Kerala High Court
T B C Muhammed Haji vs T Shamsudheen on 2 March, 2020
Bench: K.Harilal, C.S.Dias
RCRev..No.145/2019 & connected cases
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA,
1941
RCRev..No.145 OF 2019
AGAINST THE JUDGMENT IN RCA 59/2014 OF ADDITIONAL
DISTRICT COURT - III, THALASSERY
AGAINST THE ORDER IN RCP 16/2010 OF PRINCIPAL MUNSIFF
COURT,KANNUR
REVISION PETITIONER/APPELLANT/RESPONDENT:
T B C MUHAMMED HAJI,AGED 65 YEARS
S/O.MOIDEEN HAJI, BUSINESS, CAPITAL WOOD,
INDUSTRIES, PORT ROAD, P.O.AZHIKODE, KANNUR
DISTRICT, AZHIKODE NORTH AMSOM, DESOM,
KANNUR TALUK, KANNUR DISTRICT, PIN-670009.
BY ADVS.ABHILASH K N
SRI.SUNIL NAIR PALAKKAT
RESPONDENT/RESPONDENT/PETITIONER:
T SHAMSUDHEEN,
AGED 47 YEARS, S/O.ABDULLA, EMPLOYED ABROAD,
SHAMS, ADOOR.P.O., KADACHIRA, KANNUR
DISTRICT, PIN-670621, REP. BY HIS POWER OF
ATTORNEY HOLDER, T.RASHEED, AGED 47 YEARS,
S/O.ABDULLA, THUNDIYIL HOUSE, CHEMBILODE
AMSOM, KOYYOD DESOM, KANNUR DISTRICT,
PIN-670613.
R1 BY ADV. SRI.R.PARTHASARATHY
R1 BY ADV. SRI.RAJESH V.NAIR
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 2-03-2020, ALONG WITH RCRev Nos.148/2019,
149/2019, 155/2019, 158/2019, 159/2019,160/2019, AND
164/2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RCRev..No.145/2019 & connected cases
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA,
1941
RCRev..No.148 OF 2019
AGAINST THE JUDGMENT IN RCA 58/2014 DATED 31-08-2018 OF
ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY
AGAINST THE ORDER IN RCP 14/2010 DATED 18-01-2014 OF
ADDITIONAL MUNSIFF COURT, KANNUR
REVISION PETITIONER/APPELLANT/RESPONDENT:
T.B.C.MUHAMMED HAJI,AGED 65 YEARS
S/O.MOIDHEEN HAJI, BUSINESS, CAPITAL WOOD,
INDUSTRIES, PORT ROAD, P.O.AZHIKODE, KANNUR
DISTRICT, AZHIKODE NORTH AMSOM, DESOM,
KANNUR TALUK, KANNUR DISTRICT, PIN-670009.
BY ADVS.
SRI.K.N.ABHILASH
SRI.SUNIL NAIR PALAKKAT
RESPONDENT/RESPONDENT/PETITIONER:
T.SHAMSUDHEEN, AGED 47 YEARS,
S/O.ABDULLA, EMPLOYED ABROAD, SHAMS, ADOOR
P.O., KADACHIRA, KANNUR DISTRICT, PIN-
670621, REP.BY HIS POWER OF ATTORNEY HOLDER,
T.RASHEED, AGED 47 YEARS, S/O.ABDULLA,
THUNDIYIL HOUSE, CHEMBILODE AMSOM, KOYYOD
DESOM, KANNUR DISTRICT, PIN-670613.
