SHAHI S/O AHAMMED v. M.D. RASHEED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 21ST DAY OF DECEMBER 2017/30th Agrahayana, 1939** **RCRev..No. 428 of 2017 ()** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN RCP 61/2010 OF FIRST ADDITIONAL MUNSIFF COURT(RENT CONTROL COURT), TRIVANDRUM DATED 31-07-2013** **AGAINST THE ORDER/JUDGMENT IN RCA 31/2013 OF THE RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM DATED 24-08-2017** **REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ COUNTER PETITIONER:** **------------------------------------------------------------------------** **SHAHI S/O AHAMMED, AGED 50 YEARS, SABEENA BAKERY, TC 40/1689, ATTAKULANGARA, MANACAUD P.O, THIRUVANANTHAPURAM DISTRICT** **BY ADVS.SRI.SAIJU S. SRI.P.H.RISHAD** ## **RESPONDENT(S)/RESPONDENT/ RESPONDENT/ PETITIONER :** **--------------------------------------------------** ## **M.D. RASHEED** **S/O DAWOOD AGED 52 YEARS, RESIDING AT DOOR NO. 14/1830, CHULLIKKAL RAMESWARAM ( WEST), THOPPUMPADY, ERNAKULAM DISTRICT 682 006** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & A.M.BABU, JJ. .......................................... RCR No.428 of 2017** **........................................... Dated 21[st] December, 2017** ## **ORDER** ## **K.HARILAL, J.** The revision petitioner is the tenant who suffered an order of eviction passed by the Rent Control Court under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act') which stands confirmed in appeal. According to the petitioner, the petition schedule building is required for starting a business for an avocation to eke out livelihood. He has no other building of his own in his possession to start the said business. Several other vacant buildings are available in the locality for the occupation of the respondent/tenant. 2. The respondent resisted the claim for eviction under Sec.11 (3) of the Act contending that the need projected in the petition is a pretext for eviction only. According to him, the property was purchased in collusion with the prior landlord with a malafide intention to evict the petitioner from the tenanted premises. At the time of purchasing the property also, the respondent is in possession of the building on the basis of a rental arrangement with Nadeera Begum, the vendor of the 2 RCR No.428 of 2017 property as well as the prior landlord of the respondent. The petitioner is a native of Ernakulam and he purchased the petition schedule building with the sole intention of evicting the petitioner from the tenanted premises. 3. Aggrieved by the violation of the agreement for sale with the prior landlord Nadeera Begum, the respondent has filed O.S No.1557/2009 before the First Additional Munsiff's Court, Thiruvananthapuram for restraining Nadeera Begum from selling property and sale deed was executed during the pendency of the said suit. The said sale deed is a sham document and the petitioner is a close relative and stooge of the said Nadeera Begum and the petition is a last attempt to evict him by hook or crook. So also it is contended that he is mainly depending on the income from the tenanted premises and no other alternative vacant buildings are available in the locality for his occupation. 4. On the aforesaid rival contentions both parties adduced evidence and on appreciation of the evidence the courts below concurrently found that the need projected in the petition is bona fide and the respondent is not entitled to get protection 3 RCR No.428 of 2017 under the proviso to Sec.11 (3) of the Act. Thus, the legality and propriety of the aforesaid findings have come up in this revision. 5. The learned counsel for the petitioner advanced arguments contending that the courts below have failed to consider the evidence on record available under the respondent's contention that Ext A1 sale deed is a sham document executed for the purpose of evicting the respondent from the tenanted premises. It is also contended that the courts below have not considered Ext B5 judgment passed in favour of the respondent and the agreement for sale stood in favour of the respondent in its correct perspective. No other point has been raised, before us, in this revision petition. 6. Going by the concurrent findings of the courts below under Sec.11 (3), we find that the respondent has raised aforesaid contentions before the appellate authority and the appellate authority has considered the aforesaid two contentions in its correct perspective and rejected. Ext B5 is a judgment obtained by the respondent against the petitioner restraining the petitioner from evicting the respondent forcefully from the tenanted 4 RCR No.428 of 2017 premises. We are of the opinion that the said judgment will not stand in the way of passing an order directing the respondent to put the landlord in possession of the tenanted premises under Sec.11 (3) of the Act. As regards the alleged agreement for sale the appellate authority specifically observed that no evidence was produced before the Rent Control Court to prove the alleged agreement. So also, even if there was an agreement for sale and violation of the terms of agreement by the landlord, the same will not stand in the way of proceedings against the petitioner seeking an order of eviction under the provisions of the Act. In the above view, the courts below are justified in rejecting the contention raised on the basis of the alleged agreement for sale. 7. To prove the bona fides of the need the petitioner was examined as PW1 and he has testified as to bona fide of the need and the courts below specifically observed that nothing has been brought out, in the evidence of PW1, to suspect the bona fide of the need spoken to in his chief examination. The respondent has no case that the courts below have omitted to consider any valuable evidence or placed reliance on any irrelevant evidence 5 RCR No.428 of 2017 on record. Therefore we are not inclined to re-appreciate evidence of PW1 on bona fide of his need. 8. Coming to the first proviso the respondent has no case that the petitioner has his own buildings in his possession for the proposed business. As regards the second proviso it is trite law that the burden of proof is on the tenant. But the courts below concurrently found that no evidence has been adduced to prove the income derived from the business in the petition schedule building. In the absence of evidence to prove average income derived from the petition schedule building, the courts below are justified in rejecting the contention that the petitioner is mainly depending on the income from the tenanted premises. The above view is justified by the decision of this Court in **2016 (5) KHC 820 (Shahul Hameed vs Abdul Rasaq)** wherein this Court has held that no tenant can claim protection under the second proviso to Sec.11(3) of the Act after hiding his income and evidence must be produced to prove his approximate income from the trade or business and his average living expense to find out the dependency on the income from the business in the tenanted 6 RCR No.428 of 2017 premises. 9. As regards the second limb of the second proviso also the burden is on the tenant. But, the respondent failed to produce any evidence to prove that no other vacant buildings are available in the locality. The courts below are justified in finding that the respondent is not entitled to get protection under the second proviso also. We do not find any kind of illegality or impropriety in the findings of the courts below granting order of eviction under Sec.11 (3) of the Act. Hence this revision stands dismissed. 10. The learned counsel for the revision petitioner sought for one year time to surrender vacant possession of the petition schedule shop. 11. Having regard to the submission made by the learned counsel, the revision petitioner is given eight months' time till 21.8.2018, to vacate the tenanted premises subject to the following conditions. The revision petitioner shall file an affidavit expressing an undertaking to vacate the premises on or before 21.8.2018. It shall also be undertaken, in the same affidavit, that 7 RCR No.428 of 2017 no further time will be sought under any circumstance for vacating the tenanted premises. The affidavit shall be filed before the executing court, within a period of two weeks from the date of receipt of the copy of this order. The entire arrears of rent, if any, shall be paid within a period of one month from the date of receipt of the copy of this order. Rent shall be paid on or before the due date, till vacation of the tenanted premises. This Rent Control Revision is dismissed. Sd/- **K.HARILAL Judge** sd/- **A.M.BABU Judge** _sks/22.12.2017_