T.K. Abdul Rasheed @ Bava v. Dr. Abdu Rahiman 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 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941** **RCRev..No. 88 of 2019** **AGAINST THE ORDER/JUDGMENT IN RCA 27/2016 OF ADDITIONAL DISTRICT COURT, TIRUR DATED 04-06-2018** **AGAINST THE ORDER/JUDGMENT IN RCP 3/2014 OF MUNSIFF COURT, PARAPPANANGADI DATED 21-03-2016** ## **REVISION PETITIONER/S:** **T.K.ABDUL RASHEED @ BAVA, AGED 49 YEARS S/O.ABDUL KHADER HAJI, KALLITHODI HOUSE, KANNATTIPADI, VENGARA.P.O., VENGARA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676304.** **BY ADVS. SRI.HARISH R. MENON SRI.A.G.PRASANTH SRI.K.T.SHYAMKUMAR** ## **RESPONDENT/S:** **1 DR. ABDU RAHIMAN, AGED 41 YEARS S/O.MOIDEENKUTTY HAJI, NALLATT THODI HOUSE, KACHERIPADI, VALIYORA.P.O., VENGARA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676308.** RCRev..No. 88 of 2019 ..2.. - **2 MUHAMMED AYUB,** - **S/O.MOIDEENKUTTY HAJI, NALLATT THODI HOUSE, KACHERIPADI, VALIYORA.P.O., VENGARA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676308.** - **3 MUHAMMED SUHAIB,** - **S/O.MOIDEENKUTTY HAJI, NALLATT THODI HOUSE, KACHERIPADI, VALIYORA.P.O., VENGARA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676308.** **4 M/S.KOLAKKATTIL HADWARES, VENGARA TOWN, VENGARA.P.O., PIN-676304, REP. BY ITS MANAGING PARTNER, T.K.ABDUL RASHEED, S/O.ABDUL KHADER HAJI, KALLITHODI HOUSE, KANNATTIPADI, VENGARA.P.O., VENGARA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676304.** - **5 THACHARUPADIKKAL KOLAKKATTIL SHAJUNNASSER, S/O.MOOSAKUTTY, VENGARA.P.O., VENGARA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676304.** - **6 NALLATT THODI HAFSABI, D/O.HAMZA HAJI, VENGARA.P.O., VENGARA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676304.** **BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD SRI.P.S.APPU** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No. 88 of 2019 **==> picture [31 x 7] intentionally omitted <==** ## **ORDER** ## K.Harilal, J. This revision petition has been filed by the tenant/appellant in RCA No.27/2016 of the Rent Control Appellate Authority, Tirur, challenging the legality and propriety of the concurrent findings whereby the Rent Control Court granted an order of eviction on 21.03.2016 and the appellate authority confirmed the same in the said RCA. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 3. The parties are referred to as in the RCP. According to the petitioner, he is a doctor by profession and working abroad as paediatrician. He needs the petition schedule room to start a clinic to practice his profession after returning from gulf country. All the three rooms in the building are needed to start the clinic and two other RCPs are also filed seeking the RCRev..No. 88 of 2019 **==> picture [31 x 7] intentionally omitted <==** very same relief. He has no other building of his own in his possession, other than the said two other rooms referred above, for starting the said clinic. On the other hand, several other buildings are available in the locality to shift the respondent's business from the tenanted premises. With the aforesaid arguments, the petitioner prayed for an order of eviction against the respondent/tenant. 4. The respondent resisted the claim for eviction contending that the need alleged in the petition is not _bona fide_ and it is a ruse for eviction only. According to the respondent, he is mainly depending on the income derived from the business derived from the tenanted buildings and no other buildings are available in the locality to shift his business from the tenanted premises. Thus, he is entitled to get protection under the second proviso to Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act 2 of 1965 (for short, “the Act”). 5. On the rival pleadings, both parties adduced evidence RCRev..No. 88 of 2019 **==> picture [31 x 7] intentionally omitted <==** and after appreciating and re-appreciating the evidence on record, the courts below concurrently found that the need projected by the petitioner is _bona fide,_ the claim for eviction is not barred by the first proviso to Section 11(3) of the Act and the respondent is not entitled to get a protection under the second proviso to Section 11(3) of the Act. 6. The short question that arises for consideration in this revision is whether there is any illegality or impropriety in the findings, whereby the courts below concurrently granted an order of eviction. At the outset, this Court must remember the limited scope and extent of consideration in the exercise of revisional jurisdiction, which is confined to legality, propriety and regularity of the findings of the courts below only. The revisional court cannot re-appreciate the entire evidence on record, so as to take a different view, unless the findings of the court below are perverse or vitiated by non-consideration of any material evidence. RCRev..No. 88 of 2019 ..6.. 7. Bearing the aforesaid proposition in mind, we have considered the contentions raised in this revision petition. In order to prove the _bona fides_ of the need, the petitioner was examined as PW1 and the courts below concurrently observed that nothing has been brought out to discredit the evidence of PW1 as to _bona fides_ of his need. In the absence of any material to the contrary, we are not inclined to take a different view. As regards the first proviso to Section 11(3) of the Act, the burden of proof is on the tenant. But, no evidence has been adduced to prove the availability of any other vacant and suitable room in the possession of the petitioner. Therefore, the courts below are justified in finding that the claim for eviction is not hit by the first proviso. 8. Coming to the second proviso, it is needless to say that the burden of proof under the second proviso is on the tenant and both limbs of the proviso are conjunctive. Though the respondent was examined in evidence, nothing has been brought out to RCRev..No. 88 of 2019 ..7.. substantiate the income, which is being derived from the tenanted premises. In **Shahul Hameed A.** v. **P.E.Abdu Razak** [2016 (5) KHC 820], this Court held that the tenant, who is hiding his income from the court, is not entitled to get the protection under the second proviso to Section 11(3) of the Act. No evidence has been adduced to prove the non availability of any alternative building in the locality. Thus, it could be seen that the respondent has miserably failed to discharge the burden of proof under the second proviso to Section 11(3) of the Act. We do not find any kind of illegality or impropriety in the findings, whereby the courts below concurrently granted the order of eviction under Section 11(3) of the Act. 9. Moreover, going by the impugned judgment passed by the appellate authority, we find that the respondent, in fact, conceded before the appellate authority that he is ready to vacate the tenanted premises within four months and the courts below granted four months' RCRev..No. 88 of 2019 **==> picture [31 x 7] intentionally omitted <==** time, but, he did not vacate the premises within the said time and preferred this revision petition so as to get more time only. Hence, there are no _bona fides_ in the contentions raised by the respondent as well. In the above analysis, we find that there is no reason to interfere with the concurrent findings of the courts below. Hence, this revision petition will stand dismissed. 10. The learned counsel for the revision petitioner/tenant sought for six months' time to vacate the premises. Having regard to the facts and circumstances of the case, the revision petitioner/tenant is given three months' time to vacate the premises on the following conditions; i) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within eight months from today. RCRev..No. 88 of 2019 **==> picture [31 x 7] intentionally omitted <==** ii) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. iii) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order. This RCR will stand dismissed accordingly. Sd/- **K. HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** bka/03.04.2019