R1 BY ADV. SRI.R.PARTHASARATHY
R1 BY ADV. SRI.RAJESH V.NAIR
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 02-03-2020, ALONG WITH RCRev..145/2019,
149/2019,155/2019, 158/2019, 159/2019, 160/2019, AND
164/2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RCRev..No.145/2019 & connected cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA,
1941
RCRev..No.149 OF 2019
AGAINST THE JUDGMENT IN RCA 60/2014 DATED 31-08-2018 OF
ADDITIONAL DISTRICT COURT - III, THALASSERY
AGAINST THE ORDER IN RCP 18/2010 DATED 18-01-2014 OF
ADDITIONAL MUNSIFF COURT, KANNUR
REVISION PETITIONER/APPELLANT/RESPONDENT:
T.B.C.MUHAMMED HAJI,AGED 65 YEARS
S/O. MOIDEEN HAJI, BUSINESS,CAPITAL
WOOD,INDUSTRIES, PORT ROAD, P.O.AZHIKODE,
KANNUR DISTRICT, AZHIKODE NORTH AMSOM,
DESOM, KANNUR TALUK, KANNUR DISTRICT,
PIN-670 009
SRI.K.N.ABHILASH
SRI.SUNIL NAIR PALAKKAT
RESPONDENT/RESPONDENT/PETITIONER:
T.SHAMSUDHEEN, AGED 47 YEARS,
S/O. ABDULLA,EMPLOYED ABORAD, SHAMS, ADOOR
P.O., KADACHIRA, KANUR DISTRICT,PIN -670
621,REP BY HIS PWER OF ATTORNEY HOLDER,
T.RASHEED, AGED 47 YEARS, S/O. ABDULLA,
THUNDIYIL HOUSE, CHEBILODE AMSOM, KOYYOD
DEOM, KANNUR DISTRICT, PIN-670 613.
R1 BY ADV. SRI.R.PARTHASARATHY
R1 BY ADV. SRI.RAJESH V.NAIR
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 2-03-2020, ALONG WITH RCRev.145/2019 148/2019,
155/2019, 158/2019,159/2019, 160/2019, 164/2019, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
RCRev..No.145/2019 & connected cases
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA,
1941
RCRev.No.155 OF 2019
AGAINST THE JUDGMENT IN RCA 68/2014 DATED 31-08-2018 OF
ADDITIONAL DISTRICT COURT - III, THALASSERY
AGAINST THE ORDER IN RCP 18/2010 DATED 18-01-2014 OF
ADDITIONAL MUNSIFF COURT, KANNUR
REVISION PETITIONER/RESPONDENT/RESPONDENT:
T.B.C.MUHAMMED HAJI,
AGED 65 YEARS,
S/O.MOIDHEEN HAJI, BUSINESS, CAPITAL WOOD,
INDUSTRIES, PORT ROAD, P.O.AZHIKODE, KANNUR
DISTRICT, AZHIKODE NORTH AMSOM DESOM, KANNUR
TALUK, KANNUR DISTRICT, PIN-670009.
BY ADVS.
SRI.K.N.ABHILASH
SRI.SUNIL NAIR PALAKKAT
RESPONDENT/APPELLANT/PETITIONER:
T.SHAMSUDHEEN, AGED 47 YEARS,
S/O.ABDULLA, EMPLOYED ABROAD, 'SHAMS',
ADOOR P.O. KADACHIRA, KANNUR DISTRICT, PIN-
670621 REP. BY HIS POWER OF ATTORNEY HOLDER,
T.RASHEED, AGED 47 YEARS, S/O.ABDULLA,
THUNDIYIL HOUSE, CHEMBILODE AMSOM,
KOYYOD DESOM, KANNUR DISTRICT, PIN-670613.
R1 BY ADV. SRI.RAJESH V.NAIR
R1 BY ADV. SRI.R.PARTHASARATHY
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 2-03-2020, ALONG WITH RCRev.Nos.145/2019,
148/2019, 149/2019, 158/2019, 159/2019, 160/2019 and
164/2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RCRev..No.145/2019 & connected cases
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA,
1941
RCRev..No.158 OF 2019
AGAINST THE JUDGMENT IN RCA 66/2014 DATED 31-08-2018 OF
ADDITIONAL DISTRICT COURT - III, THALASSERY
AGAINST THE ORDER IN RCP 14/2010 DATED 18-01-2014 OF
ADDITIONAL MUNSIFF COURT, KANNUR
REVISION PETITIONER/RESPONDENT/RESPONDENT:
T.B.C MUHAMMED HAJI
AGED 65 YEARS,
S/O.MOIDHEEN HAJI, BUSINESS, CAPITAL WOOD,
INDUSTRIES, PORT ROAD, P.O.AZHIKODE, KANNUR
DISTRICT, AZHIKODE NORTH AMSOM, DESOM,
KANNUR TALUK, KANNUR DISTRICT, PIN-67009.
