THEKKEPEEDIYEKKAL ALI v. PARAPPURATH SAFIYA, PARAPPURATH ABDUL RAHOOF, PARAPPURATH RUBEELA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 29TH DAY OF AUGUST 2017/7TH BHADRA, 1939** **RCRev..No. 198 of 2015 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 39/2013 OF THE RENT CONTROL APPELLATE AUTHORITY/ADDITIONAL DISTRICT JUDGE, TIRUR DATED 09-01-2015 AGAINST THE ORDER/JUDGMENT IN RCP 59/2012 OF THE RENT CONTROL COURT/ MUNSIFF COURT, TIRUR DATED 30-10-2013** **REVISION PETITIONER(S)/RESPONDENT IN RAC/RESPONDET (TENANT) IN RCP: ------------------------------------------------------------------** ## **THEKKEPEEDIYEKKAL ALI** **S/O. THEKKEPEEDIYEKKAL MAMMI HAJI, REPRESENTED BY POWER OF ATTORNEY HOLDER SADATH K,V, AGED 45 YEARS, S/O. AHAMMEDKUTTY, KADAVANDI VALAPPIL, P.O.KOOTTAYI, TIRUR TALUK - 676 562.** **BY ADVS.SRI.T.SETHUMADHAVAN (SR.) SMT.N.DEEPA** **RESPONDENT(S)/APPELLANT IN RCA/PETITIONERS (LANDLORD) IN RCP: -------------------------------------------------------------** **1. PARAPPURATH SAFIYA, AGED 56** **W/O. HYDROS HAJI, THANALOOR AMSOM, PAKARA DESOM, P.O.THANALOOR, TIRUR TALUK - 676 101.** **2. PARAPPURATH ABDUL RAHOOF, AGED 34** - **S/O. HYDROS HAJI, THANALOOR AMSOM, PAKARA DESOM, P.O.THANALOOR, TIRUR TALUK - 676 101.** **3. PARAPPURATH RUBEELA, AGED 36** **D/O. HYDROS HAJI, THANALOOR AMSOM, PAKARA DESOM, P.O.THANALOOR, TIRUR TALUK - 676 101.** **R1 BY ADV. SRI..VINOD RAVINDRANATH (CAVEATOR) R BY T.KRISHNANUNNI(SR) R BY SRI.SAJU.S.A** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.HARILAL & A.M.BABU, JJ. .......................................... RCR No.198 of 2015 ........................................... Dated 29[th] August, 2017** ## **ORDER** ## **K.HARILAL, J.** The revision petitioner is the tenant in RCP No.59/2012 on the files of Rent Control Court, Tirur and the said application was filed under Secs 11 (2) (b), 11 (3) and 11 (8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter 'the Act' in short). According to the landlords, the petition schedule building was required for starting a bridal shop and they have no other vacant buildings in their possession in the same locality to start the said business. Thus the petition was filed for their own occupation. 2. The tenant resisted the said contention contending that the need projected in the petition is tainted with malafides. According to the tenant, the rent control petition was intended for getting enhancement in the quantum of rent. Further it was contended that the landlords have other vacant shop rooms of their own to 2 RCR No.198 of 2015 start the proposed business and the petitioner is entitled to get protection under the second proviso to Sec.11 (3) of the Act. Further it is contended that earlier landlords have filed RCP 21/2008 and obtained an order of eviction under Sec.11 (3) of the Act for the very same need and thereafter they have let out the petition schedule shop rooms to the tenant himself for enhanced rent and it shows that the present need projected in the petition is also intended for getting higher rent. 3. On the aforesaid pleadings both parties adduced evidence and after considering the evidence on record, the Rent Control Court dismissed the petition. The landlords preferred an appeal before the appellate authority as RCA No.39/2013. After re-appreciating the evidence on record the appellate authority reversed the findings of the rent control court and allowed the appeal under Sec.11 (3) of the Act. Thus, the legality and propriety of the divergent findings of the courts below under Sec.11 (3) of the Act have come up in revision before us. 4. Heard the learned counsel for the petitioner and 3 RCR No.198 of 2015 the learned counsel for the respondents. 5. The learned counsel for the petitioner mainly canvassed the point that the appellate authority went wrong by reversing the findings on bona fide need held by the Rent Control Court. According to the learned counsel, the fact that in the year 2008, the landlords have filed RCP No.21/2008 and sought for an order of eviction for the very same need and the Rent Control Court allowed the petition and granted an order of eviction as prayed for; but the landlords have not occupied the petition schedule shop room and again let out the petition schedule shop room to the very same tenant himself for enhanced rent. The appellate authority has not evaluated the previous conduct of the landlords, which would negate the bona fide of the need, in its correct perspective. So also it is contended that it has come out in evidence by Ext B1 copy of the assessment register and the admission from the part of PW1 that the landlords have other vacant rooms in their possession; but the appellate authority has misread the evidence of PW1 and reversed the findings under the first proviso to Sec.11 (3) of