Partly allowed

Kakkuzhiyil Basheer v. C.K.Gopinathan

Kerala HC20 Feb 2019RCRev./51/2018

Case brief

AI extract

What is this about?

Eviction was sought for the landlord's wife's textile business and because the tenant possessed another suitable building. The Court upheld rejection of bona fide need but ordered eviction under Section 11(4)(iii), finding the tenant's other building sufficient for his furniture business. The revision was partly allowed.

What did the court decide?

Eviction ordered under Section 11(4)(iii), with conditional time to vacate; rejection of eviction under Section 11(3) left undisturbed.

Kakkuzhiyil Basheer Vs C.K.Gopinathan — 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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WEDNESDAY, THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940

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RCRev..No. 51 of 2018

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AGAINST THE JUDGMENT DATED 14-12-2017 IN RCA 2/2016 of THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), TIRUR

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AGAINST THE JUDGMENT DATED 20-11-2015 IN RCP 15/2014 of THE RENT CONTROL COURT, TIRUR

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PETITIONER/ RESPONDENT/ PETITIONER :

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KAKKUZHIYIL BASHEER,

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AGED 51 YEARS, S/O.AHAMED KUTTY, THRIKKANDIYOOR AMSOM DESOM,TIRUR TALUK, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, K BAVA,AGED 49 YEARS, S/O.AHAMED KUTTY, KAKKUZHIYIL HOUSE, THRIKKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT.

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BY ADVS. SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY

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RESPONDENT/ APPELLANT/ RESPONDENT :

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C.K.GOPINATHAN, AGED 62 YEARS, C.K.G. SUPERMARKET, GURUVAYOOR ROAD, KOTTANAD P.O., PIN - 689 615, PALAKKAD DISTRICT.

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BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.VINOD.S.PILLAI

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON 20.02.2019 PASSED THE FOLLOWING :

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RCRev..No. 51 of 2018

ORDER

Annie John, J.

The petitioner herein is the respondent/ landlord and the respondent herein is the appellant/ tenant in RCA.No.2/2016 before the Rent Control Appellate Authority (Additional District Judge) Tirur. The above Rent Control Appeal was filed challenging the order dated 20.11.2015 of the Rent Control Court, Tirur in RCP.No.15/2014. The Rent Control Petition was filed by the petitioner seeking eviction under Section 11(3) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [Hereinafter referred to as,'the Act']. The trial court rightly allowed the petition on both grounds. The appeal was filed by the respondent challenging

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the above judgment. The lower appellate court

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without properly appreciating the fact and circumstances of the case and without properly appreciating the deposition of the landlord, and against all legal position settled, allowed the Rent Control Appeal on both grounds. Highly aggrieved by the judgment of the Rent Control Appellate Authority, the landlord has preferred this appeal before this Court. The revision petitioner has filed RCP under Section 11(3) and 11(4)(iii) of the Act to evict the appellant from the petition schedule shop room. The Rent Control Court after trial has allowed the application in favour of the petitioner/ landlord. Highly aggrieved by the order of the Rent Control Court, the tenant has preferred the Rent Control Appellate Authority and after considering the facts and evidence elaborately by the Rent Control

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Appellate Authority allowed the appeal preferred by the tenant. Now the landlord has come before this Court with a revision stating that the finding entered by the appellate court is without any justification. So, the interference of this Court is highly required.

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The learned counsel for the respondent

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has argued that the first proviso to Section 11(3) of

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the Act is applicable against the petitioner since so many rooms are in the possession of the petitioner, suitable for the proposed business. But the revision petitioner has objected the arguments of the learned counsel for the respondent. The learned counsel for the revision petitioner has submitted that the revision petitioner has established a special reason as contemplated under the first proviso to Section 11(3) of the Act. According to the learned

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counsel for the petitioner, the burden is not upon the landlord to establish that he is having possession of other rooms as has held in Bhargai Amma v KP.Ajayakumar (2016(1)KHC 347)

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wherein this Court has held that “it cannot be understood from the first proviso to S.11(3) of the Act that the landlords need to plead the particulars of all the premises under their ownership and possession to claim an order of eviction. The proviso only recites that the Rent Control Court shall not order eviction, if the landlord has another building of his own in his possession, without satisfying the special reasons for not occupying the vacant premises. The scope of the first proviso to S.11(3) of the Act, in the circumstances, is to be understood in the context of the provision in S.11(3) of the Act. S.11(3) of the Act is enacted so

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as to seek eviction of the tenant from the building for own occupation of the landlord. So, as per S.11(3) of the Act, it gives authority on the Rent Control Court to pass an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his occupation and the proviso carves out an exception to the authority of the Rent Control Court to order eviction, when the landlord has another building of his own in his possession and there are no special reasons for not occupying the same for the proposed need.

