Kerala High Court
Marutheri Ashraf vs Punnayullathil Thamasikkum Koroth ...
Author: P.N.Ravindran
Bench: P.N.Ravindran, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 4TH DAY OF APRIL 2016/15TH CHAITHRA, 1938
RCRev..No. 78 of 2015 ()
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AGAINST THE ORDER IN RCP 13/2012 of RENT CONTROL COURT.,NADAPURAM DATED 31-
01-2014
AGAINST THE JUDGMENT IN RCA 46/2014 of RENT CONTROL APPELLATE AUTHORITY,
KOZHIKODE DATED 30-09-2014
REVISION PETITIONERS/APPELLANTS/2ND & 3RD RESPONDENTS:
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1. MARUTHERI ASHRAF, AGED 38 YEARS,
S/O.AMMAD, NARIPATTA AMSOM DESOM, CHEEKONNU
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.
2. VATTAKUTTIADI KASIM,
S/O.KUNJABDULLA HAJI, NARIPATTA AMSOM DESOM,
CHEEKONNU DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.
BY ADV. SRI.R.K.MURALEEDHARAN
RESPONDENTS/RESPONDENTS/PETITIONERS & IST RESPONDENT:
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1. PUNNAYULLATHIL THAMASIKKUM KOROTH K.SALIM
S/O.KUNHABDULLA HAJI, IYYAMKODE AMSOM, NADAPURAM
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 673 101.
2. PUNNAYULLATHIL THAMASIKKUM KOROTH K.AZEEZ
S/O.KUNHABDULLA HAJI, IYYAMKODE AMSOM,
NADAPURAM DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT.
3. FAIZAL, 30 YEARS, S/O.KUNHAMMEDE HAJI,
PUTHANPEEDIKAYIL HOUSE, BUSINESS, VELLIYODE AMSOM,
KODIYURA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. * DELETED
*THE NAME OF THE THIRD RESPONDENT IS DELETED FROM THE PARTY
ARRAY AT THE RISK OF THE PETITIONERS VIDE ORDER DATED 14.9.15 IN
IA 2300/15 IN RCA 78/15.
R1 BY ADV. SRI.T.KRISHNANUNNI (SR.)
R1 BY ADV. SMT.MEENA.A.
R1 BY ADV. SRI.VINOD RAVINDRANATH
R12 BY ADV. SRI.SAJU.S.A
R1 BY ADV. SRI.K.C.KIRAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
04-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.
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R.C.R.No.78 of 2015
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Dated this the 4th day of April, 2016
ORDER
P.N.Ravindran, J.
The petitioners are respondents 2 and 3 in R.C.P.No.13 of 2012 on the file of the Rent Control Court, Nadapuram. The first respondent is the petitioner and the second respondent is the first respondent therein. The first respondent herein had in R.C.P.No.13 of 2012 prayed for an order of eviction in respect of the petition schedule building under sections 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as "the Act" for short. The petition schedule building is described as a room bearing door No.N.P.VI/1212 and the room situate behind it. It is not in dispute that the main room initially consisted of two rooms and it was converted into a single room with the removal of the partition wall separating the two rooms. The landlord had in the petition for eviction averred that the tenants have kept the rent at the rate of Rs.3,000/- per mensem in arrears from January 2012, that the tenants who were running a jewellery under the name and style 'Shalimar Jewellery' in the tenanted premises, stopped doing the business in November 2010 R.C.R.No.78 of 2015 -:2:- and since December 2010, no business is being carried on in the petition schedule building. He had further stated that he intends to invest the sum of Rs.3,00,000/- and start a business in grocery in the petition schedule building and that he expects to earn a profit of Rs.20,000/- per mensem.
2. Though notice was served, the first respondent did not enter appearance with the result, he was set exparte. Respondents 2 and 3 who are the petitioners in this revision petition entered appearance and filed a counter statement wherein inter alia they contended that the second respondent is no longer a partner, he having retired from the partnership in the year 2005. It was also admitted that due to differences of opinion among the partners they are not doing business for the past three months. They also denied and disputed the averment in the rent control petition that the landlord bonafide needs the petition schedule building to start a business in grocery. They had in paragraph 3 of the counter statement admitted the title of the landlord as also the landlord/tenant relationship. They also denied the averment that they have kept the rent in arrears.
3. The landlord had along with the rent control petition filed an application for the appointment of an Advocate Commissioner to inspect the petition schedule building. That application was allowed R.C.R.No.78 of 2015 -:3:- and an Advocate Commissioner was appointed. Before the rent control court, the landlord examined himself as PW1 and produced and marked Ext.A1 kychit and Ext.A2 partition deed. The Advocate Commissioner appointed on application filed by the landlord was examined as PW2 and the report submitted by her was marked as Ext.C1. No evidence oral or documentary was adduced on the side of the tenants.
4. The rent control court considered the rival contentions and held that the need put forward is bonafide, that the tenants have ceased to occupy the petition schedule building for more than six months and that they are not entitled to the protection of the second proviso to section 11(3) of the Act. Though such a contention was not raised in the counter statement, before the rent control court the tenants raised a contention to the effect that the landlord has no title to the rear room. The rent control court repelled that contention on the ground that no such plea has been put forward in the counter statement and also on the reasoning that Ext.A2 partition deed does not show that the rear room has been alloted to any other sharer. The rent control court also took note of the fact that the tenants have been paying rent for the entirety of the premises in their occupation to the landlord in the instant rent control petition. An order of eviction under R.C.R.No.78 of 2015 -:4:- sections 11(3) and 11(4)(v) of the Act was accordingly passed on 31.1.2014. Challenging that order, respondents 2 and 3 in the rent control court (the petitioners herein) filed R.C.A. No.46 of 2014 on the file of the Rent Control Appellate Authority, Kozhikode. By judgment delivered on 30.9.2014, the appellate authority concurred with the rent control court and dismissed the appeal. Hence this revision petition.
