Rent Control Revision No. 98 of 2020

RCR No. 98/2020 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 RCREV. NO. 98 OF 2020 ORDER DATED 30.08.2019 IN RCP 2/2015 OF PRINCIPAL MUNSIFF COURT,NEDUMANGAD RCA 25/2019 OF RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM ## REVISION PETITIONERS/APPELLANTS/RESPONDENTS: - 1 A.K.DINESAN AGED 50 YEARS S/O. A.M. KESAVAN, NOW RESIDING AT T.C.NO.24/1010, ARACKAL VEEDU, THYCAUD, THIRUVANANTHAPURAM-695 014, FROM ARAKKAL VEEDU, PALISSERY VILLAGE, THRISSUR. - 2 MANOJ S. AGED 48 YEARS S/O. SREEDHARAN, THRISSUR POORAM JEWELLERS, MARKET JUNCTION, NEDUMANGADU, THIRUVANANTHAPURAM, RESIDING AT KUTTIKKATTU PARAMBIL, PARALAM P.O., VENGINISSERI, THRISSUR-680 563. BY ADV A.S.SHAMMY RAJ ## RESPONDENTS/RESPONDENTS 1 & 2/PETITIONERS: - 1 SHAHUL HAMEED S/O. MUHAMMED KASIM, KHADEEJA BUILDING, MARKET JUNCTION, MANCHA ROAD, NEDUMANGADU P.O., THIRUVANANTHAPURAM-695 541. - 2 ISHARA S/O. SHAHUL HAMEED, KHADEEJA BUILDING, MARKET JUNCTION, MANCHA ROAD, NEDUMANGADU P.O., THIRUVANANTHAPURAM-695 541. - 3 NISHARA D/O. SHAHUL HAMEED, KHADEEJA BUILDING, MARKET JUNCTION, MANCHA ROAD, NEDUMANGADU P.O., THIRUVANANTHAPURAM-695 541. BY ADVS. SRI. V.SURESH (CAVEATOR) SRI. R.HARIKRISHNAN (H-308) RCR No. 98/2020 : 2 : SRI. V.SURESH(K282/1989) SRI. G.SUDHEER(K/000467/1992) SMT. SMRITHI S.S.(K/1674/2018) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR No. 98/2020 : 3 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------Rent Control Revision No. 98 of 2020 --------------------------------------------------------Dated this the 3[rd] day of November, 2023. ## **ORDER** ## Johnson John, J **.** This revision petition is filed against the concurrent orders of eviction under Sections 11(2)(b), 11(3) and 11(4)(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short). 2. The parties are referred to as per their status in the Rent Control Petition. Originally, the first petitioner/landlord let out the building to the first respondent tenant as per an agreement dated 13.09.2001 for running a jewellery business in the name and style of 'Thrissur Pooram Jewellery” The petitioners 2 and 3 are the sons of the first petitioner, who is a retired bank employee. It is alleged that the original tenant, who is the first respondent, conducted the business only till 31.07.2011, and from 01.08.2011 onwards, the second respondent is running the business without the consent of the landlord. It is also alleged that the original tenant is now conducting business in the Gulf countries and the need put forward by the landlord is that he intended to start a business in rubber and hill products and also to use the shop room on the southern side as a godown for the proposed business. RCR No. 98/2020 : 4 : 3. It is also the case of the landlord that the tenant committed default in paying the rent from 01.08.2011 onwards. It is contended by the respondents that there is no sub lease and that the first respondent, who is the original tenant, is doing partnership business with the second respondent and that the second respondent is now doing business for and on behalf of the partnership firm. 4. The contention advanced by the tenant is that even though they paid the rent, the landlord has not issued any receipts. We find no reason to disagree with the findings of the court below that in view of Section 9 of the Act, the said contention of the tenant is not legally sustainable. If in case the landlord has not issued receipts, as contended by the tenant, the tenant could have resorted to the procedure prescribed under Section 9 of the Act and in the absence of any evidence to show that the tenant has taken steps for the payment of rent as per the procedures prescribed under Section 9 of the Act, the contentions of the revision petitioners in this regard cannot be accepted. The _bona fide_ need put forward by the original landlord is that even though he transferred the petition schedule property to his sons as per Exhibit A2 settlement deed, he has retained his right to enjoy the property which includes the right to receive the rent and further he is also RCR No. 98/2020 : 5 : dependent on his sons. It is also stated that he is in _bona fide_ need of the petition schedule shop room for conducting a business in rubber and hill products and that the adjacent room on the southern side is fit to be used as a godown for the proposed business. 