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A combined reading of the provision and the proviso to Section 11(3) of the Act would indicate beyond doubt that only when it is established that the landlord has another building of his own in his possession for his occupation for the

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proposed need, he need to satisfy the Rent Control Court the special reasons for not occupying the said premises.

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The bona fide need under Section 11(3) of the Act is analysed by this Court in Swastik Swastik Sweet House and Others [2017(2)

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KHC 951] and held as follows :-

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20. A plain reading of the provision of sub-section (3) of S.11 shows that it enables a landlord to seek possession of the building from his tenant by making an application to the Rent Control Court, if he bona fide needs the buildings for his own occupation or for the occupation by a member of his family dependant on him. The sub-section takes note of not only bona fide need of the landlord but also the need of the members of his family dependant on him. Where the landlord bona fide needs the building, not for his own occupation, but for occupation of a member of his family, the landlord is required to plead and substantiate three ingredients. Firstly, a person for whose need the premises is required is a member of the landlord's family.

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Secondly, such member of the family is dependent on the landlord and thirdly, there is bona fide need. In the absence of any of the three ingredients, the petition by a landlord under S.11(3) of the Act would fail. The mandate of the first and the second provisos is directed to the Rent Control Court. The first proviso directs 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, for special reasons, in any particular case, that it will be just and proper to do so, it has to record the special reasons. The legislative mandate contained in the second proviso is not to 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. If the need projected is that of the dependant, the same also will have to satisfy the test of being bona fide.

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The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire. Further, such requirement must be bona fide which is intended to avoid a mere whim or desire. The "bona

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fide requirement" must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The Judge of facts should place himself in the arm chair of the landlord and ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant would be enough to persuade the Court to deny its judicial assistance to the landlord.”

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As per the evidence of the petitioner, it

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has come out that there is no other rooms in his possession suitable for the proposed business of his wife. The Advocate Commissioner, who was deputed to visit the premises proved that the rooms in the building of the petitioner are occupied by the

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tenants. Moreover the petitioner contended that

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the petition schedule room is facing the main road and it is suitable for the proposed textile business of his wife. The respondent has not produced any document to substantiate that the factum of evidence adduced by the petitioner that now suitable building is available with the petitioner to start the proposed textile business. Since the petitioner has pleaded and proved through the commission report that no other rooms are available in his possession suitable for the proposed business. Thus, the special reason factor of the first proviso of Section 11(3) of the Act cannot apply against the petitioner. So, the findings entered by the Appellate Court as well as the Rent Control Court to this fact cannot be interfered with.

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The learned counsel for the petitioner

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has submitted that he bona fide requires the petition schedule shop room for starting a textile

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business for his wife.

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Per contra, the respondent contended

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that the revision petitioner is a millionaire and he has stated in the petition that he wanted to start textile business for his wife as he is unable to meet

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expense of his family. The respondent's counsel pointed out the contentions in paragraph 3 of the petition and admission of the petitioner as PW1 in the cross examination to support the argument that

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the petitioner does not require the petition schedule shop room as he is a millionaire and the intention of

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the petitioner is only to evict the respondent from the petition schedule. The learned counsel for the revision petitioner has successfully proved that the

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wife of the petitioner has bona fide need to start the textile business in the petition schedule shop room. The tenant has no right to dictate what business is to be done by the petitioner's wife and also argued that even if there are other business in the petition schedule shop room, it is not a criteria to deny the bona fide need of the petitioner and his wife. The main challenge of the respondent is against the findings of the court below with respect to the bona fide need claimed in the petition. The appellate court has taken a reversed finding to the effect that the eviction sought by the petitioner is under a ruse for eviction of the respondent from the petition schedule building. The petitioner required the petition schedule shop room for his wife, who intends to start a textile business and that the petition schedule shop room is very suitable for the

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proposed business. The revision petitioner has

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succeeded in proving that his wife is depending upon him and he intends to start the proposed business in the petition schedule building for her. It is also proved that the petition schedule shop room is bona fidely required for the purpose of starting the business for his wife.

