Zakkir Hussain v. Vijayamohan; Shameela Zakkir Hussain v. Vijayamohan (RC Rev. Nos.190/2018 and 196/2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944 RCREV. NO. 190 OF 2018** **AGAINST THE ORDER/JUDGMENT IN RCP NO.14 OF 2014 OF MUNSIFF COURT, KAYAMKULAM CONCURRING WITH THE COMMON ORDER IN RCA NO.8 OF 2016 OF ADDITIONAL DISTRICT COURT-I,** ## **MAVELIKKARA** ## **PETITIONER/APPELLANT IN R.C.A/RESPONDENT IN R.C.P:** **ZAKKIR HUSSAIN, AGED 54 YEARS S/O.SHIHABUDEEN KUNJU, KOICKAL VEEDU, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE, KAYAMKULAM, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** ## **RESPONDENT/RESPONDENT IN R.C.A/PETITIONER IN RCP:** **VIJAYAMOHANAN, AGED 46, S/O.MOHANKUMAR, ILLIKKULATHU VEEDU, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT. SRI.A.R.DILEEP SRI.GEORGE VARGHESEPERUMPALLIKUTTIYIL SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH RCRev..196/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.Nos.190 and 196 of 2018 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944 RCREV. NO. 196 OF 2018** **AGAINST THE ORDER/JUDGMENT IN RCP NO.15 OF 2014 OF MUNSIFF COURT,KAYAMKULAM CONCURRING WITH THE COMMON ORDER IN RCA NO.9 OF 2016 DATED 14.03.2018 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA** **PETITIONER/APPELLANT IN R.C.A/RESPONDENT IN R.C.P:** **SHAMEELA ZAKKIR HUSSAIN, AGED 49 YEARS, W/O. ZAKKIR HUSSAIN (ALSO KNOWN AS 'SAKEER HUSSAIN') KOICKAL VEEDU, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 533.** **BY ADVS. SRI.P.B.KRISHNAN SMT.B.ANUSREE SRI.MANU VYASAN PETER SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** **RESPONDENT/RESPONDENT IN R.C.A./PETITIONER IN R.C.P:** **VIJAYAMOHANAN, AGED 46, S/O. MOHANKUMAR, ILLIKKULATHU VEEDU, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT - 690 502.** R.C.Rev.Nos.190 and 196 of 2018 3 **SRI.A.R.DILEEP** **SRI.GEORGE VARGHESEPERUMPALLIKUTTIYIL SRI.P.J.JOE PAUL** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH RCRev..190/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 R.C.Rev.Nos.190 and 196 of 2018 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------Rent Control Revision Nos.190 and 196 of 2018 ----------------------------------------------Dated this the 4[th] day of January, 2023.** ## **ORDER** ## **P.B.Suresh Kumar, J.** These revision petitions preferred under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) arise from two eviction petitions namely, R.C.P. No.14 of 2014 and R.C.P. No.15 of 2014 on the files of the Rent Control Court, Kayamkulam. The landlord in the eviction petitions is one and the same. The subject matter of the eviction petitions are adjacent shop rooms in a commercial complex owned by the landlord. The tenant in R.C.P. No.14 of 2014 is the husband of the tenant in R.C.P.No.15 of 2014. Eviction petitions were preferred under Sections 11(2)(b) and 11(3) of the Act. The Rent Control Court allowed the eviction petitions in part ordering eviction of the tenants under Section 11(3) and the said decision of the Rent Control Court was affirmed in R.C.Rev.Nos.190 and 196 of 2018 5 appeal by the Appellate Authority. The tenants are aggrieved by the said decisions of the authorities below and hence these revision petitions. 2. The subject matter of R.C.P.No.14 of 2014 is a portion in the ground floor of the commercial complex where the tenant is running a jewellery in the name and style 'Koickal Jewellers' and the subject matter of R.C.P.No.15 of 2014 is a portion of the commercial complex adjoining the portion held by the tenant in R.C.P.No.14 of 2014 where the tenant is running a jewellery workshop. The premises which is the subject matter of R.C.P.No.14 of 2014 is a larger area when compared to the premises in R.C.P.No.15 of 2014. It is alleged by the landlord in the eviction petitions that the premises which is the subject matter of R.C.P.No.14 of 2014 was leased out to the tenant therein on 01.01.2012 on a monthly rent of Rs.10,500/- and the premises which is the subject matter of R.C.P.No.15 of 2014 was leased out to the tenant therein on the very same day on a monthly rent of Rs.1200/-. The case set out by the landlord in the eviction petitions is that he intends to start a super market in the subject premises as also in the premises adjoining the same occupied by another tenant for running a bakery. It is alleged 6 R.C.Rev.Nos.190 and 196 of 2018 by the landlord that even though the tenant who is running the bakery in the building has agreed to surrender the premises within a period of one year, the tenants in the subject cases have refused to surrender the respective premises for the purpose intended. It was also alleged by the landlord that there are a few vacant spaces on the first floor of the commercial complex above the tenanted premises as also on the rear side of the commercial complex which has independent access, and even though the landlord offered the same to the tenants for their business, the tenants did not accept the said offer made. The tenants preferred objections to the eviction petitions contending mainly that the need put forward is not _bona fide,_ and even if it is found to be _bona fide,_ the landlord is not entitled to an order of eviction under Section 11(3), as the tenants are entitled to the benefit of the provisos to Section 11(3). 