T. V. Suharabi and Others v. K. Selvaraj and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940** **RCRev..No. 328 of 2017** **AGAINST THE JUDGMENT DATED 27-10-2014 IN RCA NO.17/2011 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY** **AGAINST THE ORDER DATED 20-08-2010 IN RCP NO.208/2008 of RENT CONTROL COURT, KANNUR** **REVISION PETITIONERS/RESPONDENTS 1,2 & 4 PETITIONERS 1,2 & 4:-** **---------------------------------------------------------------** ## **1 T.V.SUHARABI** **AGED 57 YEARS, W/O. LATE MOHAMMED ALI, ZAIL, NEAR MUNICIPAL QUARTERS, P.O.THANA, KANNUR - 670 012.** ## **2 T.V. REHMATH,** **AGED 34 YEARS, D/O. LATE MOHAMMED ALI, ZAIL, NEAR MUNICIPAL QUARTERS, P.O.THANA, KANNUR - 670 012.** ## **3 T.V. MUHATHASIN,** **AGED 28 YEARS, S/O. LATE MOHAMMED ALI, ZAIL, NEAR MUNICIPAL QUARTERS, P.O.THANA, KANNUR - 670 012.** **BY ADVS.SRI.V.R.KESAVA KAIMAL** **SMT.C.DEVIKA RANI KAIMAL** ## **RESPONDENTS/APPELLANT/3RD RESPONDENT/RESPONDENT/3RD PETITIONER:** ## **1. K.SELVARAJ,** **AGED 59 YEARS, S/O. JOHN, BUSINESS, ROOM NO. CH 248, CHOVVA POST OFFICE COMPLEX, MELE CHOVVA, KANNUR - 670 006.** ## **2. T.V. MUHASIN,** **AGED 31 YEARS, S/O. LATE MOHAMMED ALI, ZAIL, NEAR MUNICIPAL QUARTERS, P.O.THANA, KANNUR - 670 012.** **R1 BY ADVS. SMT.DAISY A.PHILIPOSE SRI.HARIDAS THAIKKANDY** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07-08-2018, ALONG WITH R.C.R. Nos. 339 of 2017, 341 of 2017, 353 of 2017& 353 of 2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL & ANNIE JOHN,JJ.** **= = = = = = = = = = = = = = = = = = = = = R.C.R.Nos.328, 339, 341, 353 & 354 of 2017 - - - - - - -- - - - - - - - - - - - - - - - - - - -** _Dated this the 7[th] day of August, 2018_ ## **O R D E R** ## **K. Harilal, J.** Since all these revisions are filed, challenging a common judgment passed by the Rent Control Appellate Authority and the parties are common, these revision petitions are heard together and disposed of by this common order. Revision petitioners are common landlords in the Rent Control Revisions and respondents are different tenants, who are occupying different shop rooms owned by the revision petitioners. The parties are referred to as in the Rent Control Petitions. 2. The petitioners filed the rent control petitions, seeking an order of eviction under Section 11(3) the Kerala Buildings(Lease and Rent **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 2 :-** Control) Act, 1965 _(hereinafter referred to as 'the Act')._ According to them, they _bona fide_ need the petition schedule shop rooms for starting a supermarket for the 3[rd] petitioner. The respondents resisted all the Rent Control Petitions, contending that the need projected in the Rent Control petitions is not _bona fide_ and they are entitled to get protection under the second proviso to Section 11(3) of the Act. After considering the evidence on record, the Rent Control Court allowed all the rent control petitions. Feeling aggrieved, the respondents preferred rent control appeals and the Rent Control Appellate Authority reversed the findings of the Rent Control Court and dismissed all the Rent Control Petitions, on a finding that the need projected is not _bona fide_ . Thus, the legality and propriety of the divergent findings on _bona fide_ need of the petitioners have come up in **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 3 :-** revision for consideration of this Court. 3. According to the petitioners, there are seven rooms, including petition schedule rooms and one staircase room in the ground floor of the building. They are in _bona fide_ need of the six shop rooms situated in the ground floor of the building, for starting a mini supermarket for the 3[rd] petitioner. The 3[rd] petitioner has completed his studies; but he is not having any job or income. After the death of his father, the entire burden to maintain the 1[st] petitioner and other petitioners is upon the 3[rd] petitioner. They have no other buildings of their own to start the said mini supermarket and several other buildings are available in the locality to shift the business carried on in the petition schedule shop rooms. The respondents are not depending upon the income derived from the business in the respective tenanted **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 4 :-** premises. 4. The respondents resisted the claim under Section 11(3) of the Act, contending that the need is not _bona fide_ and it is a ruse for eviction only. According to them, the petitioners are getting huge amount as rent and the 3[rd] petitioner is the person, who is collecting the rent. So, there is no need for starting a new business for the 3[rd] petitioner. The 3[rd] petitioner is having landed property also. The respondents are depending upon the income derived from the business carried on in their respective tenanted premises and no other vacant rooms are available in the locality to shift their business from the tenanted premises. They have no other source of income and it is very difficult to shift the business from the tenanted premises. They prayed for dismissal of the rent control petitions. 5. On the aforesaid rival pleas, both parties ## **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 5 :-** adduced evidence, which consists of the oral testimony of PW.1 and Exts.A1 and A2 from the part of the petitioners and the oral testimony of RWs.1 to 3 and Exts.B1 and B2 from the part of the respondents. After considering the evidence on record, the Rent Control Court allowed the applications, which stand reversed by the Appellate Authority. 6. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents. 7. The learned counsel for the petitioners submits that the findings on _bona fide_ need, whereby the Appellate Authority reversed the findings of the Rent Control Court are perverse and warrant interference of this Court under the revisional jurisdiction. The learned counsel further submits that at the time of filing the rent control ## **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 6 :-** petitions, the 3[rd] petitioner was in his native place and was having no avocation or income. He went abroad during the pendency of the rent control petitions and his employment abroad was intended to fill the time gap till the delivery of the petition schedule shop rooms in execution of the decree that may be passed against. But, the Appellate Authority went wrong by deriving lack of _bona fides_ from such a temporary employment for the time being. It has come out in evidence by the examination of the 3[rd] petitioner himself that he will come back at the moment, when they get the petition schedule shop rooms. According to him, he has no permanent employment abroad and he visited the gulf country for a short period only. Further, during the pendency of the rent control petitions, petitioners got vacant possession of the sixth shop room, since all the petition schedule shop rooms were required **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 7 :-** for starting the mini supermarket. He was forced to let out the shop room temporarily to another person on an assurance that he will vacate the shop room, as and when required. So the temporary letting of the vacant shop room till they get the vacant possession of the other shop rooms involved in Rent Control Petitions have no fundamental impact and the _bona fides_ of the need. But, the Appellate Authority went wrong by reversing the findings of the Rent Control Court, on a finding that his employment abroad and non-examination of the person to whom the sixth room was entrusted are fatal to the _bona fides_ of the need. 8. Per contra, the learned counsel for the respondents advanced arguments to justify the findings of the Appellate Authority that the employment abroad of the 3[rd] petitioner and the letting out of the sixth room to another person have **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 8 :-** fundamental impact on the _bona fides_ of the need. 9. In view of the arguments at the Bar, the only point to be considered in this revision is, whether there is any illegality or impropriety in the findings, whereby the Appellate Authority reversed the order of eviction under Section 11(3) of the Act, on a finding that the need projected is not _bona fide?_ Going by the impugned judgment passed by the Appellate Authority, it could be seen that the Appellate Authority reversed the findings of the Rent Control Court on two grounds only. According to the Appellate Authority, at the time when evidence was taken, the 3[rd] petitioner was working abroad and the _bona fides_ of the need had been lost by the employment abroad, after filing of the rent control petitions. Similarly nonproduction of his passport is also fatal to the _bona fide_ need. **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 9 :-** 10. It is not disputed that at the time of filing the rent control petitions, the 3[rd] petitioner was residing in his native place and at that time, he had no avocation or any kind of income earning activity. In the counter-statement, it is a common contention that there is no need for starting a mini supermarket, as the 3[rd] petitioner himself is collecting rent from various tenants and he is getting substantial amount as rent from various tenants. 11. Admittedly, during the pendency of the Rent Control Petitions, the 3[rd] petitioner went abroad and he came back two days before the trial and he was examined as PW.1. He deposed in tune with the averments with respect to the _bona fide_ need projected in the rent control petitions and he admitted that he went abroad for a short period on a visiting visa. According to him his sister is ## **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 10 :-** residing abroad and he went to gulf country on a visiting visa sent by his sister. He expressed his desire to start the mini supermarket at the moment, when they get the vacant possession of the petition schedule shop rooms. There is no evidence to show that he is permanently employed abroad. Nothing has been brought out in his cross-examination to make his desire to start mini supermarket unbelievable or suspicious, despite his temporary employment abroad. 12. In the above context, assume that the 3[rd] petitioner got an employment in gulf country, can the said employment be taken as a decisive factor, which would nullify the _bona fides_ of the need. This question was considered by this Court, in the decision reported in _**Raveendran M.N. and Another v. V.V. Sivaprasad**_ [2017(5) KHC 240]. In the aforesaid decisions, this Court held as follows: _“13. It is a matter of fact that generally, an employment abroad, particularly in Gulf, is always under the_ **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 11 :-** _shadow of insecurity. When he is at the threat of termination abruptly, he may be apprehensive of his future, after returning to India. Such apprehension must be too much painful, if his children are at tender age and students. Similarly, a Non Resident Indian, who had spent a considerable time abroad, in his life, may be desirous of living along with his family and seeking a new avocation for livelihood in his place of residence. Such a desire cannot be said to be whimsical or fanciful. If a landlord wishes to live comfortably along with his wife and children in his native place, by doing some business in the tenanted building, neither the tenant nor the Court can compel him to squeeze himself and continue there. In such circumstances, a landlord, who had let out his shop room to others for rent, may be in need of occupying the building, after evicting the tenants, to start a new avocation. We are of the view that such a need can never be said to be one without bona fides or it is a ruse for eviction, if he succeeds in proving such a circumstance. In the light of the aforesaid decisions, a bona fide prospective need of a Non Resident Indian under S.11(3) of the Act cannot be rejected, at the threshold, on the ground that he is still working abroad and the need is not a current or urgent one. Therefore, the Appellate Court is justified in reversing the findings of the Rent Control Court rejecting the claim under S.11(3) of the Act on the finding that the need is not a bona fide one as it is not current or urgent.”