RCRev.423/2019 and RCRev.424/2019, Murukesan S. et al. v. Kuthirummal Abdul Salam; Kurumthazha Bharathan v. Kuthirummal Abdul Salam

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** **RCRev..No.423 OF 2019** **AGAINST THE JUDGMENT IN RCA 147/2018 DATED 11-10-2019 OF COURT OF THE RENT CONTROL APPELLATE AUTHORITY(ADDITIONAL DISTRICT JUDGE - III), THALASSERY** **AGAINST THE ORDER IN RCP 60/2011 DATED 15-10-2018 OF RENT CONTROLLER (MUNSIFF), PAYYANNUR** ## **REVISION PETITIONERS:** **1 MURUKESAN S. AGED 52 YEARS SON OF LATE K.SHANMUGHAM, BEHIND SUMANGALY TALKIES, PAYYANUR, PIN-670 370, KANNUR DISTRICT.** **2 SUBRAMANIAN.S., AGED 49 YEARS** **SON OF LATE K.SHANMUGHAM, BLUE MOUNTAIN BARBER SHOP, COURT ROAD, PAYYANUR, PIN-670 370, KANNUR DISTRICT.** **3 LALITHA.S., AGED 47 YEARS DAUGHTER OF LATE K.SHANMUGHAM, PAICHI, PILATHARA, POST, PIN-670 501, KANNUR DISTRICT.** **BY ADVS. SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.ABRAHAM GEORGE JACOB** ## **RESPONDENT:** **KUTHIRUMMAL ABDUL SALAM** **AGED ABOUT 58 YEARS, SON OF ASSAINAR HAJI, KAVVAI POST, PAYYANUR, PIN-670 307, KANNUR DISTRICT.** **R1 BY ADV. T.K.VIPINDAS (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18-032020, ALONG WITH RCRev..424/2019, THE COURT ON 18-03-2020 PASSED THE FOLLOWING:** **RCRev.Nos.423& 424 of 2019** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941/** **RCRev..No.424 OF 2019** **AGAINST THE JUDGMENT IN RCA 146/2018 OF COURT OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT JUDGE - III), THALASSERY** **AGAINST THE ORDER IN RCP 59/2011 DATED 15-10-2018 OF RENT CONTROLLER (MUNSIFF), PAYYANNUR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **KURUMTHAZHA BHARATHAN, AGED 68 YEARS, SON OF CHANDHUKUTTY,CHANDHUKUTTY JEWELLERS, COURT ROAD PAYYANUR, PIN-670307,KANNUR DISTRICT.** **BY ADVS. SRI.ABRAHAM GEORGE JACOB SRI.C.MURALIKRISHNAN (PAYYANUR)** ## **RESPONDENT/RESPONDENT/PETITIONER:** **KUTHIRUMMAL ABDUL SALAM, AGED 58 YEARS, SON OF ASSAINAR HAJI, KAVVAI POST,PAYYANUR, PIN-670307,KANNUR DISTRICT.** **R1 BY ADV. T.K.VIPINDAS (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 1803-2020, ALONG WITH RCRev..423/2019, THE COURT ON 18-03-2020 PASSED THE FOLLOWING:** **RCRev.Nos.423& 424 of 2019** **3** ## **COMMON ORDER** **[ RCRev..423/2019, RCRev..424/2019 ] Dated this the 18th day of March 2020** ## K.HARILAL,J. The revision petitioners are the tenants, against whom the order of eviction has been passed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'), in RCP Nos.59 & 60 of 2011 of the Rent Control Court, Payyannur. Though they had preferred appeals as RCA Nos.146 & 147 of 2018, before the Rent Control Appellate Authority, Thalassery, the Appellate Authority also confirmed the orders of eviction passed by the Rent Control Court and dismissed the appeals, by a common judgment. These revision petitions have been filed challenging the legality, propriety and regularity of the concurrent findings made by of the Courts below under the first proviso to Section 11(3) of the Act. Since the parties and their contentions raised in appeals are common, both revision petitions are heard together and disposed of accordingly. **RCRev.Nos.423& 424 of 2019** **4** 2. Though the challenge in these revision petitions are confined to the concurrent findings of the Courts below under the first proviso to Section 11(3) of the Act only, it is apposite and necessary to understand the entire facts of the case in brief. Therefore, the facts of the rent control petitions can be summarised as follows:- 3. The parties are referred to as 'landlord' and 'tenants' respectively. According to the landlord, his son by name Sajeer, is an unemployed person who is in need of starting a business of his own. He was conducting an electronic show room in Gulf country for the last more than 3 years on partnership. But, due to the world economic crisis and unhealthy business competitions, his business had collapsed and he returned to his native place. He intends to start a showroom of electrical items in the petition schedule shop rooms. The petition schedule shop rooms in both rent control petitions are situated adjacently and one is double storied. The tenant in RCP No.60/2011, is conducting a Barber shop and the tenant in RCP.No.59/2011, is conducting a Jewellery business in the **RCRev.Nos.423& 424 of 2019** **5** tenanted premises. The aforesaid petition schedule shop rooms are situated in the main commercial center of Payyannur town. The landlord’s son-Sajeer has no other avocation or sources of income of his own at present. Sajeer is depending upon the landlord, for the petition schedule shop rooms. The petition schedule shop rooms in both RCPs are required to be attached together, so as to start the business as intended by Sajeer. He will be able to set up a palatial and good looking show room by attaching his other rooms situated behind the petition schedule rooms. Hence he has proceeded against both tenants simultaneously. Sajeer is quite able to start business, as he got sufficient experience in the field of electronic business. The tenants are not depending upon the income derived from the business carried on in the petition schedule shop rooms. To meet the _bonafide_ needs of the landlord, no other suitable buildings are available in his direct possession. 