3. The eviction petitions were tried together. In the proceedings, the landlord gave evidence as PW1. The documentary evidence on the side of the landlord are Exts.A1 to A22. The tenant in R.C.P.No.14 of 2014 gave evidence as RW1. Four other witnesses have also been examined on the side of the tenants as RW2 to RW5. Exts.B1 to B9 are the documentary evidence on the side of the R.C.Rev.Nos.190 and 196 of 2018 7 tenants. Ext.C1 is the report of the Advocate Commissioner and Ext.C1(a) is the rough sketch prepared by the Advocate Commissioner. Exts.X1 to X7 are third party documents summoned and proved at the instance of the tenants. 4. It is seen that in order to establish the case of the tenants that the need put forward by the landlord for eviction is not _bona fide,_ it was contended by the tenants, among others, that the need projected by the landlord in the notice issued to the tenants prior to the institution of the proceedings was that he intends to establish the super market along with his wife, whereas, the allegation in the eviction petitions is that he intends to start a super market as a proprietary concern. According to the tenants, the aforesaid versions of the need are inconsistent and the need cannot, therefore, be said to be bona fide. It was also contended by the tenants for the said purpose that there are several vacant rooms in the very same commercial complex where the landlord can certainly run a super market and the case that the tenants are to be evicted for the purpose of running the super market, cannot therefore be said to be _bona fide_ . On an elaborate consideration of the facts and circumstances of the case, the Rent Control Court found that the 8 R.C.Rev.Nos.190 and 196 of 2018 need set out by the landlord for eviction is _bona fide_ , repelling the contentions raised by the tenants in this regard. The Rent Control Court also found that the tenants are not depending solely on the income from the business carried on in the tenanted premises for their livelihood; that there are very many vacant buildings in the locality where the tenants could carry on the business conducted by them in the tenanted premises, in the event of their eviction and the tenants are, therefore not entitled to the benefit of the second proviso to Section 11(3) of the Act. In the light of the findings aforesaid, as noted, the eviction petitions were allowed and the tenants were ordered to be evicted under Section 11(3). As pointed out, though the tenants challenged the decision of the Rent Control Court in appeal, on a reappraisal of the materials on record, the Appellate Court affirmed the decision of the Rent Control Court. As noted, the tenants are aggrieved by the decisions aforesaid of the authorities below. 5. Heard the learned Senior Counsel for the tenants as also the learned counsel for the landlord. 6. The learned Senior Counsel for the tenants argued the matter elaborately by taking us through the pleadings of the 9 R.C.Rev.Nos.190 and 196 of 2018 parties as also the evidence let in by them. The attempt of the learned Senior counsel was to establish that the need set out by the landlord for eviction is not _bona fide_ . It was argued by the learned Senior Counsel that when a substantial portion of the very same building is lying vacant, the need put forward by the landlord that he wants to start a super market in the portion of the building occupied by the tenants itself, cannot be said to be _bona fide_ . According to him, the concurrent findings rendered in this regard by the authorities below are perverse and liable to be set at naught by this court in this proceedings under Section 20 of the Act. The learned Senior Counsel has also argued strenuously that even otherwise, the authorities below ought to have extended to the tenants the benefit of the first proviso to Section 11(3) of the Act. It was also argued by the learned Senior Counsel that the findings rendered by the authorities below that the tenants are not entitled to the benefit of the second proviso to Section 11(3) are faulty. According to the learned Senior Counsel, the benefit of the second proviso to Section 11(3) of the