Dismissed

K. Haridasan v. Mansoor Ahammed K.P.

Kerala HC4 Feb 2019RCRev./129/2018

Case brief

AI extract

What is this about?

The High Court dismissed the revision petition. The landlord proved bona fide need to occupy the shop as a Chartered Accountant. The tenant failed to prove lack of alternative rooms or dependency on shop income for livelihood. Eviction order was affirmed with a seven-month vacating period.

What did the court decide?

Revision petition dismissed; revision petitioner given seven months to vacate premises subject to payment of arrears.

K. Haridasan Vs Mansoor Ahammed K.P. — Landlord and Tenant | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY, THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940

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RCRev..No. 129 of 2018

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AGAINST THE JUDGMENT IN RCA 247/2016 of THE RENT CONTROL APPELLATE AUTHORITY/ 1ST ADDL. DISTRICT COURT, KOZHIKODE DATED 27-07-2017

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AGAINST THE ORDER IN RCP 65/2015 of RENT CONTROL COURT/ ADDITIONAL MUNSIFF COURT, KOZHIKODE-II DATED 30-06-2016

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REVISION PETITIONER/ APPELLANT/ COUNTER PETITIONER :

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K. HARIDASAN, S/O. CHOYIKUTTY, AGED 59 YEARS, TOPMAN TAILORING, FP IV/584, FEROKE HOSPITAL COMPLEX, FEROKE P.O., FEROKE AMSOM, NELLUR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 631.

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BY ADV. SRI.R.RANJITH (MANJERI)

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RESPONDENT/ RESPONDENT/ PETITIONER :

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MANSOOR AHAMMED K.P., S/O. ABDULLA K.P., AGED 33 YEARS, AHAMMED MANZIL, KARUVANTHIRUTHI, FEROKE AMSOM, NALLUR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 631.

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :

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RCRev..No. 129 of 2018

ORDER

Annie John,J.

The revision petitioner is the respondent in RCP

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No. 65 of 2015 of the Rent Control Court, Kozhikode. The respondent herein is the landlord who filed the aforesaid RCP seeking an order of eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). The Rent Control Court, as per order dated 30.06.2016, directed the revision petitioner/tenant to put the respondent in vacant possession of the petition schedule shop room within one

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month and rejected the prayer under Section 11(2)(b) of the Act. Aggrieved by the same, the revision petitioner approached the Rent Control Appellate Authority,

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RCRev..No. 129 of 2018

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Kozhikode by filing RCA No. 247 of 2016, which was also dismissed as per the judgment dated 27.07.2017. Hence this revision.

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On the side of the respondent/landlord, he

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himself was examined as PW1 and Exts. A1 to A4 were

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marked. On the side of the revision petitioner, RW1 was

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examined and Exts.B1 to B4 were marked. The

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Commission Report was marked as Ext.C1.

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The case of the respondent/landlord is that

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he needs the petition schedule building to set up an office

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for accounting and auditing. He has also stated that he has completed Chartered Accountancy and practised as a

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junior in an office at Manjeri and the revision petitioner

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has disputed the same. PW1, while he was in box,

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deposed that he has no job at present; but the revision

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RCRev..No. 129 of 2018

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petitioner/tenant has taken a strong contention that the petitioner is working abroad. But, no evidence was adduced by the revision petitioner/tenant to the effect that the respondent is employed at abroad.

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The RCP was filed under Sections 11(2)(b)

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and 11(3) of the Act and the same was allowed under Section 11(3) of the Act while refusing eviction under

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Section 11 (2)(b) of the Act.

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The case of the respondent/ landlord is

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that the petition schedule shop room originally belonged to K.P.Abdulla, the father of the petitioner. On the death of Abdulla, his right in the proprty devolved upon the petitioner, his mother Fathimakutty, brothers Muhammad

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Nissar and Abdul Gafoor, and sister Jameela. The petition is filed after getting consent of all the landlords.

