V. P. Ayishabi, W/o Hashim; V. P. Naushad, S/o Hashim; V. P. Nishant, S/o Hashim; V. P. Irshad, S/o Hashim v. Pallivalappil Mariyumma, D/o Yusuff Haji; Pallivalappil Rukhiya, D/o Yusuff Haji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 RCRev..No. 57 of 2010() ----------------------RCA.80/2005 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.155/2003 OF RENT CONTROL COURT ,KANNUR .................... (S): PETITIONERS/APPELLANTS 1 TO 3 AND 3RD RESPONDENT -------------------------------------------------------------------- 1. V.P.AYISHABI,W/O.HASHIM,RESIDING AT V.P.HOUS,NEAR MUHAMMED ABDUL RAHIMAN PARK,AYKARA, KANNUR-17. 2. V.P.NAUSHAD,S/O.HASHIM,RESIDING AT DO. DO. 3. V.P.NISHANT,S/O.HASHIM,RESIDING AT DO. DO. 4. V.P.IRSHAD,S/O.HASHIM,RESIDING AT DO. DO. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM RESPONDENT(S): RESPONDENTS 1& 2/PETITIONERS ------------------------------------------- 1. PALLIVALAPPIL MARIYUMMA,D/O.YUSUFF HAJI, PALLIVALAPPIL HOUSE,NEAR THANGALAPPALLI.PO, MUTTOAL,KANNUR. 2. PALLIVALAPPIL RUKHIYATH, D/O YUSUFF HAJI,DO. DO. DO. ADV. SRI.N.NAGARESH FOR R1-2 SRI.K.BABU FOR R1-2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO. 405 OF 2010 IN RCR. NO. 57 OF 2010 ## DISMISSED 15-06-2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE. (TRUE COPY) PS TO JUDGE. ## **PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.** ----------------------------------------------RCR. No. 57 of 2010 ----------------------------------------------Dated this the 15[th] day of June, 2010 ## **O R D E R** ## **Pius C.Kuriakose, J.** The tenants and the legal heirs of a deceased tenant in this revision under Section 20 of Act 2 of 1965, challenge the orders of eviction concurrently passed against them on the ground of bonafide need for own occupation. The need projected by the landladies who are two in number was that the building in question wherein the revision petitioners are conducting footwear business is needed, so that the petitioners who are already conducting textile business under the name and style “Cannanore Textorium” can start exclusive business in ready made garments in partnership along with their husbands who have retired from Government service. Bonafides of the need projected was disputed by the revision petitioners who also claimed that they are entitled to the protection of the second proviso to RCR. No. 57/10 -2- sub-section (3) of Section 11. Before the Rent Control Court husband of one of the landladies was examined as PW1. To that oral evidence the respondents examined three witnesses RWs. 1 to 3 including RW2, a broker who was cited to prove that other suitable buildings are not available in the locality for shifting the business of the respondents. Documentary evidence consisted of A1 to A2(f) and B1 to B20. A2 series were certified copies of property tax assessment register pertaining to various buildings showing that those buildings are remaining vacant. The Rent Control Court evaluating the evidence which came on record concluded that the need projected by the landladies was a bonafide one. It was also concluded that the tenants were unsuccessful in showing that they satisfy either of the two ingredients of the second proviso to sub-section (3) of Section 11. Accordingly, that court ordered eviction under sub-section (3) of Section 11. The Appellate Authority re- RCR. No. 57/10 -3- appraised the evidence considering the appeal preferred by the revision petitioners. Nevertheless, that authority also concurred with all the conclusions of the Rent Control Court and confirmed the order of eviction. 2. In this revision under Section 20 various grounds have been raised assailing the findings entered and decision taken by the Appellate Authority. Sri. N.Sukumaran, learned counsel for the revision petitioners addressed us very extensively based on all those grounds. All the submissions of Mr. Sukumaran were resisted by Mr. K.V.Sohan, learned counsel for the respondent. 3. Mr. Sukumaran submitted that the husbands of both the landladies are retired from Government service who are on their own very well placed in life financially. Need as envisaged by sub-section (3) of Section 11, according to Mr.Sukumaran, should involve an element of necessity. In the instant case, the evidence will not support RCR. No. 57/10 -4- the finding that there is atleast an element of necessity in the need which is projected in the RCP and accepted by the authorities below. Mr.Sukumaran would assail the findings entered concurrently by the authorities that the tenants are not entitled to the protection of the second proviso to subsection (3) of Section 11. According to Mr. Sukumaran, the landladies even conceded that the revision petitioners are having no source of income other than the leather goods business which they are carrying on in the schedule premises. That being so, the authorities below were not justified in discarding the account books produced by the revision petitioners for proving the income which they were deriving from the business carried on by them. Even without the production of the account books it could have been safely concluded by the authorities that the first ingredient of the second proviso to sub-section (3) is satisfied in favour of the revision petitioners. Mr. RCR. No. 57/10 -5- Sukumaran drew our attention to the oral evidence of RW2. He submitted that what was spoken to by RW2 was only that some buildings are under construction in certain other areas of the town, including premises in the upper storeys of high rise buildings. Those buildings being not in the same locality and not suitable for the continued conduct of leather goods business, ought to have been taken into account by the authorities below for negativing the plea of the tenants based on the second ingredient of the second proviso to sub-section (3) of Section 11. 