T. H. Abdul Salam v. K. C. Kasim and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MR. JUSTICE EASWARAN S.** **FRIDAY, THE 19[TH] DAY OF JULY 2024 / 28TH ASHADHA, 1946** **RCREV. NO. 69 OF 2022** **AGAINST THE JUDGMENT DATED 26.02.2022 IN RCA NO.107 OF 2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THALASSERY ARISING OUT OF THE ORDER DATED 11.01.2016 IN RCP NO.54 OF 2014 OF MUNSIFF COURT, THALASSERY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **T.H.ABDULSALAM AGED 62 YEARS THUNDIYIL ,BEHIND POLICE QUARTERS, VADIKKAKAM DESOM, POST THALASSERRY,KANNUR DIST.KERALA, PIN - 670101** **BY ADVS. T.ASAFALI LALIZA.T.Y.** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 K.C.KASIM AGED 56 YEARS RABIYA MANZIL, POST NETTUR, THALASSERRY TALUK,KANNUR DIST., PIN - 670105 2 K.C.SALIM AGED 53 YEARS RABIYA MANZIL, POST NETTUR,THALASSRRY TALUK, KKANNUR DIST., PIN - 670105 3 K.C.ASLAM AGED 52 YEARS RABIYA MANZIL, POST NETTUR, THALASSERRY TALUK, KANNUR DIST., PIN - 670105 4 K.C.MOHAMMED AFSAL AGED 51 YEARS RABIYA MANZIL, POST NETTUR, THALASSERRY TALUK,** **RCREV. NO. 69 OF 2022** **2** **THALASSERRY,KANNUR DIST., PIN - 670105** **BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH)(K/1364/2003) M.K.SUMOD(K/116-F/1988) E.MOHAMMED SHAFI(K/1057/1993)** ## **OTHER PRESENT:** **joseph raju mathews adv.commissioner** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON** **19.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RCREV. NO. 69 OF 2022** **3** ## O R D E R ## Amit Rawal, J. 1. The present rent revision petition is directed against the concurrent findings of fact at the instance of the tenant who has not been able to defend eviction sought by the respondent/landlord under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Section 11(3) of the Act deals with the personal necessity. 2. Respondents/four landlords sought the eviction of the petitioner from a scheduled shop rooms which was leased out on 24.9.2005 at the rate of Rs.2,200/- per month. The rate of rent at the time of institution of eviction petition was said to be Rs.2,909.50/-. The building is situated at Narangapuram, abutting to main road and is a busy business center. It was stated that the respondents/landlords are conducting retail outlet of household items in the first floor of the building on partnership basis under the name and style 'Fashion World' and the down stair of the building was occupied by the petitioner/ tenant. There are 5 rooms in the ground floor including petition schedule shop room. The scheduled room is double in the size of the other rooms. Muhammed Midlaj, son of first petitioner wanted to start a business, sale of alternative power generating system including **RCREV. NO. 69 OF 2022** **4** the solar panels. Muhammed Midlaj, at relevant poinit of time, was a final year student of B.Tech in Electronic and Communication. It was alleged that the petitioner-respondent before the rent controller had so many other business concerns and source of income. 3. It was categorically averred that the landlord at an earlier point of time instituted an eviction petition bearing RCP No.164 of 2013 to evict one Fawas, who was occupying the room in the eastern extremity to expand the business. The another ground of eviction was with regard to causing the damage to the property as provided under Section 11(4)(ii) of the Act. 4. Petitioner, tenant contested the aforementioned claim and submitted that the tenancy of the shop originated in the year 1993 with one Haseena, who had collected a huge lump sum of Rs.6 ½ lakhs from the petitioner but admitted the rate of rent much less the business run by the landlord on the first floor under the name and style 'Fashion World'. It was contended that the landlords are the owners of the very same line of business in novelties namely 'Fashion' opposite to the police control room in old bus stand, Thalassery, therefore the bonafide need was not genuine. Muhammed Midlaj had already been conferred with placement somewhere else and therefore had no intention to start **RCREV. NO. 69 OF 2022** **5** any business as alleged. The plea of damages to the property was also denied. 5. Since the parties were at variance, the learned rent controller framed the following issue: 1.Whether the son of the 1" petitioner bona-fide need the petition schedule building to start a business in sale and survive of alternative power generating system including the solar panels? 2. Whether the respondent is entitled to get benefit of first proviso to section 11(3) of the Act? 3. Whether the respondent is entitled to get benefit of second proviso to section 11(3) of the Act? 4. Whether the respondent used the building in such a manner as to destroy or for reducing the value or utility of the petition schedule building materially and permanently? 5. Whether the petitioner is entitled to get eviction under section 11(4) (ii) of the Act? 6. In support of the case examined witnesses and the details of the witnesses and the documents extracted hereunder: ## Petitioner's Exhibits: A1. 