Kerala High Court
C.K.Rasiya vs P.A.Fathima on 28 July, 2016
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE A.M.BABU
FRIDAY,THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938
RCRev..No. 321 of 2016
AGAINST THE JUDGMENT IN RCA.NO.130/2015 OF THE RENT CONTROL
APPELLATE AUTHORITY, KOZHIKODE DATED 28-07-2016.
AGAINST THE ORDER IN R.C.P.NO.189/2012 OF THE RENT CONTROL COURT,
KOZHIKODE DATED 20-07-2015.
REVISION PETITIONERS:APPELLANTS: RESPONDENTS:
1. C.K.RASIYA, AGED 40 YEARS,
D/O.LATE C.K.USMAN, C.K.HOUSE, KAPPAD P.O.,
CALICUT - 673 304, CHEMANCHERY VILLAGE,
THIRUVANGOOR DESOM, KOYILANDY TALUK.
2. C.K.RAHMATH, AGED 36 YEARS,
D/O.LATE C.K.USMAN, C.K.HOUSE, KAPPAD P.O.,
CALICUT - 673 304, CHEMANCHERY VILLAGE,
THIRUVANGOOR DESOM, KOYILANDY TALUK.
3. C.K.ANSARI, AGED 31 YEARS,
S/O.LATE C.K.USMAN, C.K.HOUSE, KAPPAD P.O.,
CALICUT - 673 304, CHEMANCHERY VILLAGE,
THIRUVANGOOR DESOM, KOYILANDY TALUK.
4. C.K.FAROOQ, AGED 28 YEARS,
S/O.LATE C.K.USMAN, C.K.HOUSE, KAPPAD P.O.,
CALICUT - 673 304, CHEMANCHERY VILLAGE,
THIRUVANGOOR DESOM, KOYILANDY TALUK.
5. C.K.FATHIMA, AGED 26 YEARS,
D/O.LATE C.K.USMAN, C.K.HOUSE, KAPPAD P.O.,
CALICUT - 673 304, CHEMANCHERY VILLAGE,
THIRUVANGOOR DESOM, KOYILANDY TALUK.
6. C.K.SHAHADIYYA, AGED 22 YEARS,
D/O.LATE C.K.USMAN, C.K.HOUSE, KAPPAD P.O.,
CALICUT - 673 304, CHEMANCHERY VILLAGE,
THIRUVANGOOR DESOM, KOYILANDY TALUK.
BY ADVS.SRI.C.M.MOHAMMED IQUABAL
SRI.ANILKUMAR V. (VAZHARAMBIL)
RESPONDENT: RESPONDENT:PETITIONER:
P.A.FATHIMA, AGED 64 YEARS, D/O.K.M.MUHAMMED HAJI,
HOUSE NO.45, JAYANTHI NAGAR, CALICUT - 32,KASABAAMSOM,
KALATHINKUNNU DESOM, KOZHIKODE TALUK - 677 601.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
14-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.T.SANKARAN & A.M.BABU, JJ.
----------------------------------------------------
R.C.R. No.321 of 2016
----------------------------------------------------
Dated this the 14th day of October, 2016
O R D E R
K.T.Sankaran, J.
The respondent filed R.C.P.No.189 of 2012 on the file of the Rent Control Court, Kozhikode against the petitioners under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court allowed the Rent Control Petition by the order dated 20.7.2015. The revision petitioners/tenants filed R.C.A.No.130 of 2015 on the file of the Rent Control Appellate Authority, Kozhikode challenging the order of the Rent Control Court. The Appellate Authority confirmed the order passed by the Rent Control Court under Section 11(3) of the Act. In this Revision, the tenants challenge the concurrent findings of the Rent Control Court and the Appellate Authority.
2. The petition schedule building was taken on rent by the father of the tenants on 15.11.1991, on a monthly rent of `1,000/-. The rent was enhanced on mutual consent and the present rate of R.C.R. No.321 of 2016 :: 2 ::
rent is `2,500/- per month. On the death of the predecessor-in- interest of the revision petitioners, they inherited the tenancy right. The bona fide need put forward by the respondent/landlord is that her son Abdulla and her husband require the petition schedule building for conducting business. Abdulla lost his job abroad and he came back to India. The husband of the landlord is jobless and he wants to aid his son Abdulla to run the business. The son and the husband of the landlord do not have any other business or building in their possession. They are depending on the landlord for the purpose of occupation of the building. The landlord contended that only respondents 4 and 5 are conducting business in the petition schedule building and they do not depend for their livelihood mainly on the income derived from the business conducted in the petition schedule building. The landlord also contended that there are other suitable buildings available in the locality for the occupation of the tenants.
3. The tenants disputed the bona fide need put forward by the landlord. They also contended that they are depending for their livelihood mainly on the income derived from the business R.C.R. No.321 of 2016 :: 3 ::
conducted in the petition schedule building. According to the tenants, there is no other suitable building available in the locality for accommodating their business. The tenants also raised a contention that there was a lease agreement dated 27.4.1997, executed between the landlord and the mother of the tenants for and on behalf of the tenants and that is a perpetual lease. It was, therefore, contended that the Rent Control Petition is not maintainable.
4. Before the Rent Control Court, PW1 and PW2 were examined and Exts.A1 to A6 were marked on the side of the landlord. On the side of the tenants, the third respondent in the RCP was examined as RW1 and Exts.B1 to B10 were marked. A Commissioner was appointed by the Rent Control Court who inspected the property on three occasions. The Commissioner filed Exts.C1, C2 and C3 reports and C1(a) sketch.
