V.P. AYOOB S/O MUHAMMED KUNHI v. K.P. HASHIQ, K.P. MESHOOQUE, K.P. SHAFEEQUE (RCA 174/2013)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 14TH DAY OF DECEMBER 2016/23RD AGRAHAYANA, 1938 RCRev..No. 314 of 2016 -------------------------RCA 174/2013 of ADDL. DISTRICT COURT - III, THALASSERY RCP 180/2012 of ADDL.MUNSIFF COURT, KANNUR REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------- V.P.AYOOB S/O. MUHAMMED KUNHI AGED 43 YEARS BUSINESS, MOBILE CENTRE, NEAR MERIDIYAN PALACE HOTEL BELLARD ROAD, KANNUR-1 BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI SRI.PRAJIT RATNAKARAN SMT.GRACY POULOSE RESPONDENTS/RESPONDENTS/PETITIONERS -------------- 1. K.P.HASHIQ, S/O A.K.P.MUSTHAFA, AGED 49 YEARS, KALLINGAL HOUSE, MUZHATHADAM AMSOM, KANNUR-670662 2. K.P.MESHOOQUE, S/O A.K.P.MUSTHAFA, AGED 42 YEARS, KALLINGAL HOUSE, MUZHATHADAM AMSOM, KANNUR-670662 3. K.P.SHAFEEQUE, S/O A.K.P.MUSTHAFA, AGED 39 YEARS, KALLINGAL HOUSE, MUZHATHADAM AMSOM, KANNUR-670662 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 6.10.2016, THE COURT ON 14-12-2016 PASSED THE FOLLOWING: ## **K.T.SANKARAN & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - ## R.C.R.314 of 2016 - - - - - - - - - - - - - - - - Dated 14[th] December, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## Babu, J. - 1.Revision petitioner is the tenant. Respondents are the landlords. Eviction was sought under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short, “the Act”). The Rent Control Court found that the need of the respondents for own occupation was bona fide. The claim of the tenant under the second Proviso to Section 11(3) of the Act was negatived. The Appellate Authority confirmed the order of the Rent Control Court. - 2.Admittedly the 2[nd] respondent is running a business in partnership. It is for him to do an independent business the respondents seek to evict the revision petitioner. The **R.C.R.314/16** 2 business the 2[nd] respondent proposes to do is stated to be the sale and service of mobile phones. According to the revision petitioner, the alleged need is only a ruse for eviction. It is contended that the 2[nd] respondent who is affluent will not conduct a small trade like the sale and service of mobile phones. The Rent Control Court and the Appellate Authority found the need for own occupation to be bona fide. This finding is challenged by the revision petitioner. - 3.The revision petitioner is challenging a concurrent finding. We may in this connection refer to a Division Bench of this Court in Sadanandan v. Kunheen (1991 (2) KLT 628). The Division Bench has held that (i) the power under Section 20 of the Act is a limited power, (ii) the power is given to enable the Court to satisfy itself as to the legality, regularity and **R.C.R.314/16** 3 propriety of the order challenged in the revision and (iii) a re-appraisal of the evidence is possible only for a limited purpose to ascertain the legality, regularity or propriety of the impugned order. In the present case valid, convincing and cogent reasons are stated by both the courts below to find the need to be bona fide. The tenant did not challenge the capability of the 2[nd] respondent to conduct the proposed business. The contention was only that the rich 2[nd] respondent would not do a small trade like the sale and service of mobile phones. It is for the 2[nd] respondent to decide what kind of business he should conduct as rightly stated by both the courts below. There is little scope to interfere with the concurrent finding that the need is bona fide. 4.There has been a feeble attempt to defeat ## **R.C.R.314/16** 4 the landlords under the first Proviso to Section 11(3) of the Act. A landlord needs to establish special reasons within the meaning of the aforesaid Proviso only if he is in possession of another building of his own in the same city, town or village. Three rooms have been suggested by the revision petitioner as belonging to the respondents. But the former in his crossexamination conceded that those rooms were not vacant. The concurrent finding on the first Proviso shall also be confirmed. We do so. - 5.The tenant claimed protection under the second Proviso to Section 11(3) of the Act. He shall prove that he is depending for his livelihood mainly on the income derived from the business carried on in the tenanted premises. He should further prove that there is no suitable building available in the locality for him to do **R.C.R.314/16** 5 his business. 