4. The tenants raised common contentions denying _bonafides_ of the need projected in the petition. According to them, the need projected is a ruse for eviction only. The **RCRev.Nos.423& 424 of 2019** **6** landlords are having several other buildings in Payyanoor town and surrounding areas and they are sufficient for any kind of business intended by the landlord. There is absolutely no need for the landlord to evict the tenants who are eking out their livelihood by conducting a barber shop and a jewelry shop. So also it is contended that they are depending upon the income derived from their respective business in tenanted premises and no other building are available in the locality for shifting their business. So they are entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. 5. On the rival pleadings, parties went on trial and in that stage, the tenant in RCP No.60/2011, produced 3 documents before the Court to prove that the landlord has other buildings of his own in his possession to start the proposed electronic business for his son. In that context, the landlord filed an application to amend his pleadings, so as to incorporate special reason for not occupying certain buildings which are in his own possession and that amendment was allowed in RCP No.60/2011. The amended **RCRev.Nos.423& 424 of 2019** **7** pleadings are as follows:- 6. The landlord is in possession of some other rooms, but those rooms are not suitable to the purpose set out in the rent control petitions. The rooms mentioned in document nos.3062/2002 and 2500/2000 of SRO Payyannur, are situated in commercially weak areas of Payanoor town. Almost all the rooms in the said buildings are now remained unoccupied for want of commercial potentiality. The rooms in the above referred documents can never be used for the business of electronic items. The rooms mentioned in document no.3846/1998, is already given to the daughter of the landlord as per family arrangement at the time of her marriage. At the time of the family arrangement, the petition schedule rooms were allotted to the son of the landlord. That is the reason why the landlord has chosen to opt the petition schedule rooms to meet his son’s requirements. The other two rooms which are in the ownership of his son-Sajeer, is very small having 90 sq.ft each and electronic items showroom cannot be conducted in those rooms. The building owned by the **RCRev.Nos.423& 424 of 2019** **8** landlord and his wife is situated near the Judicial Officers Quarters and is not suitable for conducting an electronic shop, as that location lacks commercial importance. So the landlord has decided to use those rooms of that building for stocking the electronic items of the proposed business. 7. On the aforesaid pleadings, both parties adduced evidence, and after considering the evidence on record, the Courts below concurrently found that the landlord has given a special reason for not occupying the buildings which are in his possession for starting the proposed business of his son. The said finding have come up in revision before us. 8. Heard the learned counsel for the revision petitioners/tenants and the learned counsel for the respondent/landlord. 9. The learned counsel for the Revision petitioners/tenants submits that the Courts below have miserably failed to appreciate the evidence on record under the 1[st] proviso to Section 11(3) of the Act in its correct perspective. Even though, the landlord has miserably failed **RCRev.Nos.423& 424 of 2019** **9** to prove the special reasons for not occupying the aforesaid buildings, the Courts below went wrong, by finding that the landlord has succeeded in proving the special reason for not occupying the other buildings owned and possessed by the landlord. Thus the findings of the Court below are perverse. So also, it is contended that the landlord has suppressed his ownership and possession of other buildings in the same locality in the rent control petition. The other buildings which are in the possession of the landlord