24.09.2005 Agreement executed in between Petitioners and defendant. A2. 08.07.2014 Certified copy of Commission report in OS 138/14 of MunsiffCourtThalassery. Α3. 08.07.2014 Certified copy of Plan in OS 138/14 of Munsiff Court Thalassery. A4.Nil–Photograph ## Respondent's Exhibits:- Nil Petitioner's Witness PW1 – Kasim K.C PW2 – Muhammed Midlaj PW3 – Sanal Kumar P.V **RCREV. NO. 69 OF 2022** **6** Respondent's Witness:RW1 – T.H Abdul Salam 7. The categoric case of the petitioner, tenant before the Rent Controller was that if at all there was a genuine and actual bonafide need, the son of the first landlord could have been accommodated in the vacant room available in the locality for the same. A suggestion was made to the PW2 that during the pendency of the case, two rooms were lying vacant in the building and that the same can be utilized but PW2 has stated that the said rooms had been kept vacant for the purpose of conducting business by his sister and brother in law. As far as the other room on the backside, PW2 clarified in the cross examination that the entire building was mainly used to keep waste card board having a lesser extent. On analysis of the evidence, the learned Rent Controller ordered the eviction on the ground of personal necessity. Though during the pendency of the appeal, petitioner-tenant submitted an application for appointment of Advocate Commissioner to ascertain that the two rooms which were lying vacant and had got vacated during the pendency but the explanation given was, it was meant for the sister, in fact, have been let out to jwellers and one company 'Ifone'. Reliance was placed to the photographs. Learned appellate authority declined the application. Appeal preferred **RCREV. NO. 69 OF 2022** **7** before the appellate authority has also been rejected. 8. Learned counsel for the petitioner- tenant submitted that the tenant when appeared as RW1 during cross examination, categorically stated that the rooms on the western side of the petition schedule rooms was occupied by one Prashanth and Balan, who on their own vacated the premises even prior to filing of the application and this fact was admitted by PW1 in cross examination with a rider that the said rooms are vacant and have been kept for conducting the business for sister and brother in law but they have also let out and given to a jwellery shop carrying business under the name and style 'Manavatti Gold'. 9. There are vacant room which have come into direct possession of the landlord situated in the same building complex during and after the institution of the present revision petition and therefore entitled to protection of first proviso under Section 11(3) of the Act. It is trite law that the subsequent events during the pendency of the lis can be a taken into consideration for the effectual and proper adjudication of the subject matter. No plausible and reasonable explanation has been given by the appellate authority while dismissing I.A No.1 of 2021 asking for appointment of Advocate Commissioner to prove the fact there were vacant rooms available in the direct possession of the **RCREV. NO. 69 OF 2022** **8** landlord in the very same building as admitted by PW1 and PW2 which would have eclipsed the bonafide need as projected. Further argued that during the course of the hearing it was pointed out by relying upon the photograph, which was sought to be proved through the assistance of Advocate commissioner that the shops lying vacant adjacent to the shop in dispute have been let out and running the business under the name and style 'Ifone' whereas on the other extreme side, which was meant for the sister and the brother in law has also been let out and the business under the name and style 'Manavatti Gold', is being run. Reliance has also been laid to the report of the Advocate Commissioner appointed by us vide order dated 26.6.2024 whereby the said factum has been proved. In support of the contentions relied upon the judgment in Pasupuleti Venkateswarlu v. Motor and General Traders (1975 KHC 535), Hasmat Rai and Another v. Raghunath Prasad (1981 KHC 618), Chethil Tharemmal Rasheeda v. Peedikayilakath Muhammed (2021 (6) KHC 723, Ramesh Kumar v. Kesho Ram (1992 KHC 692) . 10. On the other hand, learned counsel appearing on behalf of the respondent-landlord submitted that the person's need has to be seen from the date of filing of the petition and cannot be permitted to keep the premises vacant as it would deteriorate the value of the premises and had let out the tenants with a hope that as and when the eviction is **RCREV. NO. 69 OF 2022** **9** finalized would start the business by taking the eviction from other tenants. Provisions of first proviso thus in such circumstances was not attracted. Tenant miserably failed to prove on record the other ingredients of Section 11(3) of the Act regarding the hardship or non availability of the shop in the adjacent buildings. The need was for the son of the petitioner No.1 who wanted to set up the business of alternative power generating system including the solar panels. The disputed shop is bigger in size than the other shops therefore letting out of other shops would not eradicate the need as set up in the rent petition. As far as the report of the Advocate Commissioner dated 1[st] July 2024 is concerned, denied the averments recorded in the report of the Advocate Commissioner who inspected two shop rooms bearing No.45/3553 and 45/3554 of Thalassery Municipality under the name 'Manavatty Gold' of the petition schedule Room (Paint House) run by the petitioner/tenant and two other shops bearing No.45/3548 and 45/3549 under the name and style of 'I Fone' run by the new tenant. 