BY ADVS.
SRI.K.N.ABHILASH
SRI.SUNIL NAIR PALAKKAT
RESPONDENT/APPELLANT/PETITIONER:
T.SHAMSUDHEEN, AGED 47 YEARS,
S/O.ABDULLA, EMPLOYED ABROD, SHAMS, ADOOR,
P.O.KADACHIRA, KANNUR DISTRICT, PIN-670621
REP BY HIS POWER OF ATTORNEY HOLDER,
T.RASHEED, AGED 47 YEARS, S/O.ABDULLA,
THUNDIYIL HOUSE, CHEMBILODE AMSOM, KOYYOD
DESOM, KANNUR DISTRICT, PIN-670613.
R1 BY ADV. SRI.R.PARTHASARATHY
R1 BY ADV. SRI.RAJESH V.NAIR
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 2-03-2020, ALONG WITH RCRev Nos.145/2019,
148/2019, 149/2019,155/2019, 159/2019, 160/2019 and
164/2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RCRev..No.145/2019 & connected cases
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 02ND DAY OF MARCH 2020/ 12TH PHALGUNA, 1941
RCRev..No.159 OF 2019
AGAINST THE JUDGMENT IN RCA 57/2014 OF ADDITIONAL
DISTRICT COURT III, THALASSERY
AGAINST THE ORDER IN RCP 12/2010 OF ADDITIONAL MUNSIFF
COURT, KANNUR
REVISION PETITIONER/APPELLANT/RESPONDENT:
T.B.C.MUHAMMED HAJI,AGED 65 YEARS,
S/O.MOIDHEEN HAJI,BUSINESS,CAPITAL WOOD
INDUSTRIES,PORT ROAD,P.O.AZHIKODE,
KANNUR DISTRICT,AZHKODE NORTH AMSOM,
DESOM,KANNUR TALUK,KANNUR DISTRICT,
PIN-670009.
BY ADVS.
SRI.K.N.ABHILASH
SRI.SUNIL NAIR PALAKKAT
RESPONDENT/RESPONDENT/PETITIONER:
T.SHAMSUDHEEN, AGED 47 YEARS,
S/O.ABDULLA,EMPLOYED
ABROAD,'SHAMS',ADOOR.P.O,KADACHIRA,
KANNUR DISTRICT,PIN-670621.
REP.BY HIS POWER OF ATTORNEY HOLDER,
T.RASHEED,AGED 47 YEARS,S/O.ABDULLA,
THUNDIYIL HOUSE,CHEMBILODE AMSOM.
KOYYOD DESOM,KANNUR DISTRICT, PIN-670613.
R1 BY ADV. SRI.RAJESH V.NAIR
R1 BY ADV. SRI.R.PARTHASARATHY
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 2-03-2020, ALONG WITH RCRev.Nos.145/2019,
148/2019, 149/2019, 155/2019, 158/2019, 160/2019, and
164/2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RCRev..No.145/2019 & connected cases
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA,
1941
RCRev..No.160 OF 2019
AGAINST THE JUDGMENT IN RCA 65/2014 DATED 31-08-2018 OF
ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY
AGAINST THE ORDER IN RCP 12/2010 DATED 18-01-2014 OF
ADDITIONAL MUNSIFF COURT, KANNUR
REVISION PETITIONER/RESPONDENT/RESPONDENT:
T.B.C.MUHAMMED HAJI,AGED 65 YEARS,
S/O.MOIDHEEN HAJI, BUSINESS, CAPITAL WOOD,
INDUSTRIES, PORT ROAD, P.O.AZHIKODE, KANNUR
DISTRICT, AZHIKODE NORTH AMSOM, DESOM,
KANNUR TALUK, KANNUR DISTRICT, PIN-670009.