in different location of the same town are reasonably sufficient for starting an electronic shop. _10. Per contra_ , the respondent/landlord advanced arguments to justify the concurrent findings of the Courts below that the landlord has succeeded in proving special reasons for not occupying his own other building for the proposed business. The learned counsel for the landlord drew our attention to the pleadings incorporated by way of amendment to the RCP No.60/2011 and contended that though he has ownership and possession over several other buildings in the same town, he has satisfactorily explained **RCRev.Nos.423& 424 of 2019** **10** special reasons for not occupying those vacant rooms for starting the proposed business. 11. In view of the submissions at the Bar the sole question that arises for consideration in these revision petitions is, whether there is any illegality or perversity warranting interference of this Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, on the concurrent findings of the Court below that the landlord has succeeded in satisfying the special reasons for not occupying the other buildings, which are in his ownership and possession, in the same town. Going by the additional pleadings, we find that the landlord himself has admitted the ownership and possession of other buildings and vacant rooms in three other different locations. Besides he admitted in his original Rent Control Petition itself that he is in ownership and in possession of one vacant hall room, which is situated behind the petition schedule rooms. 12. The learned counsel invited our attention to his pleadings in the rent control petition and submits that in 5[th] paragraph of the rent control petition, he has specifically **RCRev.Nos.423& 424 of 2019** **11** stated that he will be able to set up a palatial and good looking showroom by attaching the other rooms also with the petition schedule rooms. According to the landlord, though the said room is a big hall, the same alone cannot be used for starting the proposed electronic shop, as the said room has no road frontage. Further he admitted that he is in possession of two other rooms on the southern side of the very same building. One is a corner room on the southern side having road frontage to two roads and the other is another shop room on the eastern side of the said corner shop room. The corner shop room was purchased by him by virtue of document no.4887/2012 and eastern room was purchased by him by virtue of document no.3846/1998. The landlord further states that the aforesaid corner room was purchased after the institution of the rent control petition and the same was given to his elder daughter-Sabreena, at the time of her marriage. Her husband is an ENT Doctor and his daughter Sabreena is a Pharmacist. They are proposing to start a clinic and medial shop in those rooms. Since the aforesaid room was already given to the elder daughter, the **RCRev.Nos.423& 424 of 2019** **12** same cannot be given to his son for starting the proposed business. As regards the eastern adjacent room purchased by document no.3846/1998, he states that he has already given the said room also to Sabreena, as two rooms are required for them to start medical shop for her and clinic of her husband, who is an ENT Doctor. His daughter is a Pharmacist holding B.Pharm. degree and she wants to start a medical shop of her own in the corner shoproom. 13. The landlord further states that his son has another building at BKM Junction and the building has two rooms, but those rooms are very small and the same is not suitable for starting electronic items business and those rooms cannot be compared with the petition schedule shop rooms. The said rooms were inspected by the Advocate Commissioner, who filed Ext.C1-report. At the time of inspection, the said rooms were kept closed. But the Advocate Commissioner inspected the adjacent shop rooms and reported that the adjacent shop rooms are having similar area in appearance and those shop rooms are having an extent of 100 sq.fts. It is also reported by the **RCRev.Nos.423& 424 of 2019** **13** Commissioner in Ext.C1-report that it is not located in the prime location. 14. In order to substantiate the special reason for not using those rooms at BKM Junction, Sajeer was also examined as PW4 he stated that those shop rooms are very small shop rooms and the proposed electronic business cannot be conducted in those shop rooms not only for the reason that it is small in size but also the said location is not potential for commercial activity. No contra evidence has been adduced by the tenants to prove otherwise. 