11. We have heard the learned counsel for the parties and appraised the paper book. The aforementioned revision petition stands admitted vide order dated 20.5.2022 and as per the order dated 25.5.2022 interim stay was granted which has become final till further orders. During the course of the hearing, counsel for the petitioner pointed out that the two shop rooms which were vacated during the pendency of the appeal before the appellate authority and the currency of the present petition were let out by the landlord to a different tenant **RCREV. NO. 69 OF 2022** **10** for running a jwellery shop and another shop 'I Fone'. In order to ascertain the truth, we had appointed the Advocate Commissioner permitting him to inspect the premises. The order dated 26.6.2024 reads thus: During the course of argument, it has been stated that the two shops/rooms which were vacated during the pendency of the appeal before the appellate authority and the currency of the present rent control petition has been let out by the landlord to a different tenant who is running a jewellery shop named as ‘I fone’. In order to ascertain the truth, Adv. Joseph Raju Mathews, present in the Court is appointed as Advocate Commissioner. He is directed to inspect the building on 27.6.2024 morning and ascertain as to whether the shop rooms adjacent to the shop run by the petitioner/tenant have been let out and business is being carried out or not. The said Commissioner is appointed at a cost of Rs.50,000/- which shall be paid by the petitioner/tenant before inspection. It shall also include to and fro charges. The Advocate Commissioner is also directed to take the assistance of the local police if need be and take photographs and report the matter before this Court on 01.07.2024. 12. Report of the Advocate Commissioner dated 1.7.2024 has been received and following observations have been recorded in the order dated 2.7.2024. The order reads as under: On the last date of hearing, we had appointed Advocate Commissioner to submit a report and as per the report we found that the two sets of shops vacated in another rent petition, during the pendency of the appeal preferred by the tenant, had been let out to new tenants with a higher rate of rent. Prima facie, according to the representation and submissions of the counsel for the petitioner/tenant, it is a case of aggrandizement to increase the rate of rent. Subject to the instructions from his client, we put this proposal suggested by the counsel for the petitioner/tenant to the counsel for the landlord. He seeks one day’s time to obtain instructions. 13. These facts was already available to the petitioner and sought the indulgence of the appellate authority vide I.A No.1 of 2021 **RCREV. NO. 69 OF 2022** **11** ## wherein paragraph 7 and 8 it was averred as under: 7. Yet another pertinent aspect is that the said Land lords had deposed in the impugned RCP that the shop rooms vacated by Prashanth and Baskaran kept aloof for the husband of the 1 petitioner's female daughter and that the 2 eastern end rooms vacated by Nawas also wanted to be used for Fasion World But the said 2 eastern shops. (bearing Door Nos 45/3553 and 45/3554) parted to third party tenants namely Shamseer and Rafi by collecting huge lakhs as deposits besides for huge monthly rents and such third parties are conducting world business under the name "Manavatty Gold" Similarly western 2 shop rooms bearing door Nos. 45/3548 and 45/3549 were the shop rooms let out to one Sameer and he has been conducting business in Churidhars under the name and style 'PINK WISH'. Recently the said 2 shop rooms also vacated by the said Sameer and those are also stand in the possession of the petitioners as vacant shop rooms Hence it has become necessary to move this petition depute an advocate commissioner to inspect the eastern end 2 shop rooms, and to call for report as to the occupation of third party tenants in respect of the rooms namely 45/3553 and 45/3554, by noting the name and address of the tenants, to note the trade license particulars, the nature of business the name of the business and allied details Similarly the western 2 shop rooms namely 45/3548 and 45/3549 by noting the name and address of the tenants, to note the trade license particulars, the nature of business the name of the business and allied details, otherwise I will be put to irreparable injuries and miseries. To expose the said genuine state of affairs Photo graphs are also produced along with this affidavit. 