BY ADVS.
SRI.K.N.ABHILASH
SRI.SUNIL NAIR PALAKKAT
RESPONDENT/APPELLANT/PETITIONER:
T.SHAMSUDHEEN, AGED 47 YEARS,
S/O.ABDULLA, EMPLOYED ABROAD, SHAMS,
ADOOR.P.O. KADACHIRA, KANNUR DISTRICT, PIN-
670621. REP BY HIS POWER OF ATTORNEY HOLDER,
T.RASHEED, AGED 47 YEAS, S/O.ABDULLA,
THUNDIYIL HOUSE, CHEMBILODE AMSOM, KOYYOD
DESOM, KANNUR DISTRICT, PIN-670613
R1 BY ADV. SRI.RAJESH V.NAIR
R1 BY ADV. SRI.R.PARTHASARATHY
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 2-03-2020, ALONG WITH RCRev Nos.145/2019,
148/2019, 149/2019, 155/2019, 158/2019, 159/2019,
164/2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RCRev..No.145/2019 & connected cases
8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA,
1941
RCRev..No.164 OF 2019
AGAINST THE JUDGMENT IN RCA 67/2014 DATED 31-08-2018 OF
ADDITIONAL DISTRICT COURT - III, THALASSERY
AGAINST THE ORDER IN RCP 16/2010 DATED 18-01-2014 OF
ADDITIONAL MUNSIFF COURT, KANNUR
REVISION PETITIONER/RESPONDENT/RESPONDENT:
T.B.C.MUHAMMED HAJI,AGED 65 YEARS
S/O.MOIDHEEN HAJI, BUSINESS, CAPITAL WOOD,
INDUSTRIES, PORT ROAD, P.O.AZHIKODE, KANNUR
DISTRICT, AZHIKODE NORTH AMSOM, DESOM,
KANNUR TALUK, KANNUR DISTRICT, PIN- 670 009.
BY ADVS.
SRI.K.N.ABHILASH
SRI.SUNIL NAIR PALAKKAT
RESPONDENT/APPELLANT/PETITIONER:
T.SHAMSUDHEEN,
AGED 47 YEARS, S/O.ABDULLA, EMPLOYED ABROAD,
SHAMS, ADOOR P.O., KADACHIRA, KANNUR
DISTRICT, PIN - 670 621, REP. BY HIS POWER
OF ATTORNEY HOLDER, T.RASHEED, AGED 47
YEARS, S/O.ABDULLA, THUNDIYIL HOUSE,
CHEMBILODE AMSOM, KOYYOD DESOM, KANNUR
DISTRICT, PIN - 670 613.
R1 BY ADV. SRI.R.PARTHASARATHY
R1 BY ADV. SRI.RAJESH V.NAIR
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 2-03-2020, ALONG WITH RCRev Nos.145/2019,
148/2019, 149/2019, 155/2019, 158/2019, 159/2019, &
160/2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RCRev..No.145/2019 & connected cases
9
JUDGMENT
These revision petitions are filed challenging the common judgment dated 31.8.2018 of the Rent Control Appellate Authority (in short "Appellate Authority"), Thalassery in RCA Nos. 57, 58, 59, 60, 65, 66, 67 and 68 all of the year 2014.
2. The revision petitioner was the appellant in RCA Nos.57, 58, 59 and 60 of 2014 and the respondent in these revision petitions was the appellant in RCA Nos.65, 66, 67 and 68 of 2014. The parties are for the sake of convenience, referred to as per their litigate status in the Rent Control Petitions (RCPs) as 'petitioner' and 'respondent'.
