.** - **2 KALLATT RAMALA, D/O POCKER MASTER, AGED 50 YEARS, "KADEEJA MANZIL" ERAMALA AMSOM,ORKKATTERI DESOM ORKKATTERI P.O. VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENTS/APPELLANTS & RESPONDENTS 3 TO 5/PETITIONERS AND RESPONDENTS 3 TO 5:** - **1 MUNEERA, D/O KUNHIPATHU, AGED 37 YEARS, N.H.HOUSE, KURINJALIYODE P.O. VATAKARA TALUK, KOZHIKODE DISTRICT- 673 542** - **2 NAZEERA,** **D/O KUNHPATHU, AGED 35 YEARS, KUNNIYOOR THAZHEKUNI, VYKILISSERY P.O., VATAKARA TALUK, KOZHIKODE DISTRICT- 673 543** **RCRev..No. 305 of 2017** **-:2:-** - **3 HYRUNNISSA, D/O KUNHPATHU, AGED 32 YEARS, THAVAKKAL HOUSE, AYANIKKAD P.O. VATAKARA TALUK, KOZHIKODE DISTRICT- 673 521** - **4 FOUSIYA, D/O KUNHIPATHU. AGED 30 YEARS, 'CHOYIKANDIYIL' ONCHIYAM P.O. VATAKARA TALUK, KOZHIKODE DISTRICT- 673 308** - **5 FAREEDA, D/O KUNHIPATHU, AGED 28 YEARS, MAVULLATHIL, KARTHIKAPPALLY P.O. VATAKARA TALUK, KOZHIKODE DISTRICT- 673 542** - **6 MUHAMMED AJMAL S/O KUNHIPATHU, AGED 21 YEARS,'KELOTH', MUTTUNGAL AMSOM RAYARANGOTH DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT- 673 101** - **7 KELOTH MOIDU S/O MAMMI, AGED 67 YEARS,'KELOTH', MUTTUNGAL AMSOM RAYARANGOTH DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT- 673 102** **8 MUHAMMED UWAISE S/O KUNHIPATHU, AGED 30 YEARS,'KELOTH', MUTTUNGAL AMSOM RAYARANGOTH DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT- 673 102** **9 MUHAMMED SUHAIL S/O KUNHIPATHU, AGED 26 YEARS,'KELOTH', MUTTUNGAL AMSOM RAYARANGOTH DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT- 673 102** **BY ADVS.SRI.P.B.KRISHNAN** **SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 305 of 2017** ## **-:3:-** ## **ORDER** ## **ANNIE JOHN,J.** **The revision petitioners are respondents 1 and 2 in R.C.P. No.77 of 2014 on the files of the Rent Control Court(Munsiff Court), Vadakara and the respondent Nos.1 to 6 are the petitioners and respondent Nos. 7 to 9 are the respondent Nos.3 to 5 in the aforesaid R.C.P. The revision petition has been filed, aggrieved by the order of the Rent Control Appellate Authority, Kozhikode, as R.C.A. No.70 of 2016. [The parties are referred to as in the Rent Control Petition]. 2. The petitioners/landlords filed an appeal on the ground that the finding rendered by the Rent Control Court is incorrect and the Rent Control Court ought to have allowed the application. The Rent Control Court ought to have accepted the evidence of PW.1 and found that** **RCRev..No. 305 of 2017** ## **-:4:-** **the need projected is** _**bona fide.**_ **The Rent Control Court has negatived the claim put forward by the landlords. Accordingly, the petition was dismissed and in appeal the finding rendered by the Rent control Court has been reversed and ultimately held that the landlords are entitled to get eviction as sought under Section 11(3) of the Kerala Buildings(Lease and Rent Control) Act, 1965** _**(hereinafter referred to as 'the BRC Act)**_ **within one month and the tenants are directed to put the landlords in possession of the petition schedule building within one month from the date of receipt of the order. Highly aggrieved by the judgment of the Rent Control Appellate Authority, the present revision petition has been filed.** **3. Originally the Rent Control Petition was filed under Section 11(3) of the BRC Act for the** _**bona fide**_ **need of petitioner No.6, for starting a business of consultancy in designing, drawing, planning and estimation of civil works in** **RCRev..No. 305 of 2017** ## **-:5:-** **building in question. According to petitioner No.6, he is a qualified civil draftsman having previous experience in these field and he intends to start the aforesaid business in the petition schedule building. This fact has been denied by the 1[st] and 2[nd] respondents i.e, the revision petitioners, stating that the claim of petitioner No.6, is not** _**bona fide**_ **and his intention is only to evict the revision petitioners. Respondent Nos.4 and 5 are also the landlords of the petition schedule building. Respondent No.3 is the father of the respondents and there he is also a tenant of the building and they are conducting a business on partnership. After evaluating the entire evidence, the finding of the rent control court that the** _**bona fide**_ **need of petitioner No.6, is not