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In cross examination, PW1 admitted

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that he has spent 30 years at abroad and there are documents to establish his income. He is maintaining NRE account in Canara bank and another bank account in State Bank of India for the purpose of management of his building. His monthly income is 5,000/- Dirham and according to him he would get nearly Rs.80,000/-. He has also admitted that there are 18 rooms in his building 'Naseem Complex' and all the rooms are

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rented out. Out of it, he is getting monthly income of Rs.1,50,000/-and he is an income tax payee

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also. According to PW1, he is getting Rs.2,30,000/as monthly income. During cross examination, PW1 has stated that the income of Rs.2,30,000/- is not sufficient for a month. So, his wife intends to start business in the petition schedule shop room. Over and above, he has four children, out of them, three children are student and younger child is two years old. Apart from that he employed a Manager for collecting rent from his building and he has landed properties also. As per his evidence, two textile shops are functioning in the same building in Naseem complex and opposite of the building, there is another textile shop, Krishna Fabrics. It is an admitted fact that the tenant/ respondent is running sales of Godrej company products and the

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tenant's building is on the side of Krishna fabrics and also admitted that the building of the tenant is a godown.

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The main attack of the respondent is that the petitioner is having sufficient means to pull on his family as he is getting merely Rs.2,30,000/per month by way of salary and rent from the building. It is true that the petitioner's family consists of wife and four minor children. The petitioner also admitted that he has landed property in different locations. The trial court has relied on the evidence of PW1 that there was no balance in his salary and that his courier company was closed in the year 2008. Accordingly the relief sought under Section 11(3) of the Act was allowed. The trial court has held that the present income of the petitioner is insufficient to meet the requirement of

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the family of the petitioner.

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The trial court has also relied on the ruling held in Abdul Rub v. Jobby Tharian [2003 (3) KLT 733] wherein this Court has found that the petitioner need not be a impecunious landlord to file eviction petition for a bona fide need. The learned counsel for the respondent/ tenant also agreed the dictum laid down by the this Court in the said judgment. But the facts and circumstance of the present case and the facts involved in the aforesaid judgment are different. It is settled law that the landlord has other source of income and

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his bona fide need for the rented premise cannot be denied for that reason alone. The peculiarity of this

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case is that the petitioner is getting nearly Rs.2,30,000/- by way of his income. There are five members in his family so that he can spend

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Rs.55,000/- per month for each member of his family. So the version of the PW1 that such a huge amount is not sufficient to maintain his family cannot be accepted. He has also appointed a

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person to manage his building and to collect rent from the building. Admittedly he is having 18 rooms in the building and all those rooms were let out . According to the Rent Control Appellate Authority, the grounds as sought for eviction of the respondent/ tenant and the bona fide need stated in the petition is found to be doubtful.

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It was contended by the revision

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petitioner that there are more than one textile business in the same building adjacent to the petition schedule shop rooms and the wife of the petitioner has no experience in the textile business. But the functioning of two textile rooms in a

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building is not a doubtful circumstances against the bona fide need of the revision petitioner.

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It has held in Raghavan v Kelappan

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[2006(1)KLT 1FB] that the dependency factor for eviction of a rented premise for bona fide need of a family member cannot be limited to the financial dependency alone.

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On the strength of the argument

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advanced by the respondent's counsel, the dependency factor of the wife of the petitioner was rejected by the Rent Control Appellate Authority. It has also held that lack of previous experience of the wife of the petitioner in textile business raised by the respondent against the claim of the petitioner also unsustainable. It has also held that lack of experience of the person in a particular area of business or profession is not a ground to deny bona

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fide need to start a business. There is no condition that the landlord is an experienced person in the proposed business to seek eviction of the

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respondent.

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In order to establish the bona fide

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requirement, the petitioner has to satisfy the court that the given facts need to occupy the premises is natural, real, sincere and honest. The failure on the

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part of the petitioner/ landlord to substantiate the pleaded need dis-entitle him to get eviction.

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Here in this case, the revision petitioner has admitted that he is getting Rs. 2,30,000/- per month by way of income as salary

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and his family consists of only wife and four children. He has also appointed a Manager to collect income from the building consists of 18

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rooms. Since the petitioner admitted that he is in a

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millionaire status, the very foundation of the bona fide need claimed by the petitioner cannot be real one and this fact would definitely draw an inference that the petitioner is merely attempting to get rid of the respondent from the petition schedule shop room. Accordingly, the Rent Control Appellate Authority has held that the need as projected by the petitioner is not a genuine one. The respondent counsel also argued that the petitioner has failed to plead and prove the sole dependency of the income from the petition schedule shop room and nonavailability of alternative accommodation suitable for shifting his business. As far as considering this point, there is no challenge from the respondent against the findings of the court below relating to the application of the 2^nd proviso to Section 11(3) of the Act. It has also held that there is absolutely no

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evidence to prove that the tenant is fully depending upon the income from the rented premises and no suitable alternative accommodation is available in the locality. It has also held by the appellate authority that the question of 2^nd proviso will arise only after proving the bona fide need by the petitioner. On the finding as stated above, the Appellate Authority has set aside the finding under Section 11(3) of the Act.

