T.P. Moitheen (Legal Heir) and others v. Vannathivalappil Mohammed Haji

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** # **RCRev.No. 36 of 2013** **AGAINST THE ORDER IN RCA 109/2011 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT & SESSIONS COURT),KOZHIKODE DATED 11-10-2012** **AGAINST THE ORDER IN RCP 15/2010 of MUNSIFF COURT, 9RENT CONTROLLER) PAYYOLI DATED 29-07-2011** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** - **1 T.P.MOITHEEN (LEGAL HEIR) AGED 53 YEARS** **S/O MOHAMMED, SHABANA MANZIL, MELADI AMSOM, KIZHOOR DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT _ (DIED, LRS IMPLEASED)** - **2 NOORJAHAN W/O T.P MOITHEEN, RESIDING AT SHABANA MANZIL, MELADI AMSOM, KIZHOOR DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT.** - **3 SHAJAHAN T P S/O T.P MOITHEEN, RESIDING AT SHABANA MANZIL, MELADI AMSOM, KIZHOOR DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT.** - **4 SHAMJITH T.P S/O T.P MOITHEEN, RESIDING AT SHABANA MANZIL, MELADI AMSOM, KIZHOOR DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT.** R.C.R.No.36/2013 2 **5 SHABANA** **S/O T.P MOITHEEN, RESIDING AT SHABANA MANZIL, MELADI AMSOM, KIZHOOR DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT.** **(ADDITIONAL PETITIONERS ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST PETITIONERS VIDE ORDER DATED 24/10/2018 IN IA.NO.1407/2018 IN RP.500/2018)** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT/APPELLANT/PETITIONER :** **VANNATHIVALAPPIL MOHAMMED HAJI AGED 59 YEARS** **S/O ABDURAHMAN KUTTY, RESIDING AT VADAKKE POVATHUKANDI, THRIKOTTOOR AMSOM, DESOM, THIKKODY P.O, KOYILANDI REPRESENTED BY HIS PWOER OF ATTORNEY HOLDER, VANNATHIVALAPPIL ZUBAIR, S/O K. ALI, ERANJIVALAPPIL HOUSE, PAYYOLI, MELADI P.O, KOYILANDI TALUK, KOZHIKODE** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R.No.36/2013 3 ## **O R D E R** ## **A.HARIPRASAD, J.** This revision is against the order granting eviction of the petitioner under Section 11(3) of the Kerala Buildings(Lease and Rent Control) Act, 1965 (in short, the Act). 2. Admittedly, the revision petitioner is the tenant of a building belonging to the respondent. The respondent approached the Rent Control Court seeking eviction of the petitioner urging grounds under Sections 11 (3) and 11(4) (ii) of the Act. The revision petitioner is conducting a textile business in the shop rooms described in the schedule. There is no dispute regarding the tenancy arrangement and rate of rent. 3. The pleadings relevant for the disposal of this case are as follows: There was a stipulation at the time of entrustment that the tenant will have no right or authority to change the nature and lie of the building. In contravention of that stipulation, the tenant/revision petitioner has constructed a wall dividing a big hall entrusted to him on rental arrangement. According to the respondent, the partition made by the tenant in the tenanted premises has reduced value and utility of the building materially and permanently and thereby he is liable to be evicted under Section 11 (4) (ii) of the Act. 4. That apart, the land lord has no trade or business and has no R.C.R.No.36/2013 4 source of income at the time of filing the petition. He along with his wife have arranged sufficient funds for starting a textile business in the petition schedule room. He has the capacity to start a business and to run it. He has no other room suitable for the textile business. Thus, he claims eviction of the revision petitioner on the ground of bonafide need under Section 11 (3) of the Act. 5. The respondent/tenant opposed the application by contending that he has not altered the building materially or permanently in violation of the terms and conditions of entrustment, causing reduction in value and utility of the building. The claim for eviction under Section 11 (3) of the Act is strongly denied by the revision petitioner contending that the landlord has no bonafides and it is only a ruse to evict him. It is also contended that the landlord at the time of filing the petition was working abroad and he was permanently residing at that time with his wife in a foreign country. He has no intention to start a business and the petition is only a pretext for evicting the tenant. It is also contended by the revision petitioner that other suitable rooms belonging to the landlord is available in the same building and if, he actually intended to start a business, it could have been done in the other rooms available in the same building. With these averments he prayed for dismissal of the petition. 6. The Rent Control Court considered the testimony of PW1 and RW1 and also Exts.A1 and Exts.B1 to B3. Exts.C1 and C2 are the R.C.R.No.36/2013 5 ## reports submitted by the Advocate Commissioner. 7. The Rent Control Court found that the respondent/landlord has suppressed material facts and therefore his claims are not bonafide. For entering a finding to that effect, the lower court mainly relied on the fact that, the landlord did not mention in his petition that he was working abroad at the time of filing the petition. According to the Rent Control Court, the landlord was working abroad at the time of filing the petition is a material aspect which will tell upon his bonafides. It is also found by the Rent Control Court that the landlord suppressed the fact that other rooms are available in the same building and he could have occupied any of them, if he had an intention to start a business. 8. The Rent Control Court further found that, the claim for eviction under Section 11 (4) (ii) of the Act alleging that the tenant has materially and permanently reduced the value and utility of the building is false. According to the Rent Control Court, the partition allegedly put up by the tenant will not affect the strength of the building. Therefore, the petition was dismissed by the Rent Control Court in its entirety. 9. Feeling aggrieved, the respondent/landlord approached the appellate authority under the Act. The learned appellate Judge after reconsidering the evidence, allowed eviction of the revision petitioner under Section 11 (3) of the Act and confirmed dismissal of the ground for eviction urged under Section 11 (4) (ii) of the Act. Correctness of eviction order under Section 11 (3) of the Act passed by the Rent Control R.C.R.No.36/2013 6 ## Appellate Authority is the subject matter in this revision. 10. We heard the learned counsel for the revision petitioners and the respondent. 