the Act. Thirdly, it 4 RCR No.198 of 2015 is contended that the second petitioner was working abroad and originally the rent control petition was filed for the bona fide requirement for all the petitioners but subsequently in evidence the need was confined to the need of the second petitioner who was working abroad. But the appellate authority has failed to appreciate the lack of bona fides evidenced by the employment of the second petitioner abroad. _Per contra_ the learned counsel for the landlords advanced arguments to justify the findings of the appellate authority whereby an order of eviction has been passed under Sec.11 (3) of the Act. 6. In view of the arguments at the bar the question to be considered is whether there is any illegality or impropriety in the findings, whereby the appellate authority reversed the findings of the Rent Control Court. Going by the impugned judgment passed by the appellate authority, it is seen that the Rent Control Court negatived the bona fides of the needs projected in the petition on the finding that the second petitioner is working abroad and there is no possibility to come and start business in the petition schedule shop room. But the appellate 5 RCR No.198 of 2015 authority reversed the said findings merely on the reason that the second petitioner is working abroad temporarily for the time being, it cannot be held that he was permanently employed abroad and there is nothing wrong for a person working abroad to maintain and wish to have a business or any other engagement of his own in his motherland to secure his future. We are in full agreement with the above view and we add that there is no security or guarantee for any job or trade abroad, especially in Gulf countries. 7. Admittedly, in evidence the need projected was confined to the need of the third petitioner alone and she was examined as PW1. It is true that the rent control petition was filed, for the bona fide needs of all the petitioners and thereafter it was confined to the need of the third petitioner alone. We do not find any reason to suspect the bona fides of the petitioners on that reason, as no prejudice was caused to the tenant by confining to the need to the third petitioner alone. Moreover, the third petitioner has testified herself as to the bona fides of the need and the tenant has got an opportunity to cross- 6 RCR No.198 of 2015 examine her. But nothing has been brought out to discredit the evidence of PW1. Therefore we also endorse the view of the appellate authority that merely on the reason that the second petitioner was working abroad, the bona fides of the need projected in the petition cannot be negatived or doubted. 8. Further, the learned counsel for the tenant contended that the appellate authority has failed to consider the evidence on record available under the first proviso to Sec.11 (3) of the Act in its correct perspective. According to the learned counsel for the tenant, it has come out in evidence that the landlords have other vacant buildings of their own in the same locality, but the appellate authority went wrong by misreading the evidence of PW1. As regards the first proviso to Sec.11 (3) of the Act the initial burden to prove the availability of alternative vacant room in the possession of landlords is on tenant. But in the instant case, in the counter statement, there is no specific pleadings pointing out the identity of the other alternative vacant rooms allegedly in the possession of the landlords and it is vaguely stated 7 RCR No.198 of 2015 that the landlords have other vacant buildings in their possession. In order to prove the availability of vacant rooms in the possession of the landlords Ext B1 was pressed into service by the tenants. Ext B1 is the copy of the assessment register issued by the Municipality. But it would show that the vacant rooms pointed out by the tenant belongs to five persons as owners. It is pertinent to note that the present rent control petition was filed by three petitioners only. Thus it stands proved that the vacant rooms alleged by the tenant belongs to two other persons who are not petitioners in the present rent control petition also. 9. In the above context statutory requirement under the first proviso to Sec.11 (3) of the Act assumes significance and relevance. The section specifically mandates that 'the landlord has another building, of his own, in his possession'. This Court has interpreted the scope and extent of the said expression in **2004 (2) KLT** **446 (Asher vs. Hassankutty Hajee)** and held as follows: “The expressions “his own” “in his possession” used in the 8 RCR No.198 of 2015 first proviso to S.11 (3) would show one's exclusive ownership and possession. Words “his own” “in his possession” excludes all others from the ownership or possession of the property. In other words, the test is that a landlord who has building of “his own” “in his possession” has the right of possession, right to enjoy and right to dispossess, i.e., _jus sibi habendi and jus alteri non habendi or jus prohibendi._ If he is a co-owner along with others he may have only restricted power of dispossession. Since each co-owner is interested in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with the others. Exclusive ownership and possession are _sine qua_ non for invoking the first proviso to S.11 (3)”. 