6.The finding on the first limb of the second Proviso to Section 11(3) was also a concurrent finding. The tenant is allegedly conducting the business of sale and service of mobile phones and the sale of pre-paid recharge coupons. He did not disclose his income from the business. His learned counsel is of the view that the precise income of the tenant has relevance only if he has more than one source of income. If this argument is accepted, even a tenant whose business was always at loss would also get the protection of the second Proviso. That is not the purport of the first limb of the proviso. The tenant failed to prove that his main source of livelihood was the income derived from the business carried on in the premises tenanted to him. 6 ## **R.C.R.314/16** 7.The learned counsel submitted that the landlords did not prove any other source of income for the tenant. But the definite case of the landlords was that the tenant was not conducting any business in the tenanted premises. Although sub-lease was not taken as a ground for eviction, the respondents specifically alleged that the revision petitioner had sublet the premises on a daily rent of Rs.700/-. In view of the said contention it was incumbent upon the tenant to prove the running of business by him in the tenanted premises. He did not produce any document other than Exts B1 series licence-fees receipts and Exts B2 series profession tax receipts issued by the Municipality. Those receipts may prove the right to do the business, but certainly not the actual doing of the business. The documents such as accounts, bills etc. could prove the running of business by the tenant and his ## **R.C.R.314/16** **==> picture [7 x 9] intentionally omitted <==** income from the business. He did not choose to produce any such evidence. The very claim of the tenant that he is running a business in the tenanted premises is doubtful. The first limb of the second Proviso is not meant for such a tenant. 8.Now, the second limb of the second proviso. The burden of proof is on the tenant again. He should prove the nonavailability of a suitable building in the locality. His learned counsel submits that the burden to prove a negative aspect stands discharged when the tenant asserts in the witness box that no suitable building is available in the locality. That may be the position in a case where such assertion of the tenant is not successfully challenged in the crossexamination (vide Sadanandan v. Kunheen - 1991 (2) KLT 628) or in a case where there **R.C.R.314/16** 8 is no contra evidence on the side of the landlord. The present one is not such a case. The impugned judgment shows that PW1 (the 2[nd] respondent herein) did speak to the availability of vacant buildings in the locality. It is also seen that a specific suggestion was put to RW1 (the revision petitioner) that vacant rooms were available in a building named Meridian Complex owned by his own uncle. RW1 denied the suggestion. But he did not take out a commission to prove that no room was vacant in the said building. He did not examine his uncle, the owner of Meridian Complex. The tenant did not choose to examine the Accommodation Controller. Nor did the tenant take steps to cause the production of the register maintained by the Accommodation Controller. The tenant failed to prove the second limb of the second Proviso. **R.C.R.314/16** 9 9.The learned counsel for the revision petitioner requested to grant a period of one year to vacate the premises in the event of dismissal of the revision. It is just and reasonable to grant a reasonable time to the revision petitioner to vacate the premises. But the period of one year requested for is too long. The respondents have been waiting since 2012 to get vacant possession. The revision petitioner is given time till 31.3.2017 to vacate the premises, provided he files an affidavit before the Rent Control Court within one month from today undertaking to vacate the premises on or before 31.3.2017. It shall also be a condition for the grant of time that he shall clear the arrears of rent (if any) within one month from today and pay the rent on or before the 10[th] of every month. If any of the above conditions is not complied with, the benefit of granting time till 31.3.2017 will sand withdrawn 10 ## **R.C.R.314/16** without any further order. - 10.The revision petition is without any merit. The same is dismissed. However, the revision petitioner is given time till 31.3.2017 to vacate the premises, provided he complies with the conditions referred to above. ## **Sd/K.T.SANKARAN Judge** **Sd/A.M.BABU Judge** Mrcs/17.10.2016 //True copy// P.S to Judge