3. The petitioner had filed the R.C.P Nos.12, 14, 16 and 18 all of the year 2010 before the Rent Control Court, Kannur against the respondent, seeking an order of eviction under Sections 11(3), RCRev..No.145/2019 & connected cases 10 11(4)(ii) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control), Act, 1965 (hereinafter referred to as 'Act').
4. It was the common case of the petitioner in the above rent control petitions ( in short 'RCPs) shorn of exhaustive pleadings, that he is the owner of the shop rooms bearing door Nos.IV/597, IV/599, IV/596 and IV/598 of Azhikode Panchayat. The shop rooms are scheduled as petition scheduled buildings in each of the RCPs (for brevity hereinafter referred to as 'shop rooms'). The petitioner had leased out to the respondent the shop room bearing No.IV/597 by agreement dated 1.3.1990 for a monthly rent of Rs.300/-, the shop room No.IV/599 by agreement dated 1.3.1992 for a monthly rent of Rs.200/-, the shop room bearing No.IV/596 by agreement dated 1.2.1988 for a monthly rent of Rs.1000/- and the shop room No.IV/598 by agreement dated 1.5.1991 for a RCRev..No.145/2019 & connected cases 11 monthly rent of Rs.300/-. The respondent took the shop rooms on rent to start a wood industry. The petitioner's son Shameel Shamsudeen is a qualified Civil Engineer. He is dependent on the petitioner. The petitioner bona fide needs the shop rooms for his son to start a consulting centre, who has also completed Autocad course. The shop rooms are situated in an old building. Due to the installation of machineries by the respondent, the shop rooms are damaged. There are cracks on the wall due to improper and incessant use of machineries and it may fall down at any time. The value of the shop rooms have substantially diminished due to the willful acts of the respondent. Unless the shop rooms are reconstructed, the same may fall down at any time. Therefore, the shop rooms need reconstruction. The petitioner does not have other vacant shop room in his possession. The petitioner is financially RCRev..No.145/2019 & connected cases 12 sound to reconstruct the shop rooms. There are vacant shop rooms in the locality, for the respondent to shift his business. Although the petitioner sent a lawyer notice on 6.5.2009, demanding vacant possession of the shop rooms, the respondent sent a reply raising all false contentions. Hence the RCP.
5. The respondent filed separate counter statements in all the RCPs. It was his common case in the counter statements, inter alia, that the bona fide need projected by the petitioner is only a ruse for eviction. He admitted the landlord-tenant relationship in respect of the four shop rooms, and admitted the execution of the four agreements. He denied that the petitioner's son bona fide needs the shop rooms to start a business. He also denied the assertions that the shop rooms were damaged; that it may fall down at any time and that the walls are damaged. He further denied the allegation that RCRev..No.145/2019 & connected cases 13 the petitioner has no other vacant building in his possession, and that there are other rooms available in the locality. According to him, the petitioner's son is well employed in Bangalore and is self sufficient. The sole intention of the petitioner in seeking eviction of the respondent from the shop rooms is to persuade him to pay higher rent. It is the habit of the petitioner to file unnecessary petitions. The respondent has been running the business for over 20 years in the shop rooms. There are no other available buildings in the locality for him to shift his business. He has installed costly machineries, tools, equipments and transformers in the shop rooms, which cannot be easily dismantled and shifted. Moreover, he would not get NOC from the statutory authorities to commence his business in a new premises. Also he has to obtain a new electricity connection with a capacity of 100 KV., which is beyond his capacity. RCRev..No.145/2019 & connected cases 14 It is only because the petitioner did not carry out the requisite maintenance that the shop rooms have got damaged. The petitioner has not obtained any approved plan/permission from the Panchayat to reconstruct the shop rooms. Hence he sought for dismissal of the RCPs.
6. During the pendency of the RCPs, the petitioner sought leave of the Rent Control Court and got Section 11 (4) (i) of the Act corrected as Section 11(4) (iv) of the Act.
