Thekkumbattu Mani and others v. Kovukkal Ramla

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939** **RCRev..No. 22 of 2017** **---------------------** **AGAINST THE JUDGMENT IN RCA 189/2014 OF THE RENT CONTROL APPELLATE AUTHORITYAL DISTRICT COURT-IV, KOZHIKODE DATED 23-11-2016** **AGAINST THE ORDER IN RCP 30/2013 OF THE RENT CONTROLLER/MUNSIFF COURT, NADAPURAM DATED 25-10-2014** **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** **--------------------------------------------** ## **1. THEKKUMBATTU MANI,** **W/O. MOIDU, AGED 62 YEARS, VELLOOR AMSOM, CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** ## **2. THEKKUMBATTU FAUSIYA,** **D/O. MOIDU, AGED 42 YEARS, VELLOOR AMSOM, CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** ## **3. THEKKUMBATTU SUMAYYA,** **D/O. MOIDU, AGED 40 YEARS, VELLOOR AMSOM, CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** ## **4. THEKKUMBATTU MUHAMMED SHAREEF,** **S/O. MOIDU, AGED 38 YEARS, VELLOOR AMSOM, CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** **......2** **-2-** ## **5. THEKKUMBATTU JAFFAR,** **S/O. MOIDU, AGED 35 YEARS, VELLOOR AMSOM, CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** ## **6. THEKKUMBATTU SAUDA,** **D/O. MOIDU, AGED 33 YEARS, VELLOOR AMSOM, CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** ## **7. THEKKUMBATTU AKBAR,** **S/O. MOIDU, AGED 31 YEARS, VELLOOR AMSOM, CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** ## **8. THEKKUMBATTU RAFI,** **S/O. MOIDU, AGED 29 YEARS, VELLOOR AMSOM, CHALAPRAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** ## **BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **---------------------------------** ## **KOVUKKAL RAMLA,** **D/O. MOIDU, AGED 46 YEARS, RESIDING AT KADAVATH, VANIMEL AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101.** ## **BY ADV. SMT.MEENA.A.(CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL & P. SOMARAJAN., JJ.** **--------------------------------------------------------R.C.R. No.22 of 2017-C ---------------------------------------------------------Dated this the 6[th] day of June, 2017** ## **ORDER** ## **Harilal, J.** The revision petitioners are the tenants against whom an order of eviction had been passed concurrently under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The legality and propriety of the concurrent findings under Sec.11(3) of he Act are assailed in this Rent Control Revision. 2. According to the landlady, she and her husband are having no job or avocation, at present. Her husband had been working abroad for about 30 years and now, he has returned to India by ## **R.C.R. No.22 of 2017** -: 2 :- abandoning his job at Gulf. Now, he is seeking an avocation for the livelihood of the family. So, the petitioner/landlady and her husband intended to start a ready made garments business in the petition schedule shop room and thereby, they _bona fide_ need the petition schedule building. Neither the petitioner nor her husband is in possession of any other vacant shop room, suitable for their proposed business. There are so many vacant buildings are available in the locality and the tenant is depending upon the income from the business in the petition schedule shop room. 3. The respondents/tenants resisted the said contention contending that the _bona fide_ need projected in the petition is a ruse for eviction only. According to the tenants, the landlady and her husband are eminently rich and having several landed properties. They are having their own buildings also. They are entitled to get protection ## **R.C.R. No.22 of 2017** -: 3 :- under the second proviso to Sec.11(3) of the Act. 4. The trial court granted an order of eviction under Sec.11(3) of the Act, on a finding that the need projected in the petition is a _bona fide_ one and the tenants are not entitled to get protection under the proviso to Sec.11(3) of the Act. 5. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondent/landlady. 6. In view of the submissions made at the Bar and the grounds raised in the Memorandum of Revision, the prime question to be considered is, whether there is any illegality or impropriety in the findings that the Rent Control Petition is not barred by Sec.15 of the Act. It is the case of the tenants that earlier, the landlady had filed R.C.P. No.25/1990 and R.C.P. No.27/1996 on the ground of _bona fide_ need and sub lease respectively; but the Rent Control Court dismissed the same and the Appellate **R.C.R. No.22 of 2017** -: 4 :- Court confirmed the findings of the Rent Control Court. Therefore, the present Rent Control Petition seeking eviction on the ground of _bona fide_ need is hit by Sec.15 of the Act. 7. We have meticulously considered the concurrent findings of the courts below that the present Rent Control Petition is not barred by Sec.15 of the Act. Admittedly, R.C.P. No.25/1990 was filed seeking eviction for the _bona fide_ need, for the husband of the petitioner, when he was working abroad. Since he was working abroad, he could not adduce evidence before the court below in the proceedings and on that ground, the Rent Control Court dismissed the petition. Again, R.C.P. No.27/1996 was filed on the ground of sub lease. The said Rent Control Petition was also dismissed since the petitioner failed to prove the alleged sub lease. In view of the statutory requirements under Sec.15 of the Act, the question to be considered is, **R.C.R. No.22 of 2017** -: 5 :- whether the issues involved in the present Rent Control Petition and the earlier Rent Control Petitions are same and have been finally decided in the former proceedings under the Act. Admittedly, the parties are same; but at the time when R.C.P.No.25/1990 was fled, the husband of the landlady was working abroad and he could not adduce evidence in that Rent Control Petition and the court below found that since he was employed abroad, the _bona fide_ need projected in the petition was a ruse for eviction only. But, now, he has returned from the Gulf, after cancelling his Visa and he has produced his passport before the court and the same was marked as Ext.A2 and it shows that now he is not working abroad and the Visa stands cancelled, as contended by him. That apart, in the earlier petition, the need was projected for the husband alone. But, in the instant case, the case of the landlady is that both the landlady and her husband need the petition schedule **R.C.R. No.22 of 2017** -: 6 :- building for starting a ready made garments business. Coming to R.C.P.No.27/1996, the said Rent Control Petition was filed alleging sub lease. There, the matter in issue was entirely different from the present Rent Control Petition. 