15. Further the landlord admitted that he has another building complex by name-”Season Complex”. According to him, this building has no road access and it is situated 40 metres away from the road and only a pathway alone is available for access to the said building. The Advocate Commissioners also inspected the shop rooms and reported in Ext C1 that the said building lacks road access, as it is situated 40 metres away from the main road. It has come out in evidence from Ext.C1-report that 40 small rooms are lying vacant in that building and 6 rooms are **RCRev.Nos.423& 424 of 2019** **14** occupied by different tenants. The Commissioner also reported that though the rooms are available, those rooms cannot be used for a large scale electronic business due to lack of main road access. Thus there is no evidence from the part of the tenants to prove otherwise. Thus, we also find that the landlord has satisfactorily established the special reasons for not occupying the shop rooms in season complex for starting the electronic showroom. 16. Further the landlord states that another building situated near the Judicial Officers Quarters belongs to him and his wife; but the rooms in those buildings also cannot be used for starting electronic shop as the building is situated in a place having no commercial importance. The Commissioner visited the said building and reported in Ext. C1 that the said building is not situated in a commercially important area. The landlord further states that he wants the aforesaid building near the Judicial Officers Quarters for using the same as a godown of the proposed electronic business. We also find that special reason given by the landlord is satisfactory in the absence **RCRev.Nos.423& 424 of 2019** **15** of any contra evidence, to disbelieve the Commission Report. 17. On an analysis of the evidence of PW1 and PW4, the landlord and his son, who intends to start the electronic business, we find that the evidence of PW1-landlord is corroborated by the evidence of PW4, the son. Nothing could be brought out to disbelieve their reasonings as to the special reason for not occupying the buildings at BKM Junction, Season Complex and building near Judicial Officers Quarters. 18. Admittedly, the petition schedule buildings are located in a prime location in Payyannur town. The shop rooms at BKM Junction and in Season Complex and the building near Judicial Officers Quarters are not situated in commercially important places. The said rooms are not similar in size, location and suitability when comparing with the petition schedule shop rooms. The volume of business, which is expected from the business, is very decisive and important in selecting the location of a new retail sales shop. The visibility and accessibility of the shop room are **RCRev.Nos.423& 424 of 2019** **16** also very important. On an analysis of the Commission Report, we are of the opinion that none of the shop rooms can be compared with the petition schedule rooms. Thus, the evidence of Pws 1 and 4 coupled with Ext.C1-report, would show that the landlord has satisfactorily given special reasons for not occupying the shop rooms situated at the BKB Junction, Season Complex and building near the Judicial Officers Quarters. We do not find any kind of perversity in the appreciation of evidence with respect of those buildings. 19. Coming to the other two shop rooms situated near the petition schedule rooms, it is true that those shoprooms are situated very near to the petition schedule shoprooms. Therefore, it could be seen that those two shop rooms are located in the same location, having very same commercial importance as that of the tenanted premises. The only difference is that the shops which are situated on the southern side of the petition schedule shop rooms are single storied building. But the shops occupied by tenants in RCP No.60/2011, are double storied buildings and the shop **RCRev.Nos.423& 424 of 2019** **17** occupied by RCP No.59/2011, is the shop room which is situated just adjacent on the northern side of his double storied shop room. Therefore, it has come out in evidence that, if the landlord gets the tenanted premises, he can join two shop rooms together and among the two, one is double storied one. So also these two rooms can be joined with the hall which is situated on the back side of the aforesaid shop rooms. Thus, location is similar; but suitability is not similar. So it cannot be said that the corner shoproom and the eastern adjacent shoproom are suitable as that of the petition schedule shoprooms, for starting the electronic show room. 20. So the remaining question to be considered is whether the reasoning of the landlord that he has