Ussangantakath Azees v. Marakkarkandi Puthiya Pandikasalayil Imbichi Mamu and Abdurahiman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** **RCRev..No.305 OF 2019** **AGAINST THE JUDGMENT IN RCA 68/2017 DATED 17-01-2019 OF THE RENT CONTROL APPELLATE AUTHORITY/ADDL.DISTRICT JUDGE, VATAKARA** **AGAINST THE ORDER IN RCP 23/2014 DATED 23-02-2017 OF RENT CONTROL/MUNSIFF COURT, QUILANDY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **USSANGANTAKATH AZEES, AGED 48 YEARS S/O. MAMMED, PANTHALAYANI AMSOM, KOVILKANDI DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN-673305.** **BY ADVS.** **SRI.C.ANILKUMAR (KALLESSERIL) SRI.A.S.BENOY SRI.JIMMY GEORGE SRI.C.Y.VINOD KUMAR** ## **RESPONDENTS/RESPONDENTS/PETITIONER:** - **1 MARAKKARKANDI PUTHIYA PANDIKASALAYIL IMBICHI MAMU AGED 71 YEARS, S/O. ALIKUTTY, RESIDING AT AMATH KAKKANTAVIDA, PANTHALAYANI AMSOM, KOVILKANDI DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN-673 305.** - **2 MARAKKARKANDI PUTHIYA PANDIKASALAYIL ABDURAHIMAN, S/O. ALIKUTTY, RESIDING AT AMATH KAKKANTAVIDA, PANTHALAYANI AMSOM, KOVILKANDI DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT – 673 305.** **R1-2 BY ADV. SRI.SANTHARAM.P R1-2 BY ADV. SMT.REKHA ARAVIND R1-2 BY ADV. SRI.PAUL P. ABRAHAM** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev..No.305 OF 2019 2 ## **ORDER** ## **Harilal, J** The revision petitioner herein is the tenant, who is confronting with an order of eviction, passed concurrently by the courts below, under Section 11(3) of the Kerala Building and Lease Control Act, 1965 [for short, 'the Act'] . The parties are referred to as landlords and tenant respectively. 2. The landlords preferred RCP No.23/2014 before the Rent Control Court, Quilandy, seeking order of eviction, under Sections 11(2)(b) and 11(3) of the Act, on the ground that they _bona fide_ require the petition schedule shop room, for conducting a bakery business, to earn income, as they have no other source of income and they have no other RCRev..No.305 OF 2019 3 buildings of their own in their possession to start the proposed business, whereas several other vacant buildings are available in the locality, to accommodate the business of the tenant. It is further averred that the tenant is not depending mainly on the income derived from the business in the tenanted premises. 3. The tenant resisted the claim for eviction contending that the need projected in the petition is not _bona fide_ and it is a ruse for eviction only. The landlords are affluent, having several other sources of income. They are in possession of several other vacant buildings, but no other buildings are available in the locality, to shift the business of the tenant from the tenanted premises. The landlords have absolutely no RCRev..No.305 OF 2019 4 necessity to start any business in the plaint schedule shop room, as they have no experience in conducting a bakery business. It is also contended that he is mainly depending upon the income derived from the business in the tenanted premises. With the aforesaid averments, the tenant/revision petitioner prayed for dismissal of the rent control petition. 4. On the aforesaid contentions and after considering the evidence on record, the court below allowed the claim for eviction, under Section 11(3) of the Act, on a finding that the need projected by the landlords/respondents is _bona fide_ and the claim for eviction is not negated by the first proviso to Section 11(3) of the Act and the tenant/revision petitioner is not entitled to get RCRev..No.305 OF 2019 5 protection, under the 2[nd] proviso to Section 11(3) of the Act. Therefore, the landlords-respondents are entitled to get an order of eviction, under Section 11(3) of the Act. In appeal, the Appellate Court also, after re-appreciating the evidence on record, concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the legality and propriety of the findings, whereby the rent control court has passed the order of eviction, under Section 11(3) of the Act and confirmed by the appellate court, are under challenge in this revision petition. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 6. The sole point raised by the learned counsel for RCRev..No.305 OF 2019 6 the revision petitioner is that the courts below failed to appreciate the evidence on record in its correct perspective. No point raising any kind of illegality or impropriety, has been raised before us. Being a revision filed under Section 20(b) of the Act, this Court is not inclined to re-appreciate the entire evidence on record, unless the factual findings are perverse or unsustainable under law. The scope and extent of consideration in this revision are confined to legality, propriety and regularity of the findings, whereby the courts below have granted an order of eviction, under Section 11(3) of the Act. 7. Bearing the aforesaid legal proposition in our mind, at first, we have examined the concurrent findings of the courts below as regards the _bona_ RCRev..No.305 OF 2019 7 _fides_ of the need. It is the case of the landlords/respondents that they _bona fide_ need the plaint schedule shop room, to conduct a bakery business. It has come out in evidence that now the 2[nd] respondent/landlord is conducting a manufacturing unit of the bakery items in the house situated very near to the plaint schedule shop room. In order to prove the _bona fides_ of the need, the 2[nd] respondent/landlord was examined as PW1 and he has testified as to the _bona fides_ of the need. Nothing could be brought out to discredit his evidence. In the absence of any material to the contrary, the courts below have relied on the evidence of PW1 and we do not find any kind of perversity in the findings, on which the court below placed reliance on the evidence of RCRev..No.305 OF 2019 8 PW1. 8. Coming to the first proviso, though it is contended that the landlords/respondents have several other buildings in their possession, no evidence has been adduced to prove that on the date of filing of the rent control petition, the landlords/respondents have other buildings of their own to start the proposed bakery business. Thus, the tenant/revision petitioner has failed to discharge the initial burden of proof. Thus the court below is justified in its finding that the need projected by the landlords/respondents is _bona fide_ and the claim for eviction is not negated by the first proviso to Section 11(3) of the Act. As nd regards the 2 proviso it is trite law that both limbs under the 2nd proviso, to Section 11(3) of the RCRev..No.305 OF 2019 9 Act are conjunctive and the burden of proof is on the tenant. Going by the impugned judgment, the tenant/revision petitioner has miserably failed to prove the income, which is being derived from the business conducted in the tenanted premises. In **Shahul Hameed A. v. P.E.Abdu Razak [2016 (5) KHC 820]** , this Court held that no tenant/revision petitioner can claim protection after hiding his income. Evidence must be produced to prove his approximate income from the trade or business and his approximate living expenses. In the absence of any evidence to prove the approximate income from the tenanted premises, it can be held that the tenant/revision petitioner has miserably failed to discharge the burden of proof, under the first limb of the second proviso. RCRev..No.305 OF 2019 10 Similarly, though Ext.C1 report shows that several other vacant buildings are available in the locality, no evidence has been adduced the by tenant/revision petitioner to prove that those buildings are not available on lease to the tenant. That apart, Exts.A6 to A12 related to the period from 1995 to 1996 and 1999 to 2000, shows that several shop rooms are vacant in a shopping complex situated in the Municipality and are still lying vacant. As per Ext.A5, for the period from 2016-2017, no D&O licence was issued to any of those rooms. This document is not challenged at all when PW1 was examined in evidence. Thus the landlords/respondents have succeeded in proving that several other vacant buildings are available in the locality, to shift the business of the RCRev..No.305 OF 2019 11 tenant/revision petitioner from the tenanted premises. 9. In the above analysis, we find that there is no illegality, impropriety or perversity in any of the findings, whereby the courts below have concurrently passed an order of eviction, under the Act. Hence, this revision petition fails and it is dismissed accordingly. 10. At this juncture, the learned counsel for the tenant/revision petitioner sought some more time to vacate the tenanted premises. Having regard to the nature of business, which is being conducted in the tenanted premises, the tenant/revision petitioner is hereby granted six months' time from today to vacate the petition schedule building, on the following conditions: RCRev..No.305 OF 2019 12 _(1) The tenant/revision petitioner 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 six months from today._ _(2) The tenant/revision petitioner 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._ _(3) 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_ RCRev..No.305 OF 2019 13 _landlords/respondents will be at liberty to proceed with the execution of the eviction_ _order._ All the pending interlocutory applications will stand closed. **Sd/- K.HARILAL, JUDGE** **sd/- C.S.DIAS, JUDGE** AMV/07/12/2019