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We do not find any ground to interfere with the order of the Rent Control Appellate Authority with regard to the finding entered under Section 11(3) of the Act.

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The next question is whether the finding entered by the appellate authority under Section 11(4)(iii) of the Act is justifiable or not. Admittedly the respondent is running retail business

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of Godrej furniture in the petition schedule shop room. The said shop room is facing the TirurMalappuram main road but the building in possession of the respondent situates behind another building and it is a godown to keep the sales goods of the petitioner. According to the respondent, there is no sufficient passage to the building in the possession of the respondent. So it is not suitable to shift the business from the petition schedule shop room.

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The respondent has stuck on

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the commission report, which is marked as Exts.C3 and C4. The commissioner has clearly reported that there is sufficient entrance to the building in the possession of the respondent and it situate just opposite of the petition schedule shop room.

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Hence, the petitioner has satisfactorily proved that the respondent is in possession of a huge building just opposite to the petition schedule shop room, which is suitable for the furniture business of the respondent. The court below has held that the respondent is having huge building in his possession. Accordingly he applied Section 11(4) (iii) of the Act and ordered the respondent/ tenant to evict from the petition schedule shop room.

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Section 11(4)(iii) of the Act reads

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thus :-

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“if the tenant has in his possession a building or subsequently acquires possession of or puts up a building, reasonable sufficient for his requirement in the same city, town or village the landlord is entitled for eviction of the tenant”.

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When the revision petitioner/landlord

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proves that the respondent/ tenant is in possession of another building which meet his requirement, definitely the petitioner/ landlord can seek eviction of the tenant from the rented premises. The landlord has to prove that the building in the possession of the tenant is suitable for starting the business of the tenant. It is settled law that the revision petitioner/ landlord has initiated burden of proof that tenant has another building, which is reasonably sufficient for his requirement. The petitioner has to prove that the respondent is in possession of the building suitable for the business running in the petition schedule shop room. In order to establish the fact that an Advocate Commissioner was appointed on behalf of the

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petitioner/ landlord and he filed a report and plan, which were marked as Exts.C1 to C4. Ext.C1 is the commission report. As per the commission report, she inspected the site on 04.09.2014 at 3.30 p.m. She has noted the plaint schedule property as well as the building in the possession of the tenant. She has prepared a sketch wherein the plaint schedule property is marked as 'A, B, C, D'. She has also noted that the respondent/ tenant business is located on the top of the main building named as 'Godrej Interio C.K.G. Agency'. In the 4^th paragraph, she has stated that about 10 meter away from the plaint schedule property, there is a two storied building, and the respondent/tenant building is situated therein. That portion is marked in the sketch as 'G, H, I'. There is no doubt that this building belongs to the respondent/ tenant and she

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has noted that there are two rooms in the ground floor and on the first floor, there is one room with shutter and all the rooms were filled with Godrej Almirah, chair box etc. She has also noted two bathrooms on the first floor. Further, she has reported that there are more parking area other than the petition schedule property and there is a pathway having 20 feet width from the entrance and that pathway mainly leads to the building belongs to the respondent/ tenant. A compound wall is also constructed around the building belongs to the respondent/ tenant. Ext.C2 is the plan prepared by the commissioner. Ext.C3 is another report filed by the same commissioner. Ext.C4 is a plan attached with Ext.C3 commission report wherein she has located the building belongs to the respondent/ tenant, which is situated on the

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eastern side of the Tirur-Malappuram road. The Krishna Fabric Textiles is situated just in front of the building belongs to the respondent and it has got access to Tirur-Malappuram road. She has inspected the building in the possession of the respondent/ tenant. According to her, it is an 'L' shaped building and there are pillars on the top of the building also and that building is completely using as a godown of the Godrej. She has also noted that the entire rooms are filled with Godrej alimrahs and chair box. In paragraph 6 of Ext.C3, she has reported that the building of the respondent is situated on the back side of the Krishna Fabric Textiles. Further, she has stated that "മ�പട� ക�ട�ടത�ന ഹരജ� പട�� എടപ � റ�ക�ക�ൾ പ�ർക�ങ�

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സ��ര��ളത�യ! മ�പട� ക�ട�ടത�മ"ക� പമ$ശ�കനത�ന�� ഏ�മ*ശ! 18 അട� $,ത � �ൽ ഉള ഒര Entrance ഉ! പര�മശ�ധന സ��! ��ണകപട". That

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entrance is specifically noted in Ext.C4 plan as

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“xxxx” and the space between the entrance and up to the Tirur-Malappuram is having 6 feet width and the building marked as 'E, F, G, H, I' is situated about 55 feet away from the entrance and this entrance is exclusively belonging to the building of the respondent/ tenant. So, it is proved by the petitioner/ landlord by producing Exts.C1 to C4 commission report that the respondent/ tenant is having in possession of building more suitable than the petition schedule room, which has got about the pathway having 18 feet width and the building is a two storied building and more pillars were erected on the top of the building also. It is proved that all ingredients under Section 11(4)(iii) of the Act is established by the petitioner/ landlord for getting eviction of the respondent/ tenant.

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The fact came up from the report and

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sketch of the Advocate Commissioner that the building is in possession of the respondent is opposite to the petition schedule shop room. The Commissioner also reported that the building under the ownership of the respondent/ tenant is a godown and there is no sufficient entrance comparing the petition schedule shop room. It has also reported that the petition schedule shop room is facing to the main road but the building in the possession of the respondent is not facing the main road. The respondent has proved that he is running a retail business of furniture in the petition schedule shop room.

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On the strength of the commission report and the evidence adduced by the

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respondent/ tenant, the trial court has held that the building in the possession of the respondent/ tenant is sufficient to occupy the same. Accordingly the trial court allowed the prayer under Section 11(4) (iii) of the Act. It is true that in this case, the revision petitioner/ landlord succeeded in proving that the respondent/ tenant is occupying another room in his possession, then the burden shift upon the respondent/ tenant to establish that the building in his possession is not reasonably sufficient for his requirement. The Rent Control Appellate Authority has relied on the commission report and the argument advanced by the respondent/ tenant found that the building in the possession of the respondent is not sufficient to meet his requirement for retail sale of the Godrej furniture running in the petition schedule shop

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room and the Appellate Authority has held that the revision petitioner/ landlord is not entitled to get an eviction by invoking Section 11(4)(iii) of the Act also. The finding entered by the trial court was set aside by the Appellate Court.

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We have already held that no

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interference is required under Section 11(3) of the

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Act. In this case, the definite case of the revision petitioner/ landlord is that the respondent has got a huge building on the opposite side of the petition schedule shop room so that he can occupy the same for conducting the Godrej furniture business. It is true that the building in the possession of the tenant is not facing the main road but it has got a suitable pathway so as to reach the road. The commissioner has also reported that 18 feet width

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pathway is required for taking vehicle to the

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building in the possession of the respondent. But, only 6 feet meter pathway is only required to

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satisfy the ingredients as contemplated under Section 11(4)(iii) of the Act. As per the commission report, the pathway pointed out is more than sufficient to reach the petition schedule building. In fact Section 11(4)(iii) of the Act would state that if the tenant is in possession of the building in the same locality, the landlord can seek eviction on these grounds.

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In this case, it is proved beyond doubt that the respondent/ tenant is having big building just opposite to the petition schedule shop room where he is running the Godrej furniture business. We find that the Rent Control Appellate Authority has not deeply considered the issue raised by the revision petitioner and the respondent. The report

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of the commissioner is more than sufficient to prove that the building in possession of the respondent/ tenant is more than sufficient to start a business like Godrej furniture. Therefore, we are inclined to interfere with the finding entered by the Rent Control Appellate Authority with regard to Section 11(4)(iii) of the Act.

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So, the appeal is partly allowed. The finding entered by the Rent Control Appellate Authority under Section 11(3) of the Act is confirmed. Secondly the finding entered under Section 11(4)(iii) of the Act is hereby set aside and the respondent/ tenant is directed to vacate the premises within six months.

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The learned counsel for the respondent/ tenant prayed for sometime to vacate the tenanted premises. Having regard to the submission at Bar,

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the respondent/ tenant is given three months' time from today to vacate the tenanted premises on the following conditions :-

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The respondent/ 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 six months from the date of receipt of a copy of this order.

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The respondent/ 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.

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In the event of failure to comply with any of the conditions stated above, the

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time granted to vacate the premises will stand automatically vacated and the petitioner/ landlord will be at liberty to proceed with the execution of the eviction 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

Kakkuzhiyil Basheer v. C.K.Gopinathan

Case brief

What is this about?

What did the court decide?

Kakkuzhiyil Basheer v. C.K.Gopinathan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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