4. Mr. Sukumaran would then challenge the finding concurrently entered by both the authorities below that the revision petitioners are not entitled to claim the benefit of sub-section (17) of Section 11 of Act 2 of 1965. He submitted that it is not in dispute that the premises in question have been under the occupation of the predecessors in interest of the revision petitioners since 1-4- RCR. No. 57/10 -6- 1940. He drew our attention to the statutory definition of the term “tenant” in the Act and submitted that the judgment of the Full Bench of this Court in Narayanan v. Shalima, 2003(2) KLT 317 and also the judgment of the Larger Bench in Prabhakaran v. Sulaikabi, 2007(2) KLT 103 approving the Full Bench requires reconsideration. According to Mr. Sukumaran the minority view in the Full Bench is the correct view and the majority view has been taken without noticing the statutory definition of tenant in the statute. 5. Meeting the arguments based on sub-section (17) of Section 11 Mr.Sohan submitted that this is a case where a fresh rental arrangement was struck between the present revision petitioners and the landladies after their predecessor had passed away. Hence it cannot be stated that the lease in question started prior to 1-4-1940. Supporting the order of eviction Mr. Sohan reminded us of the contours of the revisional jurisdiction under Section 20. RCR. No. 57/10 -7- According to Mr. Sohan, the findings entered by the Appellate Authority, which is statutorily the final fact finding authority, are reasonable findings founded on evidence. There is no warrant under the revisional jurisdiction to interfere with those findings. When the attention of Mr.Sohan was drawn to the finding of the statutory authorities that the tenants had not satisfied even the first ingredient of the second proviso to sub-section (3), Mr.Sohan would submit that both the ingredients are in the conjunctive and in as much the finding against the tenants in the context of second ingredient is unassailable it will have to be found that the tenants are not entitled to the protection of the second proviso to sub-section (3) of Section 11. The concept of need in the context of subsection (3) of Section 11 is not the concept of absolute necessity according to Mr.Sohan. What is required is only a reasonable need. PW1's evidence in that regard was not RCR. No. 57/10 -8- shaken in cross examination, so submitted Mr. Sohan. 6. We have very anxiously considered the rival submissions addressed at the Bar. It will be stated immediately that the submission of Mr. Sukumaran that both the Full Bench as well as the Larger Bench gave their verdicts in the context of sub-section (17) of Section 11 without fully comprehending the statutory definition of the word “tenant” was very attractive. But since we are bound by the judgment of the Full Bench and the Larger Bench despite the attractiveness of the submission we fon't find way to accept the same. We therefore approve the decision of the statutory authorities that the revision petitioners cannot aspire for the benefit of sub-section (17) of Section 11. 7. We are unable to accept the argument of Mr.Sukumaran that in order that a need as contemplated by sub-section (3) of Section 11 is established it is necessary RCR. No. 57/10 -9- that there must be a necessity for the landlord or the dependent family member in the sense that the landlord or the dependent family member is in need of funds to be derived from the proposed new business for sustenance. True, bona fide need means something more a mere desire, but it does not mean anything more reasonable requirement involving an element of necessity. This is a case where the statutory authorities appreciated and re-appreciated the oral evidence which was adduced by PW1, the husband of one of the landladies. PW1 gave evidence to the effect that his wife, himself, his sister-in-law and her husband need to start an exclusive show room for ready made garments in the petition schedule building. The authorities have found that despite searching cross examination the version of PW1 in chief examination was not shaken. When the statutory fact finding authorities were impressed by the oral evidence given by PW1 and chose to accept that evidence it will be RCR. No. 57/10 -10- difficult for us, sitting in the present jurisdiction, to reappreciate the evidence and substitute our conclusions unless we are in a position to say that the conclusion concurrently arrived at by the statutory authorities are wholly unreasonable. In the present case, we have scanned the judgment of the appellate authority. We find no way to say that the finding entered by that authority, that the need projected in the RCP and pursued through PW1 is a bona fide one, is illegal, irregular or improper. 