8. In the above analysis, the courts below concurrently found that the present Rent Control Petition is not barred by Sec.15 of the Act, as the issues involved in the former proceedings and the present proceedings are entirely different, as there is a change of circumstance. The above view is supported by the decision of this Court in _**Janaki Amma and others v. Bhaskaran Nambiar [2014**_ _**(4) KHC 602]**_ wherein this Court held that if the claim of the landlord based on the present need is rejected, that does not bar him to file fresh eviction petition under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act, that was available to him, as a future need, at the time of seeking **R.C.R. No.22 of 2017** -: 7 :- eviction previously. The need projected in the earlier Rent Control Petition does not bar the landlord from filing a second petition based on the subsequent events that arose after the earlier Rent Control Petition. In the instant case, the present Rent Control Petition is filed on the basis of the subsequent event that the husband of the landlady returned from Gulf after cancelling his Visa and he is seeking a new avocation for the livelihood of the family and the same is evidenced by Ext.A2. We do not find any kind of illegality or impropriety in the aforesaid finding. 9. Coming to the _bona fide_ need, the husband of the landlady was examined as P.W.1 and he was, in his evidence, projecting the need averred in the petition. The courts below concurrently placed reliance on the oral testimony of P.W.1; whereas no evidence was adduced from the part of he tenants. It was incumbent upon the tenants to challenge the ## **R.C.R. No.22 of 2017** -: 8 :- evidence of the landlady, if they have a case that the _bona fide_ need is a ruse for eviction. Even though the tenants are 8 in number, none of them have chosen to enter the witness box to substantiate their contentions. In the absence of any kind of contra evidence, the courts below are justified in finding that the need projected in the petition is a _bona fide_ one. 10. The next question to be considered is, whether the Rent Control Petition is hit by the first proviso to Sec.11(3) of the Act. The burden is heavy on the tenants to prove that the landlady has another building in her possession in the locality. No evidence has been adduced to substantiate the contention that the landlady has another vacant building in her possession. 11. The learned counsel for the tenants vehemently argued that the landlord was in possession of another vacant room when the tenant ## **R.C.R. No.22 of 2017** -: 9 :- in R.C.P.No.24/2009 surrendered the shop room in that case and the same was again rented out three years back only. To prove the said fact, even though the tenants have produced some documents, under Order 41 Rule 27 of the Code of Civil Procedure, before the Appellate Court, the Appellate Court dismissed the said application, without sufficient reasonings. Going by the judgment passed by the Appellate Court, we find that the said application was dismissed on the ground that there is no pleadings in the Rent Control Petition to that effect and the application would not fall under Order 41 Rule 27 of the CPC. We are of the opinion that the aforesaid reasonings are sound and legally correct, as evidence, without pleading cannot be looked into. So also, we find that the grounds stated in the application would not come under Order 41 Rule 27 of the CPC and even if those documents are admitted, the facts intended to be proved can never ## **R.C.R. No.22 of 2017** -: 10 :- be proved in appeal and the application was filed with a _mala fide_ intention to delay the execution of the order by way of remand. There is no illegality in the order dismissing the said application. 12. The next question is, whether there is any illegality or impropriety in finding that the tenants are not entitled to get the protection under the second proviso to Sec.11(3) of the Act. Here also, the burden of proof is heavy on the tenants. The tenants have not adduced any evidence to show that they are mainly depending upon the income, which is being derived from the business in the petition schedule building or no other alternative buildings are available in the locality to shift their business. 13. Thus, the courts below are justified in finding that the tenants are not entitled to get the protection under the second proviso to Sec.11(3) of the Act. We do not find any kind of illegality or impropriety in any of the findings whereby the courts **R.C.R. No.22 of 2017** -: 11 :- below concurrently granted an order of eviction under Sec.11(3) of the Act. 14. This Rent Control Revision is devoid of merits and is dismissed accordingly. 15. The learned counsel for the tenants prayed for three months' time to shift the business from the petition schedule building. we grant three months' time, as prayed for, on the following conditions: - i. The tenants 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 a period of three months from the date of receipt of a copy of this order. - 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 one month from the date of receipt of a copy of this order and shall continue to ## **R.C.R. No.22 of 2017** -: 12 :- ## 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 repealed and the petitioner/landlady will be at liberty to proceed with the execution of the eviction order. Sd/- **(K. HARILAL, JUDGE)** Sd/- **(P. SOMARAJAN, JUDGE)** ## **Nan/** ## **//true copy//** **P.S. To Judge**