RCRev. No. 98 of 2006 (RCR 98/2006)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932** **RCRev..No. 98 of 2006()** **----------------------RCA.182/1997 of ADDL. DISTRICT COURT, THALASSERY RCP.177/1996 of RENT CONTROL COURT (PRINCIPAL MUNSIFF)KANNUR** **....................** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **--------------------------------------------------------------------------** **R.P. SHAMSUDEEN, S/O.K.P.IBRAHIM, AGED 35 YEARS, MERCHANT, RESIDING AT KAYARALAM AMSOM, DESOM.** **BY ADV. SMT.DAISY THAMPI** ## **RESPONDENT(S): RESPONDENTS/RESPONDENT:** **--------------------------------------------------------------------------** **1. OTHAYOTH PUTHIYAPURAYIL IBRAHIM, S/O.ALI, MERCHANT, RESIDING NEAR MAYYIL MEDICALS, P.O. MAYYIL (DIED).** **2. SAFIYA, W/O. LATE IBRAHIM, PUTHIYAPURAYIL, P.O. MAYYIL..** **3. E.P. AZEEZ, S/O. LATE IBRAHIM -DO-.** **4. E.P. RASHEED, S/O. LATE IBRAHIM, -DO-.** **5. E.P. SIYAD, S/O. LATE IBRAHIM, -DO-.** **6. E.P.KHADEEJA, D/O.LATE IBRAHIM -DO-.** **7. E.P. JAMEELA, D/O. LATE IBRAHIM, -DO-.** **8. E.P. RASHEEDA, D/O. LATE IBRAHIM, -DO-.** **BY ADVS. SRI. MOHAMMED MUSTAQUE SRI.M.K.SUMOD** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------R.C.R.No.98 of 2006 ---------------------------------------------------Dated this the 10th day of March, 2011** ## **Order** ## **Pius C.Kuriakose, J.** The landlord is in revision. He sought to evict the tenants on the grounds of arrears of rent and own occupation under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner in the R.C.P., the revision petitioner herein is only one of the legal heirs of the original landlord K.P.Ibrahim. The need projected by him in the R.C.P. is that the building in question is required for occupation of his brother, P.W.2 so that he can conduct business in hill produce. The bonafides of the need was disputed and it was contended that the landlords are already conducting textile business under the name and style of Vavachi Silk Palace. It was also contended that they are having another building of their own in their possession so that it is possible for them to accomplish the need by occupying that building. The evidence before the Rent Control Court consisted of Exts.A1 and A2, B1 to B3 and Ext.C1 and the oral RCR 98/2006 2 evidence of P.Ws.1 and 2 and R.Ws.1 and 2. The Rent Control Court would dismiss the R.C.P. The learned Rent Control Appellate Authority under the impugned judgment allowed the R.C.A. in part and ordered eviction under Section 11(2)(b). In the present revision the challenge is against the concurrent decisions of the statutory authorities to decline the eviction on the grounder under Section 11(3). 2. We have heard the submissions of Smt.Daisy Thampy, learned counsel for the petitioner and also those of Mr.Mohammed Mustaque, learned counsel for the respondents. 3. Smt.Daisy Thampy took us through the impugned judgment of the Rent Control Appellate Authority. She highlighted that the approach of the learned Appellate Authority to the issue whether the R.C.P. is liable to be rejected by virtue of the first proviso to sub-section (3) of Section 11 was rather perverse. The learned Appellate Authority has found that the first proviso to sub-section (3) of Section 11 bars the present R.C.P. in view of the landlord's ownership and possession over a particular building. In the same judgment, the learned Appellant Authority has found that the said building is in the possession of another RCR 98/2006 3 tenant by name Kumaran. According to her, first proviso to Section 11(3) can have application only when landlords are found to be in vacant possession of their own buildings. It was further submitted that the Appellate Authority has cast the burden of proof on the landlord to prove that Vavachi Silk Palace which is actually being conducted by the brother-in-law of the revision petitioner is not conducted by the revision petitioner and his brother. It was the case of the tenant that Vavachi Silk Palace is being conducted by the revision petitioner and his brother. Whether or not Vavachi Silk Palace is conducted by the revision petitioner and his brother is a matter to be decided on the basis of the documentary evidence. It was the burden of the tenant to adduce such documentary evidence. 4. Smt.Daisy would also assail the finding of the statutory authorities that the tenant is entitled to protection under second proviso to Section 11(3) of the Act. According to her, such finding is entered in complete disregard to the relevant binding judicial precedents including the Full Bench decision of this court in **Francis v. Sreedevi Varassiar** (2003(2) KLT 230) and the judgment of the Supreme Court in **Kunhamma v. Akkali** RCR 98/2006 4 **Purushothaman** [2007(3) KLT 599(SC) ]. The report of the Advocate Commissioner was completely ignored by the statutory authorities. The report is to the effect that other vacant buildings are available in the locality. When such is the report, it was the duty of the tenant to examine the owners of those buildings and prove that those buildings are not available to the tenants. Lastly, she submitted that the monthly rent of Rs.90/- which is being paid by the tenants is ridiculously low. 5. Though the submissions of Smt.Daisy were resisted by Mr.Mohammed Mustaque, the learned counsel would fairly concede that the approach of the Appellate Authority in the context of first provisio to sub-section (3) of Section 11 was not proper. 