Act was denied to the tenants by the authorities below mainly on the ground that tenant in R.C.P.No.14 of 2014 is running several other jewelleries also in the name and style 'Koickal 10 R.C.Rev.Nos.190 and 196 of 2018 Jewellers' and that the tenants cannot, therefore, be said to be persons depending solely on the income derived from the business carried on in the tenanted premises. It was argued by the learned Senior Counsel, placing reliance on the evidence tendered by the tenant in the proceedings as RW1 that the tenant in R.C.P.No.14 of 2014 is running only the jewellery that is being run by him in the tenanted premises and other jewelleries run in and around the locality in the very same name are jewelleries run by his siblings. 7. Per contra, the learned counsel for the landlord supported the impugned judgment contending mainly that there is no illegality, irregularity or impropriety in the impugned decisions, warranting interference of this court under Section 20 of the Act. 8. We have examined the arguments advanced by the learned counsel for the parties. 9. In exercise of the power under Section 20 of the Act, the jurisdiction of this Court is only to ensure that the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, re-appreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the finding can be said to be either erroneous 11 R.C.Rev.Nos.190 and 196 of 2018 or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse warranting correction under Section 20 of the Act. 10. Let us consider the arguments advanced by the learned Senior Counsel for the tenants keeping in mind the principles referred to above. As noted, the attempt on the part of the learned Senior Counsel for the tenants was to establish that there is no _bona fides_ in the need set out in the eviction petitions for eviction of the tenants. It is trite that the need for eviction of a tenant in order to be _bona fide_ , shall not be a mere desire or pretext, but shall be a real, natural and sincere one. The need set out by the landlord viz, that he intends to establish a super market in the tenanted premises has been categorically pleaded by him in the eviction petitions. The landlord being a person who owns a commercial complex in a commercially important locality, it cannot be said that 12 R.C.Rev.Nos.190 and 196 of 2018 the need put forward by him is a ruse for eviction of the tenants. Be that as it may, he gave oral evidence in support of the said pleadings as PW1. The evidence tendered by the landlord in this regard does not appear to have been discredited in any manner whatsoever by the tenants by cross-examining the landlord. The concurrent findings rendered by the authorities below on this aspect, in the circumstances, cannot be said to be illegal, irregular or improper in any manner. Even though it was contended by the tenants before the authorities below that the case put forward by the landlord is not consistent in the notice issued prior to the eviction petitions, inasmuch as the case put forward by the landlord in the notice issued prior to the proceedings was that he intends to run the business along with his wife, we do not find any merit in the said contention as it has come out in evidence that there were matrimonial issues between the landlord and his wife and the eviction petitions were instituted after they preferred joint application for annulment of their marriage. It is in the aforesaid background, in the eviction petitions instituted subsequently, it was pleaded by the landlord that he intends to run the supermarket as a proprietary concern, though the case in the notice issued prior to the 13 R.C.Rev.Nos.190 and 196 of 2018 institution of the eviction petitions was that he intends to start a supermarket jointly with his wife. The authorities below, having regard to the aforesaid facts, took the view that the trivial change made in the proposal of the landlord can never be considered as a circumstance affecting the _bona fides_ of the landlord. The view aforesaid cannot be said to be erroneous or perverse. As regards the arguments raised based on the vacant rooms in the commercial complex, it is necessary to point out that the landlord has stated in the eviction petitions itself that a few rooms in the upper floor of the commercial complex above the tenanted premises as also a few rooms in the ground floor and in the upper floors of the commercial complex on the rear side of the portion of the building occupied by the tenants are vacant. It was also pleaded by the landlord in the eviction petitions that as the said vacant premises are not suitable for running a supermarket, he offered the same to the tenants for shifting their business and even though the tenants agreed