_ 13. In the instant case, absolutely there is no evidence to show that the 3[rd] petitioner is **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 12 :-** employed abroad. In view of the decisions, it can be safely concluded that even if he is employed abroad, the employment abroad has no fundamental impact on the _bona fide_ of the need. Therefore, non-production of his passport before the Rent Control Court is of no consequence at all and the Appellate Authority is not justified in finding that non-production of the passport of the 3[rd] petitioner before the Rent Control Court is fatal. 14. Coming to the next question, the question to be considered is, whether the Rent Control Appellate Authority is justified in finding that letting of one shop room, which was not involved in the batch of Rent Control Petitions, during the pendency of the rent control proceedings and nonexamination of the tenant to whom the one shop was let out temporarily are fatal to the _bona fides_ of the need. ## **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 13 :-** 15. It has come out in evidence that during the pendency of the rent control proceedings, he got vacant possession of the remaining one room, which was not involved in the batch of Rent Control Petitions and he has temporarily let out the shop room to one Shine. According to the 3[rd] petitioner, the said shop room was let out for the time being, till the starting of mini supermarket, on an assurance from the tenant that he will vacate the tenanted premises, as and when required. 16. Going by the impugned judgment, it could be seen that the Appellate Authority itself observed that the owner of the building cannot be insisted to keep the vacant room idle for several years till he gets the vacant possession of other tenanted premises involved in a batch of Rent Control Petitions. When the 3[rd] petitioner was crossexamined in evidence, he stood by his explanation ## **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 14 :-** that the letting of one vacant room to Shine was temporary, for the time being only. But, the respondent could not discredit his evidence in this respect. 17. That apart, it is to be borne in mind that the said vacant room, which was let out temporarily was not involved in the batch of rent control petitions. No rent control petition was filed with respect to that room. Therefore, the letting of that single room, during the pendency of the batch of rent control petitions with respect to other five rooms, has no fundamental impact on the _bona fides_ of the need projected in the batch of rent control petitions, whether the subsequent letting was permanent or temporary. Even if he had let out that single vacant room permanently, it can be inferred that he has no intention to use that room for the need of supermarket, and it cannot be inferred that ## **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 15 :-** he dropped his plan to start supermarket in the other five rooms involved in the batch of rent control petitions. Indisputably, long years would be taken to get a finality in the rent control petitions seeking eviction. No way such a subsequent letting of one vacant room would affect the _bona fides_ of the need to start supermarket in other five rooms. Therefore, we find that the nonexamination of the person to whom the petitioner subsequently let out one vacant room, would not affect the _bona fides_ of the need. Therefore, the Appellate Authority is not justified in reversing the findings of the Rent Control Court, on _bona fides_ of the need and dismissing the Rent Control Petition. 18. In the above analysis, the findings whereby the Appellate Authority negatived the _bona fides_ of the need, are set aside and the order of ## **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 16 :-** eviction passed by the Rent Control Court under Section 11(3) of the Act is restored. Resultantly, these revision petitions will stand allowed. The respondents in all revision petitions shall put the revision petitioner in possession of the respective petition schedule shop room. 19. The respondents sought for one year time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioners are given eight months time from today to vacate the tenanted premises on the following conditions: _(i) The respondents in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within eight months, from today._ ## **R.C.R. Nos.328, 339, 341, 353 & 354 of 2017** ## **-: 17 :-** - _(ii)The respondents/tenants shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default._ - _(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioners/landlords will be at liberty to proceed with the execution of the eviction order._ These rent control revisions are allowed accordingly. All pending Interlocutory Applications will stand closed. Sd/- **K. HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** DST //True copy// P.A. To Judge