8. Yet another most prominent event need to be looked into by this Hon'ble Appellate Court is as to the malafides of the petitioners, as the 1 petitioner's son namely Midlaj, for whom the ruse of eviction invented by the petitioners, has already been joined in the Dubai Telecommunication Government Department "Etisalat Dubai" as an Engineer by drawing huge salaries. The totality of the circumstances, would go to show that the very petition of eviction has no legal legs to stand. 14. However the appellate authority, vide separate order dated 26.2.2022 dismissed the application on the ground that the appeal has been dismissed. The order reads thus: **RCREV. NO. 69 OF 2022** **12** For the reasons stated in the judgment the IA is dismissed. No costs. 15. The factual aspect on inspection as borne out from the report of the Advocate Commissioner, falsity in the claim for personal necessity as sought by the respondent-landlord has proved to the hilt. The report of the Local Commissioner and the photographs attached shows that the shop room adjacent to the shop of petitioner, who is running business under the name and style 'Paint House', have been let out. Advocate Commissioner has attached the report of the licence Ext.C6 issued for building number 45/3548 and 45/3549 dated 1.4.2024 respectively. The name of the tenant is none else but Umer Shareef AB. As far as the shop room adjacent to the eastern side of the shop is concerned, it has two shutters and has been taken on lease by Mr.Abdul Raheem P.A and three others and they are doing jewellery business under the name and style 'Manavatty Gold'. Photographs are Ext.C3 and also provided the copy of the agreement dated 7.11.2017 entered into with the respondent whereas the rent petition filed in the instant case is of 2014. Rent controller passed the eviction order dated 11.1.2016. Meaning thereby that the lease deed has been executed after the decision of the Rent Controller. As far as the rent agreement with 'I Fone' is concerned, it is dated 1.9.2023 ie., after the decision rendered by the appellate authority and during the pendency of the present revision petition. The rent details discloses that the 'Manavatty Gold' is paying the rent @ Rs.25,000/- and 'I Fone' is @ Rs.39,000/- whereas the rent given by the petitioner-tenant is too meager. There have been **RCREV. NO. 69 OF 2022** **13** cases where the need as projected by the landlord is genuine and proved despite the extensive cross examination. However, the facts as noticed above would reveal that the need from the beginning was not bonafide but malafide and this fact cannot go unescaped from the notice of this Court, for, the socio-economic conditions of the State / country depends upon the business being conducted either by the landlord or the tenant. The intention of the landlord is not to seek the possession of the building but to fetch more rent. 16. Counsel for the petitioner tenant had given an option to increase the rent which was put to the counsel for the landlord but on the date of hearing when the matter was reserved, apprised the court that the landlord was not interested in allowing the tenant to occupy the premises at higher rate of rent. As an upshot of our findings, the findings of fact and law arrived at by the learned Rent Controller and the appellate authority is illegal, perverse and aberrative. Accordingly, the impugned orders are set aside. R.C. Revision is allowed. Sd/- AMIT RAWAL JUDGE Sd/- sab EASWARAN S. JUDGE **RCREV. NO. 69 OF 2022** **14** ## **APPENDIX OF RCREV. 69/2022** ## **PETITIONER ANNEXURES** |**Annexure1**|**CERTIFIED COPY OF THE ORDER DATED 11TH**| |---|---| ||**JANUARY 2016 MADE IN RCP NO.54/2014 ON**| ||**THE FILE OF THE COURT OF RENT**| ||**CONTROLLER,THALASSERRY**| |**Annexure A-2**|**CERTIFIED COPY OF THE JUDGMENT DATED 26TH**| ||**FEBRUARY 2022 MADE IN RCA NO.107/2016 ON**| ||**THE**<br>**FILE**<br>**OF**<br>**THE**<br>**APPELLATE**| ||**AUTHORITY(ADDL.DISTRICT**<br>**JUDGE**| ||**NO.IV),THALASSERRY**| |**Annexure A-3**|**CERTIFIED COPY OF THE DEPOSITION OF PW-2.**| |**Annexure A-4**|**TRUE PHOTOGRAPH OF THE BUILDING COMPLEX**| ||**INCLUDING THE PETITION SCHEDULE ROOMS AND**| ||**THE VACANT ROOMS WHICH IS IN THE**| ||**POSSESSION OF THE RESPONDENTS.**| ## **RESPONDENT ANNEXURES** |**Annexure C1**|**A copy of the work memo dt. 26.06.2024**| |---|---| ||**issued to the Advocate Commissioner by**| ||**the counsel for the Petitioner.**| |**Annexure C2**|**A photograph of the demised building.**| |**Annexure C3**|**A photograph of the shop "Manavatty**| ||**Gold".**| |**Annexure C4**|**A true copy of the Leave and License**| ||**Agreement dt. 07.11.2017 for the shop**| ||**"Manavatty Gold".**| |**Annexure C5**|**A photograph of the shop room"i Fone".**| |**Annexure C6**|**A true copy of the certificate dt.**| ||**01.04.2024 of IFTE / OS License**| ||**No.BFIF02-M130500-01679-2024 of the shop**| ||**"i Fone".**|