5. The Rent Control Court negatived the claim of the tenants that the lease was a perpetual one. It was rightly held by the Rent Control Court that no perpetual lease can be created except by R.C.R. No.321 of 2016 :: 4 ::
registered lease deed. In the present case, there is no such registered lease deed. The Rent Control Court relied on the decision in Cannanore Drug House v. Abdul Azeez (2013 KHC 2518 = 2013 (3) KLJ 204) and the decision of the Division Bench in Aniyan T.V. and another v. T.K.Raveendran (2012 (4) KHC 811 (DB)) in this regard.
6. As regards the genuineness of the bona fide need, the Rent Control Court relied on the evidence of PW1 and PW2. PW1 is the husband of the landlord and PW2 is the son of the landlord. It was held that the evidence of PW1 and PW2 can be relied on and their evidence is not shaken by searching cross examination. The Rent Control Court also took note of the fact that Abdulla, the son of the landlord, has come back to India and his passport (Ext.A5) was cancelled. The Rent Control Court relied on the decisions of the Supreme Court in Deep Chandra Juneja v. Smt.Lajwanti Kathuria (Dead) through L.Rs. (AIR 2008 SC 3095), Siddalingamma v. Mamtha Shenoy (2001 (2) RCR 539) and Sarla Ahuja v. United India Insurance Company Ltd. ((1998) 8 SCC 119). On the basis of the principles laid down by the Supreme Court as to how R.C.R. No.321 of 2016 :: 5 ::
genuineness of the bona fide need is to be ascertained, the Rent Control Court held that the need pleaded by the landlord is bona fide. The contention of the tenants that the landlord, her husband and son are affluent was also considered by the Rent Control Court and it was held that the said contention is irrelevant and that any number of business can be run by a landlord. It is not necessary that the landlord or her family members should lead a penurious life to enable them to aspire for starting a business. It was also held that the tenants failed to prove that the landlord or her husband or son has any other business or they are having any vacant building in their possession. The first proviso to Section 11(3) says that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. It was held that no details of any building was provided by the tenants to show that the landlord or her husband or son owns or possesses any other building suitable for the business. Moreover, RW1 admitted in evidence that he does not know whether PW1 and PW2 have any other building of their own or in their possession. R.C.R. No.321 of 2016
:: 6 ::
Though a belated contention was taken by the tenants that the landlord owns a building at Mahe, no material was produced to prove such case. Even assuming that the landlord has a building at Mahe, that does not satisfy the requirement of the first proviso, since the building in the possession of the landlord should be in the same city, town or village to attract the said proviso. Mahe is a different locality.
7. The tenants pleaded the benefit of the second proviso to Section 11(3) of the Act. The second proviso provides that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. It has been held in a catena of decisions right from 1976 KLT 1 (Kochappan Pillai v. Chellappan) that the burden to prove both the ingredients of the second proviso to Section 11(3) is on the tenant. To claim the benefit of the second proviso, it is not sufficient to prove one limb of the same. The tenant has to prove both the limbs. The R.C.R. No.321 of 2016 :: 7 ::
Rent Control Court considered these aspects in great detail on facts and held that the tenants failed to prove the ingredients of the second proviso. As regards the first limb of the second proviso, the Rent Control Court held that the tenants failed to prove that they are depending for their livelihood mainly on the income derived from the business conducted in the petition schedule building. As regards the second limb of the second proviso to Section 11(3), the Rent Control Court relied on the three reports submitted by the Advocate Commissioner, which would clearly show that when the Commissioner visited the property, enough number of vacant rooms were available in the locality. The details of the same have been shown in the reports and the court below relied on the same. There is no contra evidence to show that no suitable building is available in the locality to accommodate the business of the tenants. The tenants did not examine the Accommodation Controller to prove that aspect as held in 1976 KLT 1.
8. On appeal, the Appellate Authority concurred with the view taken by the Rent Control Court and dismissed the appeal filed by the tenants.
R.C.R. No.321 of 2016
:: 8 ::
9. The findings rendered by the Rent Control Court and the Appellate Authority are findings of fact. It is well settled that normally, a revisional court will not interfere with the findings of fact rendered by the authorities below unless the findings are vitiated by irregularity, illegality or impropriety as laid down in Section 20 of the Act.
10. Accordingly, the Revision fails and it is liable to be dismissed.
11. Lastly, the learned counsel for the tenants submitted that the tenants may be granted one year's time to vacate the petition schedule building. Notice has not been ordered in the Revision. Still, we are of the view that a reasonable time can be granted to the tenants to vacate the building on certain conditions.
There is no merit in the Revision and it is accordingly dismissed. However, the tenants are granted time till 30.4.2017 to vacate the petition schedule building on the following conditions: R.C.R. No.321 of 2016
:: 9 ::
a) The tenants shall file an unconditional undertaking before the Rent Control Court on or before 30.11.2016 undertaking to vacate the petition schedule building on or before 30.4.2017.
b) The tenants shall deposit before the Rent Control Court the entire arrears of rent on or before 30.11.2016 and shall continue to pay the monthly rent on or before 10th of the succeeding months, till they vacate the petition schedule building.
c) If the tenants fail to comply with any of the conditions stipulated hereinabove, they shall lose the benefit of the time granted to vacate as per this order, without any further orders.
d) The execution proceedings shall be kept in abeyance to enable the tenants to comply with the directions in this order.
If the tenants fail to comply with the conditions, the Execution Petition shall be continued and it shall be disposed of in accordance with law.
K. T. Sankaran Judge A.M. Babu Judge ahz/