Revision petitions: Krishnan Vadakkedath v. Madalan Valliyottu Abdul Nazar; M.V. Damodaran v. Madalan Valliyottu Abdul Nazar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **RCRev..No.394 OF 2019** **AGAINST THE JUDGMENT DATED 25-07-2019 IN RCA 161/2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT - II), THALASSERY IN RCP 82/2014 OF RENT CONTROLLER (MUNSIFF) COURT, PAYYANNUR** ## **REVISION PETITIONER/ APPELLANT/ RESPONDENT :** **KRISHNAN VADAKKEDATH, AGED 37 YEARS, S/O. KRISHNAN, VADAKKEDATH HOUSE, KUTTUR AMSOM DESOM, KUTTUR (P.O), TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670 306** **BY ADVS. SRI.P.S.BINU SRI.ZUBAIR PULIKKOOL** ## **RESPONDENT/ RESPONDENT/ PETITIONER :** **MADALAN VALLIYOTTU ABDUL NAZAR, S/O. KUNHAMED, RESIDING AT ERAMAM AMSOM, MATHAMANGALAM DESOM, REP. BY HIS POWER OF ATTORNEY HOLDER MADALAN VALLIYOTTU MUSTHAFA, S/O. KUNHAMED, AGED 58 YEARS, RESIDING AT MUKKUNNU, PARIYARAM AMSOM DESOM, TALIPARAMA TALUK, KANNUR DISTRICT, PIN - 670 503** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev.Nos.394 & 395 OF 2019** 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** **RCRev..No.395 OF 2019** **AGAINST THE JUDGMENT DATED 25.07.2019 IN RCA 162/2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT - II), THALASSERY IN RCP NO.83/2014 OF THE RENT CONTROLLER (MUNSIFF) COURT, PAYYANNUR** ## **REVISION PETITIONER/ APPELLANT/ RESPONDENT :** **M.V.DAMODARAN, AGED 62 YEARS, S/O.RAMAN, MAYYIL VALAPPIL HOUSE, ERAMAM AMSOM, MATHAMANGALAM DESOM, KUTTUR (P.O.), TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670 306.** **BY ADVS. SRI.P.S.BINU SRI.ZUBAIR PULIKKOOL** ## **RESPONDENT/ RESPONDENT/ PETITIONER :** **MADALAN VALLIYOTTU ABDUL NAZAR, S/O.KUNHAMED, RESIDING AT ERAMAM AMSOM, MATHAMANGALAM DESOM, REP. BY HIS POWER OF ATTORNEY HOLDER MADALAN VALLIYOTTU MUSTHAFA, S/O.KUNHAMED,AGED 58 YEARS, RESIDING AT MUKKUNNU, PARIYARAM AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670 503.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev.Nos.394 & 395 OF 2019** 3 ## COMMON JUDGMENT ## K.Harilal, J. These appeals are filed by different tenants under the respondent herein and they are confronting with an order of eviction, concurrently passed by the rent control court as well as the appellate authority. (The parties are referred to as in the rent control petition). The rent control petitions have been filed, as RCP.No.82/2014 and 83/2014, along with other rent control petitions against other tenants, on the averments that the petitioner bona fide needs the petition schedule shop rooms for starting a supermarket, for his brother, who is a dependent on him. He has no avocation for his livelihood and he is a member of his family, who bona fide needs the tenanted buildings, for starting the **RCRev.Nos.394 & 395 OF 2019** **==> picture [7 x 7] intentionally omitted <==** aforesaid supermarket. His other buildings are not suitable for conducting the said supermarket and they have already been occupied by different other tenants. The respondents are not depending upon the income from the tenanted premises and several other buildings are available in the locality, for shifting the respondents' business from the scheduled buildings. 2. The respondents resisted the claim for eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [Hereinafter referred to as, 'the Act'], raising a common contention that the need projected is not bona fide as the brother of the petitioner is not a dependent on him. According to him, the petitioner has several other shop rooms in his possession to start the proposed business. They are depending on **RCRev.Nos.394 & 395 OF 2019** 5 the income from the respective tenanted premises and no other buildings are available in the locality. 3. After considering the evidence on record, the courts below concurrently passed an order of eviction, on a finding that the need projected in the petition is bona fide and the respondents are not entitled to get protection under the 2nd proviso to Section 11 (3) of the Act. The legality and propriety of the aforesaid findings are challenged in these revision petitions. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 5. These revision petitions have filed mainly on the ground that the courts below have concurrently failed to consider the suitability of the building and the respondents' entitlement of protection under the 2nd **RCRev.Nos.394 & 395 OF 2019** **==> picture [7 x 7] intentionally omitted <==** proviso to Section 11 (3) of the Act in its correct perspective. So also, it is contended that the brother of the petitioner is not a dependent of the petitioner as he has other sources of income. 6. We have meticulously gone through the impugned common judgment under challenge and we find that all the aforesaid points are specifically considered and answered by the appellate authority with the support of the decisions laid down by this court and the Apex Court. As regards the suitability of the building, it is admitted that all the tenanted premises are facing towards the main road and it has come out in evidence that the petitioner intends to start supermarket, after removing the inner walls between the rooms and he has already sought the opinion of an Engineer regarding the **RCRev.Nos.394 & 395 OF 2019** 7 said proposal. 7. It is settled by the decision of this Court in Ambika C. v. Padmanabhan and Others [2017 (3) KLT 209] that the tenants have no say as to the suitability of the building unless the need is tainted with malice and illwill. The respondents are conducting business in those buildings and according to them, the age of the building is only 32 to 35 years. The respondents also have no case that the building in question is an old or dilapidated building. No evidence had been brought out by the respondents to prove that the building is not suitable, for conducing a supermarket. Since they are conducting similar business as that of supermarket in their respective tenanted premises, the challenge against the suitability of the building is unfounded and lacks bona fides. Thus, **RCRev.Nos.394 & 395 OF 2019** 8 there is no illegality in rejecting their contention. 8. As regards the respondents' entitlement of protection under the 2nd proviso to Section 11 (3) of the Act, no documentary evidence has been adduced to prove their actual income from the business in the tenanted premises. No accounts were produced. Thus they failed to prove the volume of income which is being derived from the tenanted premises. 9. In Shahul Hameed.A. v. P.E.Abdu Razak [2016 (5) KHC] this Court held that a tenant, who is hiding his income is not entitled to get protection under the first limb of the 2nd proviso. Disclosure of income or profit and expenses for livelihood are indispensable to prove the IInd limb of IInd proviso to Section 11 (3) of the Act. Coming to the 2nd proviso, though no evidence had been **RCRev.Nos.394 & 395 OF 2019** 9 produced by the respondents to prove the non-availability of the alternative buildings in the locality, the petitioner has taken a commission to prove the availability of other buildings in the locality. The Advocate Commissioner in Ext.C1 reported that there is a three storied building on the immediate north of the bus stand where rooms are available for letting. In the absence of any positive evidence to prove the statutory requirements under the 2nd proviso which is conjunctive, the courts below are justified in finding that the respondents are not entitled to get protection under the 2nd proviso. There is no illegality or impropriety in any of the findings whereby the courts below granted an order of eviction under Section 11 (3) of the Act. ## 10. At last, the learned counsel for the revision **RCRev.Nos.394 & 395 OF 2019** 10 petitioner confined his arguments for granting one year time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given six months time from today to vacate the tenanted premises on the following conditions :- 1. The revision petitioner/ tenant shall file an affidavit, within two weeks 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 he will vacate the petition schedule shop room within six months from today. 2. The revision petitioner/ tenant shall deposit the entire arrears of rent, if any, within one month 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, and shall continue to pay the rent without default. **RCRev.Nos.394 & 395 OF 2019** 11 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. Sd/K.HARILAL, JUDGE Sd/ANNIE JOHN, JUDGE RKM