genuine and true, because of the collusion between the 3[rd] respondent, the father of the petitioners and they have filed a petition to evict the respondent Nos.1 and 2** **RCRev..No. 305 of 2017** ## **-:6:-** **i.e., revision petitioners from the petition schedule building and since** _**bona fide**_ **requirement is negatived and the proviso to Section 11(3) of the BRC Act is also not considered by the Rent Control Court. As per Section 11(3) of the BRC Act, the landlord may apply to the Rent Control Court for an order, directing the tenants to put the landlord in possession of the building, if he** _**bona fide**_ **needs the building for his own occupation or for the occupation by any member of his family dependent on him. This is a well settled fact and this Section qualifies the need of the landlord or his dependent by the word '** _**bona fide'**_ **. As per Section 11(3) of the BRC Act, it is only on the landlord to establish he** _**bona fide**_ **requires the petition schedule shop room for starting a business therein. Only when the landlord established the** _**bona fide**_ **requirement, he is entitled to get eviction.** **RCRev..No. 305 of 2017** ## **-:7:-** **4. Herein, petitioner No.6, who claims to get vacant possession of the petition schedule building was examined as PW.1. Accordingly, he testified that he requires the petition schedule building for starting of consultancy in designing, drawing, planning and estimation of civil works. Originally, the petition schedule building belongs to the mother of the petitioners Kunchipathu. The 3[rd] respondent Moidu is her husband. The petitioners and respondents 4 and 5 are their children. After the death of Kunchipathu, the entire right of the petition schedule shop rooms were devolved upon her legal heirs, i.e., petitioners and respondents 3 to 5. Respondents Nos.1 to 3, in R.C.P. No.77 of 2014 are the tenants in the petition schedule building on the basis of Ext.A1 rent agreement and they are conducting a hardware shop in the petition schedule premises, as per the terms of the partnership deed and there is no dispute** **RCRev..No. 305 of 2017** ## **-:8:-** **regarding the landlord-tenant relationship between the parties. It is also known that this petition was filed with the consent of respondents 4 and 5. Respondent Nos.3 to 5 are remained** _**ex parte**_ **in the proceedings of the rent control court. The Rent Control Appellate Authority has considered the evidence adduced by either side and convinced that the** _**bona fide**_ **need urged by the respondents are genuine.** **5. The learned Judge has relied on the evidence of PW.1. According to PW.1, he is a qualified civil draftsman, having qualified in the year 2013 and obtained CADD certificate in building animation and also completed the course, working with A1 Hawaj Builders, Villaippily as a draftsman. After he left the job and joined in Ayani Builders, Vatakara and that also he left and now he is freelancing.** **6. The learned counsel for the revision petitioners strenuously argued on this point** **RCRev..No. 305 of 2017** ## **-:9:-** **stating that the 6[th] petitioner has qualified in 2013. But, after a long time, i.e., 2016, he has filed an application to get the vacant the possession of the building. That too is sufficient to find that there is no** _**bona fide**_ **on the part of the 6[th] petitioner. But, the argument advanced alone will not sustain because at any time, anyone can start a business. Here, the petitioner No.6 is qualified in the year 2013 and it is proved that he is a qualified draftsman. So, the tenant is not supposed to dictate the landlord how and which manner to commence his business and this fact is well settled, as per the decision reported in** _**Sait Nagee Purushotham and Co. Ltd., v. Vimalabai Prabhulal**_ **[2005 KHC 1495]. According to PW.1, he is left without any job and also qualified. Respondent Nos. 4 and 5, brothers of PW.1 are working in abroad and he has sufficient financial capacity to start business also.