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RCRev..No. 129 of 2018

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In fact, the revision petitioner has obtained the petition schedule property from Abdulla as per Kachit dated 16.01.2015. The agreed rent was Rs.1,000/- and he kept the rent in arrears since December, 2011. On 23.01.2015, the petitioner issued a notice to the respondent demanding the arrears of rent. Though the notice was delivered on the revision petitioner, he neither sent a reply nor paid the arrears. The respondent is a Chartered Accountant by profession. He bona fide needs the petition schedule shop room for setting up his business. The petitioner has no other source of income. Suitable rooms are available in the locality to shift the business, which being conducted in the petition schedule shop room. Over and above, the revision petitioner has acquired other suitable building of his own. The revision

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RCRev..No. 129 of 2018

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petitioner is also not depending upon the income derived from the business being conducted in the petition schedule shop room for his livelihood.

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Per contra, the revision petitioner has raised a contention that this petition is not maintainable. It was admitted by the revision petitioner that the petition schedule shop room was obtained on lease by him from K.P.Abdulla, the father of the respondent as per Kachit dated 16.01.2015. Even prior to that, he was in possession of the shop room as a tenant. On 22.03.2014, another Kachit was executed by this respondent agreeing to pay monthly rent @Rs.1,000/-. On the basis of the instruction from Abdulla, an account

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was opened in his name at Karuvanthuruthi Service Cooperative Bank and the rent was being deposited in the

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RCRev..No. 129 of 2018

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said account. There is no rent in arrears as claimed by the petitioner. According to him, the respondent's claim for getting the petition schedule shop room on bona fide need is not correct. If at all the respondent is in need of a shop room, vacant rooms are there in his possession

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and the intention of the respondent is only to lease out the building to others on higher rent. According to the revision petitioner, he is conducting a shop in the name and style 'Top Man'. He is mainly depending upon the income from the business for his livelihood. He has no other source of income. No suitable buildings are available in the near locality to shift the business. After evaluating the evidence, the court below has disallowed the prayer for eviction under Section 11(2)(b) of the Act.

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Now the case of the respondent/ landlord

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RCRev..No. 129 of 2018

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is that he needs the petition schedule shop room for

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setting up an office to do the profession of accounting and auditing. He would say that he has completed chartered accountancy and practised as a junior in the office of K.Muralidharan & Company at Manjeri. According to the revision petitioner, the respondent is employed

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abroad and he has no intention to start an office.

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In order to establish this fact, the revision

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petitioner has filed an application to the court below for directing the respondent to produce his Passport. Pursuant to the same, the passport was produced before the court. This would support the case of the respondent that he is not employed abroad as alleged by the tenant. Again he has filed an application to produce the passport. A counter statement was filed by the

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RCRev..No. 129 of 2018

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respondent wherein it is stated that at present, the

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respondent is abroad. Even if the respondent/ landlord is abroad, that will not be sufficient to deny the bona fide requirement sought by the respondent/ landlord. It is a well settled fact that a landlord is not expected to wait until final orders is passed in a rent control proceedings and in the appeal thereof. So, going abroad by the respondent cannot be taken advantage by the revision petitioner to canvass his argument that the respondent has no intention to start an office in the country. The landlord was examined as PW1 and he is a chartered accountant. He was only 32 years old and his intention is only start an office to earn his livelihood. The revision petitioner has not adduced any evidence to prove that the bona fide requirement sought by the respondent is

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RCRev..No. 129 of 2018

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without any bona fide. So, the trial court as well as the appellate court has concluded that the bona fide requirement as sought by the respondent is found to be correct.

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Then the revision petitioner is bound to

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prove the first and 2nd proviso to Section 11(3) of the Act.