8. We shall now deal with the tenants' eligibility for the protection of the second proviso. We find considerable merit in the submission of Mr.Sukumaran that the authorities below were not at all justified in placing no reliance on the account books produced by the tenants regarding the business conducted by them in the premises on the reason that those account books are not attested by the sales-tax authorities. It was not disputed before us by RCR. No. 57/10 -11- Mr.Sohan that the landladies do not have a case that the tenants have source of income other than the business which they are carrying on in the premises. If that be so, it could have been very safely concluded by both the authorities below that the tenants have satisfied the first ingredient of the second proviso to sub-section (3) of Section 11, i.e., they are depending mainly on the income which they derive from the business carried on by them in the petition schedule premises. Reversing the findings of the Rent Control Court and the Appellate Authority regarding the first ingredient we find that the tenant was successful in establishing that they satisfied the first ingredient of the second proviso to sub-section (3). 9. But then, both the ingredients of sub-section (3) are in the conjunctive and unless both the ingredients are found in favour of the tenant, the tenant will not be entitled for the protection of the second proviso. It is trite by various RCR. No. 57/10 -12- decisions including the decision of the Full Bench of this Court in Francis v. Sreedevi Varassiar, 2003(2) KLT 230 F.B. that the burden to prove that the ingredients of the second proviso are satisfied in his favour is on the tenant. In the instant case, to discharge the burden of proof the tenant examined RW2. RW2's evidence was to the effect that in certain other areas of the town (areas not in the vicinity of the building in question) new buildings are coming up. We are unable to accept the argument of Mr.Sukumaran that availability of buildings in the other areas of town will not be sufficient and buildings should be available in the locality itself. Locality according to us, does not mean the immediate vicinity of the building in question. It means a sufficiently larger local area and it is brought out by RW2 himself that in other areas of the town buildings were available. It was for the tenant to have adduced quality evidence and prove that those buildings are not suitable for RCR. No. 57/10 -13- the tenant to shift his business. Apart from the oral evidence of RW2, we find that A2 series of documents which are property tax assessment registers pertaining to various other vacant buildings situated within the area of the town were produced by the landladies. When Ext.A2 series is before the court, the tenant had the burden either to take out a commission and prove that those buildings are not suitable for the tenant's need or atleast to examine the owners of those buildings and prove that those buildings are not available to the tenant. The finding concurrently entered by the statutory authorities that the tenant was unsuccessful in proving that he satisfies the second ingredient of the second proviso, in our view, does suffer from any illegality, irregularity or impropriety. Once it is found that second ingredient of the second proviso is not satisfied, then it necessarily has to be found that the tenant is not entitled for the benefit of the second proviso. RCR. No. 57/10 -14- 10. The result of the above discussion is that the revision petition necessarily has to fail. As last plea Mr. Sukumaran submitted that atleast one year's time be granted to the revision petitioners to surrender the premises. The above request was very stiffly opposed by Mr. Sohan. However, we feel that on the totality of the circumstances attending on this case there is justification for granting more than normal period of time to the revision petitioners for vacating the premises. Hence even as we confirm the order of eviction and dismiss the RCR we direct the execution court not to order and effect delivery of the building till 31-03-2011 subject to the following conditions: One of the revision petitioners representing all of them will file an affidavit before the execution court or the Rent Control Court within one month from today undertaking to give peaceful surrender of the building to the respondents on or before 31-3-2011. Through the same affidavit it will RCR. No. 57/10 -15- be undertaken that they will discharge the arrears of rent if any within one month and pay occupational charges at the current rent rate till such time as the building is surrendered. We make it clear that the revisions petitioners will be entitled to the benefit of time granted as above only if the affidavit is filed on time. **(PIUS C.KURIAKOSE, JUDGE)** **(C.K.ABDUL REHIM, JUDGE)** ksv/-