already allotted, the aforesaid two shop rooms on the southern side to his daughter Sabreena and her husband and the petition schedule shoprooms to Sajeer, by a family arrangement can be believed or not. It has come out in evidence that at the time of institution of the rent control petition, the landlord has only one shop room on the southern side and he **RCRev.Nos.423& 424 of 2019** **18** purchased other corner shop room after the institution of the rent control petition. It is the specific reasoning of the landlord that he has already given those two shop rooms to his elder daughter Sabreena and his son-in-law an ENT Doctor, for starting a clinic and medical shop at the time of his marriage. In Ext.C1- the commission report, the Commissioner has reported that all the arrangements are seen made for starting a medical shop in the corner shop room. 21. The tenants contended that daughter of the landlord has already started the medical shop in the corner shop room and thereafter, she closed the shop room. So the said shop room can be used for starting the proposed electronic business. We are of the opinion that the said admission from the part of the tenants are sufficient to prove that the Landlord has already alloted that shop room to his daughter. Further, the landlord stated that he had already decided to give the petition schedule shoprooms to his son-Sajeer, as his share. 22. In the above context, it is to be remembered that **RCRev.Nos.423& 424 of 2019** **19** the landlord is a Muslim and he is governed by Mohammedan Law, in the matter of transfer of property. According to the Mohammedan Law, a gift does not require. a written document, if delivery is effected. Ext.C1 Commission Report shows that corner Shop room had been delivered to sabreena and she has made all arrangements to start a medical shop. Therefore, the deposition of landlord to the effect that he has already given the southern and eastern shop rooms to his elder daughter Sabreena, in connection with her marriage, can be believed, in the absence of any contra evidence from the part of the tenants. Though the Courts below concurrently observed that the landlord was subjected to cross examination on that point, he has successfully withstood the cross examination and maintained his stand that he has already given the shop rooms to his elder daughter Sabreena, at the time of her marriage. Since the landlord has already given the corner shop room to his daughter Sabreena, the subsequent purchase of the corner shop room by the landlord after the passing of the order of eviction by the **RCRev.Nos.423& 424 of 2019** **20** Rent Control Court has no fundamental impact or effect on the bonafide need, for which an order of eviction has been passed by the Rent Control Court. As regards the eastern shop room which was given to sabreena, it was purchased in the year 1998. In the counter statement filed by the tenants, they have no case that the said shop room was laying vacant. Had it been laying vacant, the tenants could have taken such a contention and the absence of such a contention is fatal to the tenants. 23. Therefore, whether she has started the business in the shop room, which was given to her, does not require further consideration. It is to be remembered that at the time of filing of the rent control petition, he was not in possession of the said shop room and it was purchased after the institution of the rent control petition. Thus we are of the opinion that the desire of a father, to allot his properties to his children in a particular manner as he wishes, cannot be disbelieved or suspected. More importantly, the landlord has already alloted the petition shoprooms by a family arrangement to his son Sajeer. **RCRev.Nos.423& 424 of 2019** **21** Therefore, Sajeer wants to start the proposed electronic business in the said shop room. We further find that the tenants cannot dictate the terms of sharing of the properties of the landlord to his children. The manner in which the landlord shared his property among his three children also can be taken as a special reason for selecting rooms for starting a business for each of them. 24. In the instant case, it has come out in evidence that, he has chosen the petition schedule shoprooms for starting the proposed business of his son-Sajeer, for the reason that he has allotted the petition schedule shop room to Sajeer by a family arrangement. This reasoning cannot be rejected as it appears just and reasonable. The above view is supported by the decision of this Court in **2004 (3) KLT 1046 (Valsan V. Furtal.