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The revision petitioner has no case that there are suitable rooms available in the possession of the respondent/ landlord. The respondent disputed the contention raised by the revision petitioner. But when the PW1 was in the

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box, he has admitted that there are two rooms belonging to him situated in the 2nd floor of the building in which the petition schedule shop room is situated and he has stated that out of that two rooms, one room is in the possession

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of a tenant named Vijayan, an electrician, who is

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RCRev..No. 129 of 2018

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conducting a shop therein. But he could not reflect the

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name of other tenant, who occupied other room for which he has stated that the room was leased out by his father. Further, he has given evidence to the effect that even if the other said rooms are lying vacant, it is not suitable for the need of the respondent and moreover, the said rooms are situated in the 2nd floor of the building. So it is not convenient for the customers to approach him. The petition schedule shop room is situated in the first floor of the entire building. So, even if any rooms are available in the 2nd floor of the building, according to PW1 that rooms are not sufficient for occupation by him and it is not sufficient ground to refuse the prayer for eviction of the room situated on the first floor. Further it is well settled

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fact of law that it is the prerogative of the landlord to

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choose the building for his occupation. Even if the revision petitioner has stated that the respondent is in possession of other vacant rooms, he has not produced any document to substantiate the same. So, the evidence adduced by PW1 that he is not in possession of the vacant rooms is found to be correct.

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Now the question to be considered is

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whether the revision petitioner is entitled to get benefit of

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the 2nd proviso to Section 11(3) of the Act. He has stated that he is mainly depending upon the income derived from the business being conducted in the petition schedule shop room for his livelihood and no suitable buildings are available in the locality to shift his business.

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The respondent/ landlord has denied the contention raised by the revision petitioner. Admittedly, the revision

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RCRev..No. 129 of 2018

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petitioner is running a tailoring shop in the petition schedule shop room. During cross examination, the revision petitioner admitted that there are documents with him to show the income he is getting from the petition schedule shop room. But, he has not produced any of the documents to substantiate this fact. He has only adduced oral evidence to prove that he is mainly depending upon the income which derives from the business being conducted in the petition schedule shop room. In the absence of any documentary evidence, it is difficult to believe the version that he is fully depending upon the income which derives from the petition schedule building.

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The revision petitioner has not adduced any

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evidence to prove that suitable shop rooms

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RCRev..No. 129 of 2018

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are not available in the locality to shift his business. On the other hand, the respondent/ landlord has adduced evidence to the effect that there are several shop rooms lying vacant in the locality. During cross examination a specific question was put to RW1 in these aspect. But he has answered that he did not conduct any enquiry regarding the availability of the vacant shop rooms in the locality. No doubt that burden is always upon the revision petitioner to prove the ingredients for getting the benefits of the proviso to Section 11(3) of the Act. But he has failed to produce any evidence to that aspect. So, according to us, the revision petitioner is not entitled to get the benefits as contemplated under the first and 2nd proviso to Section 11(3) of the Act.

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Considering the evidence and the arguments on

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RCRev..No. 129 of 2018

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either side, we find that there is no ground to interfere with the findings entered by the trial court with regard to the findings under Section 11(3) of the Act. The revision petitioner has also failed to prove the provisions under the second proviso to Section 11(3) of the Act. Hence, we are not inclined to interfere with the findings of the Rent Control Court as well as the Rent Control Appellate Authority. Accordingly, this RCR is dismissed.

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However, the learned counsel for the revision

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petitioner seeks time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given seven months' time from today to vacate the tenanted premises on the following conditions:

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The revision petitioner shall pay the entire

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RCRev..No. 129 of 2018

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arrears of rent, if any, within a period of one month from the date of receipt of a copy of this order.

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The revision petitioner shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of seven months from today.

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The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy of this order.

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In the case of failure, the time granted to vacate

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the premises will stand automatically cancelled and the respondent is entitled to enforce the order.

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Sd/-

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K. HARILAL, JUDGE.

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Sd/ANNIE JOHN, JUDGE.

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RKM

K. Haridasan v. Mansoor Ahammed K.P.

Case brief

What is this about?

What did the court decide?

K. Haridasan v. Mansoor Ahammed K.P.

Case brief

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