T.P. Habeeb Rahman v. O.P. Sulaiman Haji and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 20TH DAY OF JULY 2018 / 29TH ASHADHA, 1940 R.C. Rev..No. 397 of 2016 AGAINST THE JUDGMENT IN RCA 10/2014 of RENT CONTROL APPELLATE AUTHORITY, KALPETTA, WAYANAD DATED 12-04-2016 AGAINST THE ORDER IN RCP 2/2012 of RENT CONTROL COURT, SULTHAN BATHERI DATED 28-01-2014 ## REVISION PETITIONER(S)/APPELLANT/RESPONDENT: T.P.HABEEB RAHMAN S/O.MUHAMMED KOYA, ZAM ZAM HOUSE, THRIKKAL PARAMBIL, SULTHAN BATHERY, WAYANAD DISTRICT. BY ADV.SRI.C.P.MOHAMMED NIAS ## RESPONDENT(S)/RESPONDENTS/PETITIONERS: 1. O.P.SULAIMAN HAJI S/O.KUNHAMMED HAJI, RESIDING AT 'KADEEJA MANZIL', CHEMMARATHUR AMSOM, THODANNUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 541. 673 541. 2. OTTAPILAKOOL MOOSA, S/O.KUNHAMMED HAJI, RESIDING AT OTTAPILAKOOL, CHEMMARATHUR AMSOM, THODANNUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 541. 673 541 3. C.USMAN S/O.AMMAD VYDIAR, RESIDING AT THOUFEEQUE MANZIL CHEMMARATHUR AMSOM, THODANNUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 541. 673 541 4. KASIM, S/O.KUNHABDULLA MASTER, RESIDING AT 'KUTTIPURATH KANDI', VILLIAPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 541. R1-4 BY ADV. SRI.RAHUL SASI R1-R4 BY ADV. SMT.NEETHU PREM THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K. HARILAL & ANNIE JOHN, JJ.** **------------------------------------------R.C.R No. 397 of 2016** **-----------------------------------------Dated this the 20[th] day of July, 2018.** ## **ORDER** ## K. Harilal,J. The revision petitioner is the tenant who is facing an order of eviction concurrently passed by the Rent Control Appellate Authority, Kalpetta as well as the Rent Control Court, Sulthyan Bathery in RCA No. 10 of 2014 and RCP No. 2 of 2012 respectively. The aforesaid Rent Control Petition was filed by the respondents herein under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short) seeking an order of eviction. 2. According to the respondents herein, the revision petitioner is the tenant, who is in occupation of the petition schedule building as per the lease agreement dated 11.07.2000 and he has paid rent for 11 months from the date of lease and thereafter, he refused to pay rent. Thus, rent was in arrear from 11.06.2001. Though, they have issued Ext.A4 notice demanding arrears of rent, the revision petitioner herein failed to pay arrears of rent as stipulated in the said notice. Therefore, they are RCR No. 397/2016 -2- entitled to get an order of eviction under Sections 11(2)(b) of the Act. The second respondent is working abroad. Now he wants to come back to India, settle down in the native place and to start a business of Arabian Foods in the petition schedule shop room. Thus, he _bona fide_ requires the petition schedule shop room to eke out income for his livelihood, after returning from the gulf country. According to them, they have no other vacant and suitable buildings of their own in their possession to start the said business of Arabian foods. Several other vacant buildings are available in the locality to shift the business of the revision petitioner from the tenanted premises. On the above grounds, the respondents prayed for an order of eviction under Sections 11(2)(b) and 11(3) of the Act. 3. The revision petitioner resisted the claim for eviction under Sections 11(2)(b) and 11(3) contending that he had paid rent upto the date of the aforesaid notice issued under Section 11(2)(b) of the Act and no amount was due from him as arrears of rent to the respondents and the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. According to the revision petitioner, the second respondent is well settled in Gulf country and RCR No. 397/2016 -3- he does not want to start a new business for his livelihood. The respondents have vacant rooms of their own in their possession to start the proposed business and they have let out the rooms to third parties after the filing of the Rent Control Petition. The petition schedule shop room is not at all suitable for conducting an Arabian food business. He is depending on the income from the business carried on in the petition schedule shop room to earn his livelihood. No other suitable buildings are available in the locality to carry on his business. 4. After evaluating the evidence on record, which consists of the oral testimony of PW1 and RW1 and the documentary evidence of Exts. A1 to A8 and B1 to B4, the Rent Control Court found that the need projected in the petition is a _bona fide_ one and the revision petitioner is not entitled to get protection under second proviso to Section 11(3) of the Act and the rent was in arrear as claimed by the revision petitioner. Though he had preferred an appeal, the appellate authority also concur with the findings of the Rent Control Court. Thus, the concurrent findings whereby the courts below passed an order of eviction under Sections 11(2)(b) and 11(3) of the Act are assailed in this appeal. RCR No. 397/2016 -4- 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 6. The sum and substance of the arguments advanced by the learned counsel for the revision petitioner is that the courts below have failed to appreciate the evidence on record available under Sections 11(2)(b) and 11(3) of the Act in its correct perspective. It is contended by the learned counsel for the revision petitioner that even though Ext.B2 receipt would show that the revision petitioner has paid rent upto November, 2011, the courts below have not appreciated the same in its correct perspective. According to the revision petitioner, the rent was paid to the Power of Attorney Holder of the respondent from the very beginning of the tenancy. Therefore, no amount was due from the revision petitioner as claimed by the respondents. It is also contended that the courts below have not appreciated the evidence on record available under the first proviso to Section 11(3) of the Act in its correct perspective. _Per contra_ , the learned counsel for the respondents advanced his arguments to justify the concurrent findings of the courts below. 