** **RCRev..No. 305 of 2017** ## **-:10:-** **7. The learned counsel for the revision petitioners pointed out that the lower court has taken an inference to the effect that this petition has been filed under the guise to evict the revision petitioners for helping the 3[rd] respondent, father of the petitioners and the finding rendered by the Rent Control Court is correct and the landlords failed to establish the** _**bona fide**_ **requirement. The finding rendered by the Rent Control Court in paragraph No.11 of the order, the learned Rent Control Court observed following doubts in the genuineness of the** _**bona fide**_ **claim raised by PW.1 and consequently the petition was dismissed in view of those doubts. The first one is, if the eviction is ordered, it is not possible to shift all items heaped in the petition schedule premises to some other place and in that situation petitioners can take up the business of the building in question and continue it as their own venture. Secondly, it is not** **RCRev..No. 305 of 2017** ## **-:11:-** **possible to shift all the goods stored in the room to some other rooms easily and such a situation may compel the respondent No.1 and 2 to hand over the business to respondent No.3. Thirdly, petitioners filed this petition in collusion with their father, the 3[rd] respondent to grab the business of respondent Nos.1 and 2 and on these observations the Rent Control Court has found that the** _**bona fide**_ **requirement as sought by the petitioners are not correct.** **8. The learned counsel for the respondents advanced arguments, stating that the presumptions arrived by the lower court is not correct and is unfortunate that no such pleadings or contentions were taken by the revision petitioners and no evidence was forthcoming or challenging to bring out these points, as observed by the Rent Control Court. It is very important to note that the revision petitioners are not taken such a contentions in their objection regarding the** **RCRev..No. 305 of 2017** ## **-:12:-** **point as highlighted by the Rent Control court in its order.** **9. It is unfortunate to note that without contentions the Rent Control Court would not have entered into such findings. Accordingly, the Rent Control Appellate Authority has held that the presumptions are arrived by the Rent Control Court is not correct. There is no evidence forthcoming to prove that the petitioners have any enmity towards respondent Nos.1 and 2. So, the inference as arrived by the Rent Control Court as stated above is found negatived and found that PW.1(the 6[th] petitioner) is established in proving that he** _**bona fide**_ **needs to commence the business in the petition schedule building is sincere and honest. Accordingly, the inference as raised by the Rent Control Court is discarded and reversed the finding and ultimately** **found that the** _**bona fide**_ **requirement was contemplated under Section 11(3) of the BRC Act** **RCRev..No. 305 of 2017** ## **-:13:-** **is found to be correct. Accordingly, the Rent Control Appellate Authority has interfered the order of the Rent Control Court and allowed the petition under Section 11(3) of the BRC Act. On going through the judgment of the Rent Control Appellate Authority and the order of the Rent Control Court, we find that interference of the Rent Control Appellate Authority is found to be correct. We are of the considered view that the finding of the Rent Control Appellate Authority is correct and there is no illegality or impropriety in interfering with the order of the Rent Control Appellate Authority. It is only to be confirmed. Hence, this revision petition is only to be dismissed.** **10. Having regard to the facts and circumstances of the case, the revision petitioner is given nine months time from today to vacate the tenanted premises on the following** **conditions:** **RCRev..No. 305 of 2017** ## **-:14:-** _(i) The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within nine months, from today._ _(ii)The respondent/tenant shall deposit the entire arrears of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default._ _(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioners/landlords will be at_ **RCRev..No. 305 of 2017** ## **-:15:-** _liberty to proceed with the execution of the eviction order._ **The rent control revision is dismissed accordingly. All pending Interlocutory** **Applications will stand closed.** **Sd/-** **K.HARILAL** **JUDGE** **Sd/-** **ANNIE JOHN JUDGE** DST //True copy// P.A.To Judge