7. The respondent filed additional counter statement to the above RCPs. The respondent contended that the shop rooms do not require any sort of reconstruction, and that the petitioner will not get a building permit to reconstruct the shop rooms as they are situated on the bank of a river. The shop rooms can be used in its present position.
8. The respondent again sought leave of the RCRev..No.145/2019 & connected cases 15 Rent Control Court and got the block numbers of the shop room corrected in the RCPs as 'IV' instead of 'III'. The same was also opposed by the respondent, who filed additional counter statements.
9. The petitioner's son was examined as PW1 and Exts.A1 to A10 were marked through him. The respondent was examined as RW1 and Exts.B1 to B5 were marked through him. The Advocate Commissioner was examined as RW2 and Exts.C1 to C3 were marked through her. Ext.X1 was summoned and marked as third party exhibit.
10. The Rent Control Court after evaluating the pleadings and evidence on record, partly allowed the RCPs by passing a common order of eviction against the respondent under Sections 11(4)(iv) of the Act. The petitioner's prayer for order of eviction under Sections 11 (3) and 11 (4)
(ii) of the Act was disallowed.
RCRev..No.145/2019 & connected cases 16
11. Aggrieved by the impugned common order passed by the Rent Control Court dismissing the petitioner's prayer under Sections 11(3) and 11(4) (ii) of the Act, the petitioner filed RCA Nos 65, 66, 67 and 68 of 2014. Likewise, aggrieved by the common order passed by the Rent Control Court allowing the petitioner's prayer under Section 11(4) (iv) of the Act, the respondent filed RCA Nos.57, 58, 59 and 60 of 2014.
12. The Appellate Authority consolidated the hearing of the eight RCAs and by its common judgment dated 31.8.2018 allowed the RCAs filed by the petitioner and dismissed the RCAs filed by the respondent. The Appellate Authority by the impugned judgment ordered eviction of the respondent from the shop rooms under Section 11 (3) and 11 (4) (ii) of the Act. The Appellate Authority set aside the order of eviction passed under Section 11(4) (iv) of the Act, in view of the RCRev..No.145/2019 & connected cases 17 decision of this Court in Abdul Rahiman v. Hameed Hassan [1995 KHC 393) , wherein it has been held that once as an order of eviction is passed under Section 11 (3) Act, there is no legal requirement to pass a further order of eviction under Section 11 (4) (iv) of the Act.
13. It is challenging the common judgment passed by the Appellate Authority in the above numbered RCAs that these Rent Control Revisions are filed.
14. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent
15. The learned counsel for the revision petitioner argued that the courts below have gone wrong in ordering eviction of the revision petitioner from the shop rooms under Sections 11(3) and 11 (4) (ii) of the Act. According to the learned counsel, the petitioner had not produced any RCRev..No.145/2019 & connected cases 18 material before the Rent Control Court as well as the Appellate Authority to substantiate that his son is dependent on him. Similarly, the petitioner's son was not a qualified Engineer, on the date of filing the RCPs. Further more, the petition is hit by the first proviso to Section 11(3) of the Act, and that the respondent is entitled to the benefit under the second proviso of Section 11 (3) of the Act. He also argued that the petitioner had not produced any document to substantiate that he has obtained an approved plan from the statutory authority, to reconstruct the shop rooms. Ext.X1 plan has lapsed. There is absolutely no reason assigned by the Appellate Authority in the impugned judgment ordering eviction of the respondent under Sections 11 (3) and 11 (4) (ii) of the Act. He thus prayed that the revision petitions be allowed and the impugned common judgment be set aside.
16. The learned counsel for the respondent on RCRev..No.145/2019 & connected cases 19 the other hand argued that the Appellate Authority has rightly evaluated the pleadings and evidence and has arrived at the legitimate conclusion that the petitioner is entitled for an order of eviction under Sections 11 (3) and 11 (4) (ii) of the Act. The oral testimony of PW1 empathetically proves that he is dependent on the petitioner. The commission reports and plan marked as Exts.C1 and C3 and the testimony of RW2 substantiate that the respondent has damaged the shop rooms by using heavy machineries which corroborates with the case put forth by the petitioner. He supported the common judgment and sought for the dismissal of the rent control revisions.
