T. Hameed v. Aboobacker

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 RCRev..No. 377 of 2011 --------------------------RCA.67/2010 of ADDL. DISTRICT COURT, OTTAPALAM RCP.5/2009 of MUNI-MAGI.COURT/RENT CONTROL COURT,PATTAMBI .................... ## REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------- T.HAMEED, S/O MOIDEENKUTTY HAJI, THIYYATTIL, PULASSERY AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA RESPONDENT(S): PETITIONER ---------------------------------- ABOOBACKER,S/O KUNHIMUHAMMED MUSALIYAR, ANDIKKATTIL, PULASSERY AMSOM DESOM, OTTAPALAM TALUK. 679 101. ADV. SRI.SANTHEEP ANKARATH FOR R-1 SRI.SUMODH MADHAVAN NAIR FOR R-1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/10/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.377 of 2011 -----------------------------------------------Dated this the 18[th] day of October, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenant is the revision petitioner and he challenges in this revision the judgment of the Rent Control Appellate Authority confirming the order of eviction passed under sub section 3 of Section 11 against him. The eviction is ordered on the ground of arrears of rent also. But it was submitted by the learned counsel for the petitioner that as the eviction ordered under Section 11(2)(b) is a tentative eviction order it will suffice if the petitioner is granted sufficient time for making requisite deposits and getting the above order vacated. We therefore, in this revision are concerned only with the correctness of the order of eviction concurrently passed under sub section 3 of Section 11. The need projected by the landlord in the RCP was that the petition schedule building is required bona fide for the R. C. R. No.377 of 2011 -2- commencement of a Bakery-cum-Cool Bar business by himself. The bona fides of the need was disputed. It was contended that the RCP is liable to fail by virtue of the first proviso to sub section 3 of section 11. It was also contended that at any rate the petitioner is entitled for the protection of the second proviso to sub section 3 of Section 11. Parties went for trial and the evidence before the Rent Control Court consisted of the oral evidence of PW1 the Panchayath Secretary and PW2 the landlord. The documentary evidence on the side of the landlord consisted of Exts.A1 to A9. On the side of the tenant the evidence consisted of RW1 tenant and RW2 the Panchayath Secretary who was interestingly examined as a witness on the side of both parties. Documentary evidence on the side of tenant consisted of Exts.P1 to P19. The Commissioner's Report submitted by the Advocate who conducted the local inspection was marked as Ext.C1. The Rent Control Court on evaluating the evidence came to the conclusion that the need is bona fide. It was also concluded that the second proviso to sub section 3 of R. C. R. No.377 of 2011 -3- Section 11 does not operate against the landlord and accordingly order of eviction was passed. Though the tenant carried the matter in appeal, the Appellate Authority on making a re-appraisal of the evidence would concur with all the findings of the Rent Control Court. Accordingly, the appeal was dismissed. 2. In this revision various grounds are raised assailing the judgment of the Appellate Authority. Though the learned counsel for the revision petitioner addressed arguments on the basis of the grounds raised in this revision, he would give more thrust in his submissions to the ground based on applicability of the first proviso to sub section 3 of Section 11. It was submitted by the learned counsel that the reliance placed by the authorities below on the judgment of this Court in _Asher v. Hassankutty Hajee (2004(2) KLT 446)_ was not justified. Referring to judgment of a learned Single Judge of this Court Kanaran Nair v. State of Kerala (1996(2) KLT 156), it was submitted that the ratio of the above judgment requires re-consideration. According to the learned counsel, R. C. R. No.377 of 2011 -4- the statutory provision does not insist on exclusive or absolute ownership. It insists only on ownership. Co-owner is an owner of every infinitesimal portion of the building hence, is as much an owner as the absolute owner. The distinction drawn by the above judgment between absolute owner and co-owner is not warranted. The learned counsel argued that it was conceded by the landlord in his evidence as PW2 that two rooms having Door Nos.590 and 591 are in the possession and keys of his sister, his co-owner. When it is so conceded the landlord had the obligation to plead and prove special reasons as to why either of those two rooms could not have been utilized for accomplishing the need projected in the RCP. There is no such plea and much less proof. The learned counsel would assail the finding concurrently entered by the Rent Control Court and the Appellate Authority that the tenant has not established his eligibility for the protection of the second proviso. The tenant has given convincing evidence to the effect that the Bakery business accounts for the only means of the tenant's R. C. R. No.377 of 2011 -5- livelihood. It has also come out in evidence that other suitable buildings are not available in the locality for the tenants to shift their business in the event of eviction. Thus both the limbs of the second proviso have been established in the tenant's favour. Hence, eviction should not have been passed under sub section 3 of Section 11. 