11. The learned counsel for the revision petitioners submitted that the correct judgment rendered by the Rent Control Court was upset by the Appellate Authority for incorrect reasons. According to him, the finding of the Appellate Authority that suppression of landlord's employment abroad at the time of filing the petition is not a material fact is thoroughly incorrect. He would further contend that despite taking up such a defense in the counter statement, the landlord did not take care to amend the petition or make any explanation in his pleadings. The fact that he was working abroad at the time of filing the petition came out for the first time when he was examined as PW1. Our attention has been drawn to the cross-examination of PW1 wherein he has candidly admitted that he was abroad at the material time with his wife and he was working in a company there. According to his evidence, he would be sent out from job on attainment of 60 years of age. It is seen from the petition that he was 58 years at the time of filing the petition and 59 years of age at the time of tendering evidence. It is the submission of the learned counsel for the petitioner that if the landlord had been honest, he would have stated the true facts in the petition itself that he was working abroad and on coming back to his native place, he would intend to start a business. Instead, he had assertively mentioned in the petition that he R.C.R.No.36/2013 7 has no job or income or trade or business. This is an utter false statement, according to the learned counsel for the revision petitioner. 12. The learned counsel for the respondent opposed these contentions by supporting the view taken by the lower appellate court that all facts need not be regarded as material facts and non-mentioning of his employment abroad at the time of filing petition is not a material fact. The learned counsel for the respondent relied on a decision by a Division Bench of this Court in _**Pengattil Moosa v. Villippavil Moideen Kutty Haji and Another [(2018) (5) KHC 808**_ )] to contend a proposition that such details need not be pleaded in the petition. It is also pointed out that the landlord has fairly stated all the facts needed in the chief examination and at the time of cross-examination also, he has fairly conceded the fact that he was working abroad at the time of filing the petition. We have carefully gone through the facts in _**Pengattil Moosa'** s_ case (supra). That was a case wherein all the relevant pleadings have been made and at the time of evidence it came out that the landlord was having another source of income by operating a quarry till a particular point of time. The learned Judges took the view that, in the facts and circumstances of the case, non-mentioning of operating a quarry till 2013 cannot be taken as fatal to the case of bonafides set up by the landlord in that case. But in this case, the factual situation is completely different. The landlord has not only suppressed the fact that he was working abroad at the time of filing the petition, but also falsely stated that he has R.C.R.No.36/2013 8 no job or business wherefrom he could have derived any income. There is an ocean of difference in the facts in these two cases and therefore the principles in _**Pengattil Moosa'** s_ case (supra) cannot be applied herein. 13. Learned counsel for the revision petitioner contended that there are catena of decisions on the point that bonafides is a state of mind and it can be assessed from totality of the circumstances pleaded and proved before the court. It is a well settled proposition that bonafide need is not synonymous to dire need or necessity or a mere whim or fancy. A landlord seeking eviction of a tenant under Section 11 (3) of the Act is expected to place all material facts so that the court can make an assessment of the situation about the state of mind of the landlord who claims eviction on the ground of bonafide need. The eviction petition was filed at a time when the landlord was working abroad and fetching income from his employment. Although he asserted that he would be sent out of the foreign country on attaining 60 years of age, in his cross-examination he has deposed that he intend to go back and pursue his job. This aspect was highlighted by the trial court to find that his plea of bonafide need is not genuine. It goes without saying that honesty is the hall mark of bonafide need. We are of the view that the landlord herein has suppressed a very material fact which will have a direct impact on the assessment of the bonafides of his need. The view taken by the lower appellate court that suppression of his employment abroad is not a R.C.R.No.36/2013 9 material fact cannot be endorsed for the reason that it goes against the settled principles of law laid down by this Court in a catena of decisions. 14. Learned counsel for the revision petitioner relying on _**Kishan Chand v. Jagdish Pershad and Others [(2000) (3) KHC 1944**_ ] contended that concealment of material facts by landlord seeking eviction on the ground of bonafide need is a sufficient reason for rejecting the petition. 15. Having regard to the facts and circumstances, we are of the opinion that, the view taken by the trial court that the landlord failed to establish bonafide a need is the correct view and hence we affirm it. The view taken by the lower appellate court cannot be sustained. 16. Having found that the landlord has failed to establish the bonafide need, we are of the definite view that, the question involved in provisos do not arise for consideration in this case. Therefore we do not venture to decide the aspects involved in the two provisos provided to Section 11 (3)of the Act. Even though a decision rendered by a Division Bench of this Court reported in _**Kunhamina K. v. V.K.T.Aboobacker Haji [(2016) KHC 639]**_ was cited at the Bar, we do not find any application of the ratio therein to the facts in this case. 17. Learned counsel for the respondent relying on _**Kunhamina's**_ case (supra) contended that non-mentioning of vacant rooms in the building is not fatal to the landlord's case because on adducing evidence by both sides, no party will suffer prejudice on account of the R.C.R.No.36/2013 10 non-pleading of this fact. We do not delve on this question for the reason that the proviso protection does not arise in this case. 18. It has been finally decided by the fact finding authorities that the landlord is not entitled to get eviction under Section 11 (4) (ii) of the Act. Hence that has become final. For the aforementioned reasons, we allow the revision petition by setting aside the order of eviction passed by the appellate authority under Section 11 (3) of the Act and dismiss the application affirming the judgment of the Rent Control Court in this case. Sd/- **A.HARIPRASAD JUDGE** **Sd/T.V.ANILKUMAR JUDGE** al/-