** _“ 6. Landlord might have rented out several premises to different tenants but he has always the option to seek eviction of a premises which is convenient for him for the purpose for which eviction has been sought for. Option has to be exercised by_ **RCRev.Nos.423& 424 of 2019** **22** _the landlord exclusively for which tenants have no role. Several factors would go into the mind of the landlord while exercising the option against whom, the Rent Control Petition has to be filed when there is more than one tenant. Factors like rent received from the particular tenant, convenience, relationship and so on may influence the landlord while exercising his option. After having decided to file Rent Control Petition against tenant A, tenant B vacates, it will be for the landlord to decide whether he should occupy the vacant premises. The landlord after having made a preference cannot be forced to occupy the premises B which became available subsequently unless the tenant's need is wholly satisfied which is essentially a question of fact. In a given case the landlord can rent out even the premises which came into his possession during the pendency of the rent control proceedings for a better rent. No duty is cast on the landlord to keep the premises idle and discontinue the rent control proceedings. Landlord can always proceed with the rent control proceedings having taken a decision to proceed against A rather than B._ **RCRev.Nos.423& 424 of 2019** **23** _Special reasons may exist not only when he exercised his option but also when he got the vacant possession of a premises. Reference may be made to the decision of the Apex Court in Savithri Sahay v. Sachidanand Prasad, (2002) 8 SCC 765. In a recent decision in Pratap Raj Tanwani v. Uttam Chand, 2004(7) SCALE 631, the Apex Court has reiterated that the crucial date for considering the bona fide need is the date of filing of the Rent Control Petition. Only in cases where the Court is satisfied that subsequent events have wholly satisfied the requirement of the landlord it could reject the plea of the landlord under Section 11(3) of the Act.”_ 25. In the above analysis, we find that the landlord has succeeded in establishing special reason for not occupying other buildings which are in his ownership and possession and situated in different location of the same town. 26. The learned counsel for the tenants has produced **RCRev.Nos.423& 424 of 2019** **24** two documents to prove that the landlord has rented out the corner shop room of the nearby eastern room to third person. We are unable to accept those documents in the revision petitions, as the same is not permissible under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. So also, we find that all the subsequent events cannot be taken into consideration throughout the proceedings up to the Hon'ble Supreme Court. We are of the view that subsequent events having fundamental impact on the existing pleadings alone can be looked into in the appeals. Moreover, we have already found that the corner shop room and the eastern shop room had been given to his elder daughter Sabreena in connection with her marriage and she is in possession of those shop rooms. So the subsequent leasing of those shop rooms has no fundamental impact on the bonafides of the need. 27. Coming to the pleadings, the tenants have not stated the particulars of buildings which are in possession of the landlord in their counter statements. The tenants vaguely stated that the landlord is in possession of several **RCRev.Nos.423& 424 of 2019** **25** other buildings. In view of the lack of pleadings, we find that the subsequent events lacks relevancy and the same is having no fundamental impact. It is needless to say the subsequent event having fundamental impact and effect on the pleadings alone need be looked into in Appeal and Revision. It is to be remembered that legal proceedings is not a fishing enquiry up to the Hon'ble Supreme Court. Having regard to the nature of business, which is being conducted in the petition schedule rooms, the tenants are given two weeks time to vacate the petition schedule rooms, on the following conditions: _(1) The revision petitioners/tenants shall file an affidavit, within one week 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 shop room within two weeks from today._ _(2) The revision petitioners/tenants shall deposit the entire arrears, if any, within one week from the date of_ **RCRev.Nos.423& 424 of 2019** **26** _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 respondent/landlord will be at liberty to proceed with the execution of the eviction order._ Accordingly, the rent Control Revision Petition is dismissed as above. **Sd/K.HARILAL JUDGE** **Sd/C.S.DIAS JUDGE** **VPK**