Safarullakhan v. K.M. Subaida

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935** ## **RCRev..No. 146 of 2013** **-------------------------------------AGAINST THE ORDER/JUDGMENT IN RCA 132/2011 of RENT CONTROL APPELLATE AUTHORITY/DISTRICT COURT,KOZHIKODE AGAINST THE ORDER/JUDGMENT IN RCP 69/2010 of ADDITIONAL MUNSIFF-II, KOZHIKODE** **REVISION PETITIONER/APPELLANT/RESPONDENT:** **--------------------------------------------------------------------------** **SAFARULLAKHAN, AGED 51 YEARS, S/O.ABOOBACKERKOYA, RESIDING AT KASABA AMSOM DESOM OF KOZHIKODE TALUK.** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENT/RESPONDENT/PETITIONER:** **---------------------------------------------------------------** **K.M.SUBAIDA, W/O.P.AHAMMED SADIQUE, RESIDING AT 22/663, PATTATT THALIYEKKAL, KULANGARA PEEDIKA, POST POKKUNNU, KOZHIKODE 673 007** **BY ADV. SRI.K.M.FIROZ BY ADV. SMT.M.SHAJNA** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AS** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- RCR No.146 of 2013 ----------------------------------------Dated this the 27[th] day of August, 2013 ## **ORDER** ## Ramachandran Nair, J. This revision petition is filed by the tenant who is ordered to be evicted under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 for the bona fide need of the landlady. The Rent Control Court found that the need pleaded is genuine and ordered eviction which stands confirmed by the Appellate Authority. 2. Before this Court, the learned counsel for the tenant Sri.V.V.Surendran mainly raised three points. First point is the non-examination of the husband of the landlady. The second point is that the landlady has constructed another building where vacant rooms are available and the third point is that the finding on the second proviso to Section 11 (3) is not correct. 3. In the eviction petition, it was pleaded by the landlady that the building was given on rent initially for a monthly rent of `325/- which was enhanced to `750/- later. RCR No.146 of 2013 2 The tenant has shifted his business to a building near the new bus stand, Calicut by name Centruary Complex. The husband of the landlady was doing timber business on partnership basis under the name and style Swadeshi Timbers. He had stopped the business three years back as the business had ended into loss. It was pleaded that he is depending upon the landlady for his livelihood. It was also pleaded that the husband wants to start a business to meet his expenses and to eke out a livelihood. 4. By relying on the judgment in **Thomas John** v **Kochammini Amma** (1994(2) KLT 571) and **J.C.R.Trading (P) Ltd.** v **Varghese** (2009(1) KLT 963), it is contended by the learned counsel for the tenant that the non-examination of the husband of the landlady for whose need the building is sought to be evicted, really affects the genuineness of the bona fide need. 5. In response to the above contention of the tenant, it is answered by the learned counsel for the landlady by submitting that going by the decisions of this Court in **Mustafa Haji** v **Umbichi** (2004(2) KLT 1110) and **C.Karunakaran** v **T.Meenakshi** (2005) 13 SCC 99), the non-examination of the husband is not material as the RCR No.146 of 2013 3 landlady has given evidence on all points. 6. In Thomas John's case (supra) the bona fide need pleaded was for petitioners 1 to 4 and their father alone was examined in that case. This Court held that when the landlord approached the Rent Control Court with a request for eviction on the ground of bona fide need for own occupation, it goes without saying that the need has to be established by him by proper evidence. Bona fide means the state of mind. That state can be manifested only by the person who entertains a desire to have the building for his occupation. It was further held that the position is that in every case the petitioner cannot be insisted to tender evidence to speak about the bona fide need of own occupation. The question how far the nonexamination of the landlord is material has, therefore, to be determined on the facts and circumstances of each case. 8. In J.C.R.Trading (P) Ltd. v Varghese's case (supra) a Division Bench of this Court considered certain earlier judgments and after considering the judgments of this Court in Thomas John's case (supra), it was held that the person who can best manifest the need in his mind to RCR No.146 of 2013 4 have the building which is the subject matter of an eviction petition for his own occupation is the person himself. At the same time, the Division Bench of this Court do not intend to state that in all cases where an eviction petition is filed under Section 11(3), it is obligatory that the landlord petitioner himself mounts the box and testifies regarding the genuineness of the need projected in the RCP. It was also held that if the need projected is not the need for own occupation by the landlord himself but the need is for occupation by a dependent family member of the landlord, then, perhaps, it may suffice that the dependent family member, for whose occupation the landlord petitioner has filed the RCP gives evidence as witness. In fact in Mustafa Haji's case(supra) the landlord sought eviction for the purpose of his son and examined himself. Therein, this Court found that the nonexamination of the dependent son is not material. 