5. We heard Sri.R.K.Muralidharan, learned counsel appearing for the petitioners and Smt.A.Meena, learned counsel appearing for respondents 1 and 2. The name of the third respondent, who had not entered appearance before the rent control court and also before the appellate authority, was struck off from the party array on application made by the petitioners herein as I.A.No.2300 of 2015 at their risk, by order passed on 14.9.2015. Sri.R.K.Muralidharan, learned counsel appearing for the petitioners contended that the first petitioner before the rent control court who was examined as PW1 has admitted in categorical terms that the rear room has been alloted to the share of Hameed and therefore, the rent control court erred in passing an order of eviction. The learned counsel contended that as the tenants are in possession of a portion of the petition schedule building which even according to the landlord is owned by a person other than the landlord, R.C.R.No.78 of 2015 -:5:- an order of eviction could not have been passed in the instant case. Learned counsel for the petitioners also contended that there was no material before the rent control court to show that the tenants have ceased to occupy the petition schedule building for more than six months and therefore, an order of eviction under section 11(4)(v) of the Act also could not have been passed.
6. Per contra, Smt.A.Meena, learned counsel appearing for respondents 1 and 2 contended that apart from the fact that the tenants had no such case in the counter statement, they had admitted the fact that they are in possession of the petition schedule premises comprising of two rooms converted to a single room and the room situate to its rear as per Ext.A1 kychit, that they had also admitted payment of rent in respect of the rear room as well to the landlord in the instant rent control petition and therefore, as they had admitted the landlord/tenant relationship and the rent control court cannot go into the paramount title of the landlord, no exception can be taken to the impugned order. Learned counsel submitted that as the tenants have admitted the fact that they have ceased to occupy the room three months immediately prior to the institution of the rent control petition, the burden was on them by producing documentary evidence to show that they have transacted business in the petition schedule R.C.R.No.78 of 2015 -:6:- building for more than six months immediately preceding the institution of the rent control petition, that they could have also taken out a commission to inspect the petition schedule building for the purpose of proving the stock-in-trade if any kept therein and that having not been done, no exception can be taken to the impugned order.
7. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The landlord had in the rent control petition positively averred that they had entrusted the petition schedule shop room to the tenants. The said averment was not denied and disputed by the tenants. The rent control petition discloses that the entrustment was of two rooms facing the road and the room to its rear and that later with the permission of the landlord, the partition wall separating the two rooms facing the road was removed and the two rooms were converted into a single room. The rear room is also mentioned in the schedule to the rent control petition. The tenants did not in their counter statement deny or dispute the said averment in the rent control petition or the further averment that it was the predecessor-in-interest of the landlord who had entrusted the petition schedule premises to them. They had not also denied and disputed the R.C.R.No.78 of 2015 -:7:- factum of having attorned to the landlord and having paid rent to him. In such circumstances, merely for the reason that PW1 had in his re- examination deposed that the rear room belongs to Hameed, we are of the opinion that the tenants cannot rely on the said part of the deposition to contend that that the tenancy cannot be split up and an order of eviction passed. The tenants have no case that the rear room was entrusted to them by Hameed. They have no case that they had attorned to Hameed. They have no case that they had paid rent for any portion of the petition schedule building to him. That apart, it is settled law that an admission by itself will not confer title, unless there was pre-existing title. The tenants have not produced any material to show that Hameed had pre-existing title even at the time of institution of the rent control petition. Besides, the tenants have not been able to bring to our notice any recital in Ext.A2 partition deed which would show that the rear room was alloted to the share of Hameed. Such being the situation, we are of the opinion that no reliance can be placed on the statement made by PW1 in his re-examination to non- suit the landlord. The said contention was in our opinion rightly rejected by the rent control appellate authority. As regards the bonafide need also, we find no reason or ground to interfere with the concurrent finding entered by the rent control court and the appellate R.C.R.No.78 of 2015 -:8:- authority. We accordingly uphold the said finding as well.
8. As regards the order of eviction passed under section 11(4)
(v) of the Act also, we are of the opinion that there is no scope for any interference. The tenants had admitted the fact that they had stopped doing jewellery business in the petition schedule building three months immediately prior to the institution of the rent control petition. They did not however take steps to have an Advocate Commissioner appointed to inspect the petition schedule building for the purpose of ascertaining the stock in trade if any kept therein. They did not also produce documents to show that they had transacted business and had filed returns and paid tax under the Kerala Value Added Tax Act, 2005 for the financial year immediately preceding the institution of the rent control petition. As they had admitted the fact that they had stopped doing business in the petition schedule building three months immediately prior to the institution of the rent control petition, the burden was on the tenants to show that they had stopped doing business only three months immediately prior to the institution of the rent control petition and not from December 2011 as stated by the landlord. In the absence of any evidence to show that the tenants were in fact doing any business in the petition schedule building as claimed by them and as Ext.C1 commission report discloses that as on R.C.R.No.78 of 2015 -:9:- the date of the institution of the rent control petition it was lying closed and shutters showed signs of not having been opened for the past several months, we find no reason or justification to interfere with the said finding as well.
We accordingly hold that there is no merit in the instant revision petition. The revision petition fails and is dismissed.
Sd/-
P.N.RAVINDRAN JUDGE Sd/-
K.RAMAKRISHNAN JUDGE /true copy/ P.A. To Judge vpv