10. The aforesaid preposition is seen reiterated in **2011 (2) KLT 921 (Abdul Nazar vs. Mammad Koya).** When applying the said prepositions in the instant case it has come out in evidence that the petitioners in the rent control petition alone are not owners in possession of the vacant rooms shown in Ext. B1. Therefore no reliance can be placed on Ext B1 to satisfy statutory requirements under first proviso to Sec.11 (3) of the Act. 9 RCR No.198 of 2015 11. That apart, going by the evidence adduced by the third petitioner as PW1, we find that, even otherwise the third petitioner has given satisfactory reason for not occupying the vacant rooms in the first floor of the building reported by the Commissioner in Ext C1 report. Admittedly, the vacant rooms are situated in the first floor of the building. So also according to PW1 the space available for car parking in front of that room is smaller than the space available in front of the petition schedule building. In **2002 (6) SCC 16 (Dhannalal vs Kalawatibai & Ors)** the Supreme Court held that shop room on the first floor cannot be suitable as one on the ground floor for sales of the consumable items. Therefore we find that PW1 has given sufficient reasons for not occupying the vacant rooms found available by the Commissioner in Ext C1 report. 12. The petitioners have filed IA No.2181/2017 with copy of an assessment register issued by the Municipality. We are of the view that this Court is not inclined to accept the said document in evidence under revisional jurisdiction as the jurisdiction under Sec.20 of the Act is 10 RCR No.198 of 2015 confined to examination of the illegality, impropriety and irregularity of the findings of the courts below only. So also, going by the affidavit, it could be seen that the petitioner has no case that the said document was not within the knowledge of the petitioner or in spite of due diligency he could not have produced the same before the appellate court at the time of trial. However, we find that this document also will not help the petitioner to substantiate arguments raised before us in view of our findings on Ext B1. Hence this I.A will stand dismissed. 13. As regards the previous conduct of letting the petition schedule shop room to the tenant/respondent himself, after obtaining an order of eviction under Sec.11 (3) of the Act, we find that, that conduct cannot be taken as a ground to negate the present need, because it has come out in evidence that the need projected in that RCP was for starting a textile shop and that business became a profitless one, when several other textile shops have come in existence, in that locality, in the meantime. We are of the opinion that when that business became a profitless business, the petitioners again let out the 11 RCR No.198 of 2015 schedule shop room to the existing tenant himself, with a meagre enhancement in rent and that conduct shows that the landlords have no illwill or malice towards the existing tenants. Had there been any malafides or malice, they could have let out the schedule building to a third party for a higher rent, after bargain. In short, they were magnanimous to let out the shop room again to the existing tenant himself. Therefore previous conduct of the petitioners cannot be taken as a ground to suspect bona fides. 14. No other point was raised before us for examination of legality and propriety of the findings of the appellate authority. Hence, we do not find any illegality or impropriety, so as to invoke jurisdiction under Sec.20 of the Act. Consequently, we dismiss the revision petition. We direct the parties to bear their respective costs. The tenant is granted time till 30.04.2018 to vacate the premises subject to the following conditions. The tenant shall file an affidavit undertaking to vacate the premises on or before 30.4.2018. It shall also be undertaken in the same affidavit that no further time will be sought for 12 RCR No.198 of 2015 under any circumstance. The affidavit shall be filed before the executing court within a period of three weeks from today. The entire arrears of rent shall be paid within a period of forty five days from today. The rent, till vacating the premises shall be paid on or before the due date. **K.HARILAL Judge** **A.M.BABU Judge** _sks_