9. The decision of the Apex Court in C.Karunakaran's case (supra) held that mere nonexamination of the person for whose need the building was required by itself was no ground to non-suit the RCR No.146 of 2013 5 landlady. In a number of decisions it has been held that it is not necessary to examine the person for whose need the premises are required. It depends on the facts and circumstances of each case. 10. In view of the fact that herein, the necessities are that of the dependent husband, we are of the view that the examination of the landlady will be sufficient to establish the bona fides of the need projected. In Thomas John's case, the facts show that the landlords did not enter the box and the father was examined and it was in that context, it is held that the person, for whose desire the eviction is sought, should be examined. Herein, there cannot be a dispute that the person who owns the building viz. the landlady has been examined. Therefore, we are not satisfied that for mere non-examination of the husband, the landlady will have to be non-suited. The bona fide need shown is found to be genuine by the authorities. The main aspect pointed out by the learned counsel for the tenant is that the Appellate Authority has not considered the aspects disputing the bona fide need. The learned counsel for the respondent submitted that in RCR No.146 of 2013 6 paragraph-7 the details have been discussed. It was found by the Appellate Authority in paragraph-7 that even though the tenant had a plea that the husband of the landlady had some other business, nothing has been proved in evidence. It was also found that even if the husband of the landlady has got any other business, that will not defeat the claim of the landlady. As regards the financial capacity of the landlady or her husband or as regards the capability of the husband of the landlady to conduct such a business of his own, the findings of the Appellate Authority are also in favour of the landlady. Finally, the Appellate Authority has come to the conclusion that there is evidence to the effect that the landlady and her husband have necessary funds to invest in the business proposed to be started and he has the required experience and capability. 13.With regard to the experience, the learned counsel for the respondent landlady submitted that he has already gained experience by attending certain garment shops. In fact it is well settled that previous experience is not required for anybody for starting business. Therefore, as far as the bona fide need is concerned, the factors RCR No.146 of 2013 7 pointed out by the tenant have been rejected by the Appellate Authority after confirming the findings of the Rent Control Court since the tenant failed to establish that the husband of the landlady has got other avocation or business in timber. Since it is a finding of fact, we will not be justified in disturbing the same by exercising the revisional jurisdiction. 14. Sri.V.V.Surendran, the learned counsel submitted that the finding on point No.3 by the Appellate Authority is also not correct. It has come out in evidence that the tenant has another room in Centruary Complex, near the bus stand. There, the business is run by forming a partnership. It was found by the Appellate Authority that the same is the main place of business and therefore, for considering the question as to whether the tenant is entitled for the benefit of the second proviso to Section 11 (3), it will be crucial in that the tenant has to establish that he is depending upon the income derived from the business conducted in the petition scheduled building for his livelihood. It is submitted by the learned counsel Sri.Surendran that therein the tenant is expected to get orders and no real business is being conducted therein. RCR No.146 of 2013 8 Unless there is positive evidence to show that the tenant is mainly depending on the income from the business conducted in the petition scheduled premises, the tenant will not be able to succeed. 15. Apart from the same, the tenant has failed to adduce any positive evidence to show that no other suitable buildings are available for conducting business in the event of eviction. It is well settled that the two limbs of the second proviso to Section 11(3) are conjunctive and the burden is on the tenant. In the above mentioned facts and circumstances, the Appellate Authority and the Rent Control Court found in favour of the landlord. We will not be justified in interfering the above findings of the authorities below. 16. Lastly, by relying upon the affidavit in support of I.A.No.1116 of 2013, the learned counsel Sri.Surendran submitted that the landlady has constructed a new building where in the ground floor four rooms are available, i.e.17/2092-Q, 17/2092-Q1, 17/2092-Q2, 17/2092-Q3. The three rooms have been recently let out. One of the rooms, viz. 17/2092Q is vacant. It is submitted by the learned counsel for the tenant that even RCR No.146 of 2013 9 though this aspect was pointed out, there is no proper examination of the same. Responding the above submission of the learned counsel for the tenant, the learned counsel for the landlady submitted that the document so produced before the Rent Control Court by the Appellate Authority is an information obtained through the Right to Information Act from the Corporation Office, Kozhikode. The said document was not accepted as it did not contain the seal. It was also submitted that the letter dated 27.4.2012 from the Corporation Office shows that the landlady is having three rooms in her name and there is nothing to show that any of the rooms are remaining vacant. The other letter which is also dated 20.4.2004 states that the ownership of room Nos.17/2092Q1, 17/2092Q2 and 17/2092Q3 are in the joined names of Sainabi K.M., Jameela K.M., Suhrabi K.M., Subaida K.M. and Rehmath K.M. Subaida K.M. (the landlady) is also having ownership in respect of all the rooms in the building. It is clear that she is a co-owner along with the other owners. Therefore, it cannot be said that she is in exclusive possession or occupation of any vacant room. RCR No.146 of 2013 10 For all the above mentioned reasons, we confirm the orders passed by the authorities below and we dismiss this revision petition. We grant time up to 28.2.2014 for the tenant to vacate the petition schedule building on the following conditions: a) The tenant will file an affidavit before the Rent Control Court or the Execution Court, as the case may be, undertaking to vacate the premises within the above period. It will be filed within one month from today. b) Any arrears of rent as on today will be paid within one month. The tenant will continue to pay rent at the same monthly rate till vacant possession is handed over to the landlady. If any of the conditions are violated, the landlady will be free to approach the Execution Court. **sd/- T.R.RAMACHANDRAN NAIR JUDGE** **sd/- A.V.RAMAKRISHNA PILLAI JUDGE** ## **css/ true copy** ## **P.S.TO JUDGE**