6. We have anxiously considered the rival submissions addressed before us. We have gone through the order of the Rent Control Court and scanned the judgment of the Appellate Authority. It is very clear to us that the judgment of the Appellate Authority which under the statutory scheme is the final court on facts is vitiated by infirmities appealing to our revisional jurisdiction under Section 20 of the Act. First of all, the Appellate RCR 98/2006 5 Authority was expected to enter clear findings as to whether the need projected by the landlord is bonafide. The same has not been done in this case. On the contrary, the Appellate Authority has proceeded to consider the applicability of the first proviso to sub-section (3) of Section 11. According to us, the applicability of first proviso to sub-section (3) of Section 11 arises only when the court has come to a primafacie satisfaction at least that the need is bonafide. It is with reference to a particular building that the court has found that the first proviso to sub-section (3) of Section 11 bars the the R.C.P. But the Appellate Authority itself has found that the above building is in the possession of one Kumaran. Any building possessed by some other tenant will not be of assistance to the tenant in the context of the first proviso to sub-section (3) of Section 11. 7. The views of the learned Appellate Authority regarding Vavachi Silk Palace also are not satisfactory. It is true that textile business by name Vavachi Silk Palace is being conducted in a nearby place. The question is as to who is the owner of that business. It is the tenants' version that the business belongs to P.W.2. It is the landlord's version that the business belongs to his RCR 98/2006 6 brother-in-law. According to us, when the tenants assert that Vavachi Silk Palace belongs to P.W.2, it was for the tenants to adduce cogent evidence preferably documentary evidence issued by the local authority and to prove that Vavachi Silk Palce belongs to P.W.2. The same has not been done. No evidence has been adduced by the tenants to prove that Vavachi Silk Palce belongs to P.W.2. 8. We find force in the submissions of Smt.Daisy Thambi that the learned Appellate Authority's finding regarding second proviso to sub-section (3) of Section 11 is wrong. The Commissioner reported that several vacant buildings are available in the locality. The question, of course, is whether those buildings are available to the tenants on lease so that they can shift their business. According to us, as the burden to establish that the tenants satisfy both the ingredients of second proviso to sub-section (3) of section 11 is on the tenants, it was for the tenants to have examined the owners of those buildings reported to be vacant by the Commissioner and prove that those buildings are available to the tenants. Since the tenants have not adduced any evidence to show that they are entitled for the protection of RCR 98/2006 7 the second proviso to sub-section (3) of Section 11, we feel that the Appellate Authority has gone wrong in its finding on this aspect. We are inclined to hold so. At the same time, we are not inclined to decide the issue of eviction finally. We feel that the matter should be reconsidered by the Rent Control Court. We notice another aspect of the matter. The building is situated in a prominent area of Mayyil, a mini town, is fetching only Rs.90/per mensem as rent. The above amount is very low. Hence, we are inclined to refix the same with effect from 1.4.2011 at Rs.500/- per mensem. It is open to either party to move the Rent Control Court by appropriate petitions under Section 5 for fixation of fair rent. Till fair rent is fixed, the respondents shall pay rent at the rate of Rs.500/- per mensem with effect from 1.4.2011. 9. The result of the above discussion is, therefore, as follows: The order of the Rent Control Court and the judgment of the Appellant Authority to the extent the same pertains to the eviction ground under Section 11(3) are set aside. It is found that the tenants are not entitled for the protection under second proviso to sub-section (3) of Section 11. The R.C.P. is remanded RCR 98/2006 8 to the Rent Control Court for deciding the question whether the need projected is bonafide and the further question whether the R.C.P. is liable to be rejected by virtue of first proviso to subsection (3) of Section 11. The Rent Control Court will permit both sides to adduce whatever further evidence they want to produce on the above two aspects. The parties will enter appearance before the Rent Control Court on 11[th] April, 2011. The court below will complete the enquiry and pass revised orders within three months of the court reopening after mid summer vacation. The rent payable by the respondents is tentatively refixed with effect from 1.4.2011 at Rs.500/- per mensem. ## **PIUS C.KURIAKOSE, JUDGE.** ## **N.K.BALAKRISHNAN, JUDGE.** srd RCR 98/2006 9 RCR 98/2006 10