17. The common question that emerges for consideration in these revision petitions is whether there is any illegality, irregularity or impropriety in the common judgment passed by the Appellate Authority in ordering eviction of the respondent RCRev..No.145/2019 & connected cases 20 under Sections 11 (3) and 11 (4) (ii) of the Act.
18. It is trite law that this Court while exercising its revisional jurisdiction under Section 20 of the Act is not expected to re-appreciate the entire pleadings and evidence on record. This Court is only supposed to examine the legality of the impugned judgment and order. Keeping in mind the above legal parameters, we have gone through the pleadings and evidence on record.
19. The cardinal contention of the learned counsel for the revision petitioner was that Ext.A9 document shows that the petitioner's son (PW2) had only completed his course in Engineering in the year 2009. The RCPs were filed on the assertion that the petitioner's son is a qualified Engineer, and that he requires the shop rooms for his bona fide need to start a consultancy service. Although the petitioner's son had completed his course in 2009, he passed his examinations only in RCRev..No.145/2019 & connected cases 21 the year 2012. Therefore, there is suppression of material facts in the RCPs, and that the petitioner had approached the Rent Control Court with unclean hands. The petitioner had issued Ext.A2 notice in 2009 and filed the RCPs in the year 2010 stating that his son is a qualified Engineer, but Ext.A9 proves that the petitioner's son passed his Engineering from the Kochi University in the year 2012.
20. We have analysed the said contention at depth. It is an undisputed fact that the petitioner's son was pursuing his Engineering course. He completed his course in 2009. Though he appeared for examination, he did not pass in his first attempt. Subsequently in the year 2012, he passed the examination and secured his graduation. It is only to be assumed that the petitioner was under the legitimate expectation that his son would pass the course in the normal course period. Merely RCRev..No.145/2019 & connected cases 22 because the petitioner's son did not pass at the first attempt, it cannot be said that the petitioner had deliberately suppressed the fact, to gain undue advantage. The pertinent fact is that the petitioner's son has ultimately passed his Engineering before the final decision was taken in the RCPS. The petitioner's son has also passed a course in Autocad, which makes him competent to start a consultancy service.
21. It is settled by the Hon'ble Supreme Court in Deep Chandra Juneja v Lajwanti Kathuria [AIR 2008 SC 3095] that the courts while examining the bona fide need projected by the landlord, has only a limited jurisdiction in assessing whether the need put forward by the landlord is genuine or not, and that the need projected is not a ruse for eviction.
22. The Supreme Court has further held in Sarla Ahuja vs United India Insurance Company Ltd [(1998) 8 SCC 119] that when a landlord RCRev..No.145/2019 & connected cases 23 asserts that he requires the building for his own occupation, the rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied, the landlord establishes a prima facie case. It is open to the rent controller to draw a presumption that the requirement of the landlord is bona fide.
23. It was also held in Sait Nagee Purushothaman and Co. Ltd v. Vimalabhai Prabhulai [2005 KHC 1495] , it is held that it is for the landlord to decide whether the space is sufficient for his need. Tenant cannot have a dictatorial role in that assessment of the landlord
24. In view of the evidence of PW1 and Ext.A9 certificate, we have no doubt in our mind that the need projected by the petitioner, that PW2, his son wants to start a consultancy service in the shop rooms cannot be disbelieved. The Appellate Court RCRev..No.145/2019 & connected cases 24 has rightly evaluated the pleadings and evidence and arrived at the irresistible conclusion that the petitioner is entitled to an order of eviction under Section 11(3) of the Act. We do not find any reason to interfere with the finding of the Appellate Authority in this regard. In view of the finding of the Appellate Authority ordering eviction under Section 11 (3) of the Act, there is no necessity to pass an order of eviction under Section 11 (4) (iv) of the Act , in view of the decision of this Court in Abdul Rahiman's case (supra) and Ponnam Krishnan v. Bharathan [2013 (2) KLT 450]. Therefore, we concur with the finding of the Appellate Authority on the above point.