7. The short question that arises for consideration in this RCR No. 397/2016 -5- revision petition is whether there is any perversity in the appreciation of evidence whereby the Rent Control Court as well as the Appellate Court found that the rent was in arrear as claimed by the respondents and the claim for eviction under Section 11(3) is not hit by the first proviso to Section 11(3) of the Act in its correct perspective. 8. As regards the findings under Section 11(2)(b) of the Act, the case of the petitioner is that the rent was due from 11.06.2001 onwards. But, the case of the revision petitioner is that from the very beginning of the tenancy, the rent was being paid to the Power of Attorney Holder of the respondents and they have paid rent upto November, 2011. Going by the impugned judgment, it could be seen that the claim of the revision petitioner that he had paid rent to the Power of Attorney Holder was rejected on the sole ground that the Power Attorney Holder was not examined in evidence. Going by the deposition of PW1, the second respondent herein, he admitted that the Power of Attorney Holder to whom the rent was allegedly paid by the revision petitioner was looking after the affairs of the petition schedule shop room and other buildings. It is admitted that the second petitioner was working abroad and RCR No. 397/2016 -6- the management of the building was vested with the Power of Attorney by name 'Kunjabdulla'. The revision petitioner has produced Ext.B2 rent receipt which would show that he had paid rent for one month on 06.12.2011. Merely for the reason that he had paid rent for one month by money order after the receipt of Ext.A2 notice, it cannot be presumed that there was no arrear before the said payment of rent by money order. However, we are of the opinion that an opportunity can be given to the revision petitioner to prove the payment of rent to the Power of Attorney Holder. It is pertinent to note that the rent was in arrear from 11.06.2001 onwards. In the above view, the revision petitioner is given an opportunity to adduce further evidence by examining the Power of Attorney Holder of PW2. 9. Coming to the order of eviction under Section 11(3) of the Act, the argument advanced by the learned counsel for the revision petitioner is that it has come out in evidence by Ext.B1 that the room Nos. 728 to 735 were remaining vacant in the possession of the respondents. Ext.B1 is the copy of the assessment register which was being kept in the Grama Panchayat Office. We are of the opinion that the entries in the Assessment Register which is RCR No. 397/2016 -7- being maintained in the Local Self Government Authorities cannot be taken as a conclusive proof to establish the current occupancy position of the buildings. This Court has already held in _**Shahul Hameed v. P E Abdul Razak**_ [2016 (5) KHC 820] that no reliance can be placed on the copy of the assessment register alone as the local authorities used to make entries in the Assessment Register only if the landlords come and report the occupancy position. There is no mandatory provision to register the vacancy position in the said register. Therefore, merely for the reason that in Ext.B1, room Nos. 728 to 738 were found remaining vacant, it cannot be held that those rooms are lying vacant in the possession of the respondents. No other evidence has been adduced to prove the case of the revision petitioner that the respondents have other vacant rooms of their own in their possession to start the business of Arabian food. That apart, when PW1 was examined in evidence, he categorically deposed that those rooms are not vacant and they are occupied by different tenants. It appears that the revision petitioner accepted the said contention and no question was put thereafter suggesting the availability of those rooms as vacant rooms in the possession of the respondents. It is pertinent to note RCR No. 397/2016 -8- that the respondents have not chosen to seek appointment of an Advocate Commission to ascertain the availability of those rooms as vacant rooms. Needless to say that the burden of proof under the first proviso is on the tenant. In the above view, we find that the revision petitioner has failed to discharge the burden of proof under the first proviso to Section 11(3) of the Act. No other point was raised before us in this revision petition. 10. Therefore, the appellate authority is justified in concurring with the findings of the Rent Control Court and we do not find any illegality or impropriety in any of the findings whereby the courts below passed an order of eviction under Section 11(3) of the Act. The order of eviction under Section 11(3) of the Act will stand confirmed. The Rent Control Petition is remitted back to the trial court for considering the claim for eviction under Section 11(2) (b) of the Act. The parties are at liberty to adduce further evidence under Section 11(2)(b) of the Act only. The Rent Control Court shall dispose of the Rent Control Petition afresh with respect to Section 11(2)(b) of the Act alone, after affording an opportunity of being heard to both the parties, at the earliest, at any rate within a period of three months from the date of receipt of a copy of this RCR No. 397/2016 -9- order. The Rent Control Court shall serve notice indicating the date of appearance to the counsel who was appearing for the parties. This RCR is disposed of as above. **K. HARILAL, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_ RCR No. 397/2016 -10-