5. It is argued on behalf of the revision petitioners that there is no sublease and that the original tenant is now conducting a partnership business, wherein the second respondent is running the business for and on behalf of the partnership firm. A perusal of Exhibit B1 partnership deed executed on 18.08.2001 shows that the principal place of the partnership business shall be at the Market junction, Nedumangad and that as per clause 9 of Exhibit B1, the firm is required to be registered with the Registrar of Firms. But so far, no registration has been done. 6. It is worthwhile to note that as per clause 10 of Exhibit B1, it is required to maintain the books of account regarding the sharing of profits. But, there is no evidence from the side of the tenants to show that such books of accounts are maintained. It is not in dispute that the original tenant executed Exhibit A1 rent deed in favour of the landlord on 13.09.2001 in his personal capacity and Exhibit B1 partnership deed was created only on 18.10.2001. 7. It is in evidence that the original tenant has been doing business in Gulf countries for the last so many years and he has not RCR No. 98/2020 : 6 : been available in India for many years and further he has not chosen to enter the witness box to state his own case on oath and therefore, we find that the courts below has rightly drawn a presumption against him, in view of the decision in **Vidhyadhar v. Mankikrao and another** (AIR 1999 (SC)1441). 8. The learned counsel for the landlord also pointed out that the non registration of the alleged partnership deed will lead to the conclusion that the partnership is not genuine and is only a camouflage to cover up the real arrangement between the tenant and the sub-tenant. In this connection, the learned counsel for the landlord has also relied on the decision in **Nazarudeen v. Padmakaran** [2004 (1) KLT SN 77). 9. It is not in dispute that the sharing of possession and conducting joint business on the basis of the alleged partnership is done without the consent of the landlord and against the stipulations in the rent deed and therefore, we find no illegality in the findings in favour of the landlord under Section 11(4)(1) of the Act. 10. The revision petitioners have raised a contention that the need put forward by the original landlord that he wants to start a business in rubber and hill products in the petition schedule shop room is not at all _bona fide_ and it is only a ruse for eviction. It is in RCR No. 98/2020 : 7 : evidence that the original landlord is a retired bank employee, who is now dependent on his sons and that he had undergone training in rubber processing and grading as per Exhibit A8 certificate. Exhibits A9 and A10 licences would further show that he obtained possession of the adjacent shop rooms for the purpose of using it as a godown. 11. The tenant has a contention that the building bearing No. 15/86 on the southern side of the petition schedule building in the possession of the landlord is suitable for the proposed business of the landlord. But, according to the landlord, the said building on the southern side is not convenient for the proposed business and the same can only be used as a godown. It is in evidence that the petition schedule building is on the side of the ThiruvananthapuramAryanad road near to Nedumangad market junction and the building on the southern side of the petition schedule building is on the side of the Mancha-Aruvikkara road. 12. We find no reason to disagree with the findings of the courts below that it is for the landlord to decide in what manner the space is to be utilised and that the tenant cannot dictate how and in what manner the landlord should make use of his building and therefore, we find no illegality in the findings of the courts below that the need projected by the landlord is genuine and _bona fide_ RCR No. 98/2020 : 8 : and that his claim is not hit by the first proviso to Section 11(3) of the Act. 13. However taking into account the facts and circumstances of the case, the revision petitioner/tenant is granted six months' time from today to vacate the petition schedule room, on condition that he shall file an unconditional undertaking before the Rent Control Court, within two weeks from today, that he shall vacate the petition schedule room within a period of six months and also shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent on or before the tenth of every succeeding month, till he vacate the petition schedule room. This Rent Control Revision is disposed of as above. sd/- **P.B. SURESH KUMAR, JUDGE.** **s** d/- **JOHNSON JOHN, JUDGE.** Rv —