3. All the submissions of the learned counsel for the revision petitioner were resisted by Sri.Santheep Ankarath. Sri.Santheep would draw our attention to the rival pleadings and submitted that on a specific plea as to the RCP is liable to fail by virtue of the first proviso to sub section 3 of Section 11. Drawing our attention to certain salient aspect of the evidence Sri.Santheep submitted that it had been established that Room Nos.590 and 591 were not in vacant possession of the landlord's sister at the time when the RCP was instituted. The counsel also reminded us of the attenuated nature of the revisional jurisdiction under section 20 and submitted that in the present jurisdiction this Court is not expected to make a re-appraisal of the evidence for the R. C. R. No.377 of 2011 -6- purpose of arriving at factual conclusions different from those arrived at by the statutory fact finding authorities especially when such findings have been entered on the basis of evidence. 4. We have very anxiously considered the rival submissions addressed at the Bar. We shall first deal with the argument that the judgment of this Court in _Asher v. Hassankutty Hajee (2004(2) KLT 446)_ requires reconsideration. We have no hesitation to say that we have not been persuaded to take the view that the above judgment requires re-consideration. The principle underlying the first proviso to sub section 3 of section 11 is that when the landlord has under his ready ownership and possession another building which he can straight away occupy or accommodate for the purpose of accomplishing the need projected in the RCP, he should not be allowed to evict an estranged tenant. When the landlord is having co-ownership only over a given vacant building then he may have to seek the permission of his co-owner or co-owners to occupy that R. C. R. No.377 of 2011 -7- building for accomplishing the need projected by him in the RCP. We do not find anything in the judgment in Abdul Nazar v. Mammad Koya (2011(2) KLT 914) which disapproves the ratio in Asher's case. Kanaran Nair v. State of Kerala (1996 (2) KLT 156) was given in an entirely different factual and legal matrix. The question that arose there was as to whether a person who had in his possession land suitable for erection of a house or homestead as a co-owner can be allowed to claim the status of the “Kudikidappukaran”. This Court held in Kanaran Nair's case (cited supra) that before a person who holds land in his capacity as a co-owner wants the benefit of Section 2(25) of the Act, he is to clearly plead and prove that he is not in a position to put a homestead in the co-ownership land. The above decision in our opinion does not have any application. Even though there is some indication in the oral evidence that one room in the ground floor under co-ownership was vacant, it is significant to note that the tenant did not take the pains to seek for issuance of a commission. R. C. R. No.377 of 2011 -8- 5. Coming to the other aspects of the matter, having gone through the judgment of the Appellate Authority we find that the findings regarding the bona fides of the need and also regarding the tenants' eligibility for protection of the second proviso are all entered by the Appellate Authority on the basis of a correct appreciation of the evidence on record. They are reasonable findings which do not warrant interference within the limits of the revisional jurisdiction under Section 20. The revision necessarily fails. 6. Counsel for the petitioner requested for grant of two years' time to vacate the premises. This request is opposed by counsel for the landlord. We feel that there is justification for granting one year's time subject to certain conditions. 7. The result is that the RCR is dismissed. Revision petitioner is granted one year's time i.e. till 15/10/12 subject to the following conditions:- 1) The revision petitioner shall file an affidavit before the execution court or the Rent Control Court as the case may be within three weeks from today undertaking to give R. C. R. No.377 of 2011 -9- peaceful surrender of the building on or before 15/10/12 and undertaking further that arrears of rent if any due will be discharged within three weeks from today and that occupational charges at the existing rent rate will be paid without fail till actual surrender of the building is given. Revision petitioner will get the benefit of time as allowed above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-