to shift their business to the first floor of the building above the tenanted premises, they refused to do so later. It is well settled that if the requirement of a landlord is found to be _bona fide_ , the landlord should have the freedom to decide as to which portion of the 14 R.C.Rev.Nos.190 and 196 of 2018 building should be used by him for the purpose intended. As such, merely for the reason that a portion of the commercial complex where the landlord has proposed to run the supermarket is vacant, it cannot be said that the need is not bona fide, inasmuch as it is established that the need is a genuine one and the vacant premises in the building are not suitable for the purpose intended. The view aforesaid cannot also be said to be erroneous or perverse. This finding of ours covers the argument advanced by the learned Senior Counsel for the tenants as regards the entitlement of the tenants for the benefits under the first proviso to Section 11(3) of the Act also. 11. What remains to be considered is the argument advanced by the learned Senior Counsel for the tenants that the tenants have established that they are entitled to the benefit of the second proviso to Section 11(3). It is trite that in order to claim the benefit of the second proviso to Section 11(3), the tenants have to establish that they are depending solely on the income from the business carried on in the tenanted premises for their livelihood and that there are no other vacant buildings in the locality where they could carry on the activity carried on in the tenanted premises. True, there are no convincing materials to hold that other jewelleries in 15 R.C.Rev.Nos.190 and 196 of 2018 the locality run in the name and style “Koickal Jewellers” are run by the tenant in R.C.P.No.14 of 2014. But, there are amble materials to indicate that the tenant in R.C.P.No.14 of 2014 has income other than the income derived from the business carried on by him in the tenanted premises. The tenants are income tax assessees. In crossexamination, the tenant in R.C.P.No.14 of 2014 has admitted that he is paying income tax for the income derived from other sources as well. Even though he did not specifically state as to what are the other sources of his income, he has stated that the same might be his income from agricultural operations. As noted, tenant in R.C.P.No.14 of 2014 is none other than the husband of the tenant in R.C.P. No.15 of 2014. If the tenant in R.C.P.No.14 of 2014 cannot be said to be a person depending solely on the income from the business carried on in the tenanted premises therein for his livelihood, the tenant in R.C.P.No.15 of 2014 who is none other than the wife of the tenant in R.C.P.No.14 of 2014 cannot also claim that she is depending solely on the income from the business carried on by her in the tenanted premises therein. That apart, the report of the Advocate Commissioner appointed in the proceedings indicates that there are several vacant buildings in the locality where the tenanted 16 R.C.Rev.Nos.190 and 196 of 2018 premises are situated. The tenant in R.C.P.No.14 of 2014 was crossexamined in respect of those buildings and the answers given by him to the questions in this regard were all evasive, as he has adopted a uniform stand that none of those buildings are suitable for his business. It is in the above background that the authorities below took the view that the tenants have not established that they are entitled to the benefit of the second proviso to Section 11(3). The view aforesaid cannot also be said to be erroneous or perverse on any grounds whatsoever. Needless to say, there is no illegality, irregularity or impropriety in the impugned decisions, warranting interference of this Court under Section 20 of the Act as regards the fixation of fair rent. In the result, the revision petitions are dismissed. However, having regard to the peculiar facts of this case, especially that the tenants need to make a lot of arrangements like construction of locker and similar for the purpose of shifting their business to another premises, we deem it appropriate to grant the tenants one year time from today to surrender vacant possession of the premises on condition that they shall file an unconditional undertaking before the Rent Control Court within one month to 17 R.C.Rev.Nos.190 and 196 of 2018 vacate the tenanted premises within one year and also that they shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent at the agreed rate on or before the tenth day of every succeeding month for the first six months and rent at 1.25 times of the agreed rate for the remaining six months, till they vacate the premises. Ordered accordingly. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** YKB