25. The next question that arises for consideration is whether the petition is hit by the 1st proviso to Section 11 (3) of the Act. The respondent does not have a case that the petitioner is in possession of other shop rooms RCRev..No.145/2019 & connected cases 25 other than the one that he has sought for eviction to start a consultancy service for his son. His son has deposed that he requires 2000 sq.ft to start the business. As the respondent has not proved that the petitioner has any other vacant buildings in his possession, the RCPs are not hit by the 1 st proviso to Section 11 (3) of the Act.
26. With respect to the second proviso, the Advocate Commissioner has clearly found that there are other vacant shop rooms available in the locality. The respondent has not proved that he is eking his livelihood from the income generated from his business. He has not produced any document to substantiate his income. In the said circumstances, the respondent is not entitled to the benefit under the second proviso to Section 11 (3) of the Act.
27. Coming to the next contention raised by the learned counsel for the revision petitioner that RCRev..No.145/2019 & connected cases 26 that the plan that was submitted by the petitioner was not sanctioned by the Panchayat authority. At the time of trial, Ext.X1 was summoned and marked in evidence. According to the learned counsel for the respondent, Ext.X1 shows that the validity of the plan was initially for a period of three years. It is rudimentary that the plan can be renewed. Hence we do not find any force in the submission.
28. Coming to the last question whether the respondent has has damaged the shop rooms and reduced its utility and value. The Advocate Commissioner in Exts.C1 to C3 reports and plan has clearly found that the shop rooms are in a severely damaged state. Though the respondent took a contention that the shop rooms were in the damaged stage because of its old age, the same is not appealing to us in view of the evidence of RW2 and ExtsC1 to C3 report, which stands corroborated by the evidence of PW1 and the RCRev..No.145/2019 & connected cases 27 pleadings.
29. It was found by the Advocate Commissioner in Ext.C1 to C3 that the pillars are standing without any roof; that one of the pillars are in a bend position; that the wooden frames of the doors are in a ruined position, that there is a big hole on the eastern side of the wall and that all the rafters are in a ruined position etc. The Advocate Commissioner has categorically reported that the value of the shop rooms has been considerably diminished affecting its utility. It is with the above materials that the courts below arrived at a conclusion that the respondent has diminished the value of the shop rooms The shop rooms are in a damaged stage. Hence, an order of eviction was passed under Section 11(4)(ii) of the Act. We affirm the said finding.
30. In the totality of the facts and circumstances of the case, pleadings and evidence RCRev..No.145/2019 & connected cases 28 on record, we have no doubt in our mind that the Appellate Authority has rightly ordered eviction of the respondent under Secs.11(3) and 11(4)(ii) of the Act. We confirm the findings of the the Appellate Authority in the impugned common judgment.
31. At the said point of time, the learned counsel for the revision petitioner prayed for one year's time to vacate the shop rooms. Taking into consideration the fact that the RCPs were filed in the year 2010, and the RCAs were filed in the year 2014 and it is nearly a decade since the petitioner has been trying to the evict the respondent from the shop rooms we feel that the revision petitioner has got more than sufficient time to vacate the shop rooms.
32. However, considering the fact that the revision petitioner is running an industry in the shop rooms and that there are finished products RCRev..No.145/2019 & connected cases 29 in the shop rooms, we deem it appropriate to grant the revision petitioner seven months' time to vacate the shop room on the following conditions.
(1) The revision petitioner/tenant 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 seven months from today.
(2) The revision petitioner/tenant 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 landlord will be at liberty to proceed with the execution of the eviction order.
RCRev..No.145/2019 & connected cases 30 In the result, these revision petitions are accordingly dismissed.
Sd/-K.HARILAL, JUDGE ma/05/03/2020 Sd/-C.S.DIAS, JUDGE /True copy/ P.S to Judge