Dismissed

Thalakkal Ayisha v. Bindhu Jayaprakasan

Kerala HC7 Nov 2022RCRev./147/2021

Case brief

AI extract

What is this about?

The High Court allowed the tenant's appeal and dismissed the landlord's revision petition under the Kerala Rent Act. The Court held that the tenant proved her business is her main source of income and no suitable buildings exist locally, entitling her to eviction protection. The alleged lack of bona fides was not substantiated.

What did the court decide?

Revision petition dismissed. Rent Control Appellate Authority dismissed order affirmed.

Thalakkal Ayisha Vs Bindhu Jayaprakasan — Landlord and Tenant | Kerala HC (2022)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE MRS.JUSTICE SHOBA ANNAMMA EAPEN

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MONDAY, THE 7^TH DAY OF NOVEMBER 2022/16TH KARTHIKA, 1944

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RCREV. NO. 147 OF 2021

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AGAINST THE JUDGMENT IN R.C.A.NO.60/2020 OF ADDITIONAL

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DISTRICT & SESSIONS COURT, VATAKARA

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R.C.P.NO.56/2018 OF MUNSIFF COURT, VATAKARA

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REVISION PETITIONERS/APPELLANTS/PETITIONERS:

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1 THALAKKAL AYISHA, AGED 62 YEARS, D/O.HASSANAR, THALAKKAL HOUSE, AZHIYUR AMSOM DESOM, AZHIYUR P.O., VATAKARA TALUK, KOZHIKODE DISTRICT.

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2 FIROS, AGED 44 YEARS, S/O.AYISHA, THALAKKAL HOUSE, AZHIYUR AMSOM DESOM, AZHIYUR P.O., VATAKARA TALUK, KOZHIKODE DISTRICT.

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BY ADV T.M.ABDUL LATHEEF

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RESPONDENT:

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BINDHU JAYAPRAKASAN, AGED 49 YEARS, D/O.KARUNAKARAN, RESIDING AT VALIYA PARAMBATH HOUSE, AZHIYUR AMSOM DESOM, AZHIYUR P.O., VATAKARA TALUK, KOZHIKODE, PIN-673 309.

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BY ADVS. U.K.DEVIDAS K.K.ANILRAJ

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19.10.2022, THE COURT ON 07.11.2022 DELIVERED THE FOLLOWING:

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R.C.R.No.147/2021 2

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A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. -----------------------------------------------R.C.R.No.147 of 2021

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-----------------------------------------------Dated this the 7^th day of November, 2022

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ORDER

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A.Muhamed Mustaque, J.

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This Rent Control Revision was filed by the

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landlord. The landlord approached the Rent Controller for eviction of the tenant on the

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ground of a bona fide requirement of one of the landlords, namely, Firos. The original landlord

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died. His widow and son filed the eviction

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petition. Admittedly, there are other legal

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heirs of the original landlord, who were not arrayed in the party array. However, both the courts concurrently found that the petition for

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eviction is maintainable at the instance of few

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owners. The Rent Controller found that the claim

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for eviction under Section 11(3) of the Kerala

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Buildings (Lease and Rent Control) Act, 1965 (for

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R.C.R.No.147/2021 3

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short, the 'Act') on the ground of bona fide need is allowable but dismissed the Rent Control Petition as the landlord failed to establish the identity of the building from which the tenant was sought to be evicted. In the appeal filed by the landlord, the Appellate Authority reversed the finding on the identity of the building. However, the Appellate Authority found that the landlord is not entitled to eviction under

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Section 11(3) of the Act. This is how the landlord approached this Court in the Rent Control Revision.

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Heard the learned counsel for both sides.

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We perused the records and orders in the

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proceedings before the Rent Control Court,

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wherein PW1 and RW1 were examined. Exts.A1 to A5, B1 to B33 and C1 were marked as evidence

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before the Rent Control Court.

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footwear business in the petition schedule shop.

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R.C.R.No.147/2021 4

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There was an earlier Rent Control Petition

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against the tenant on similar grounds for eviction for occupation by another owner namely, Faizal. That petition was dismissed noting that

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the landlord was in possession of another suitable building. The appeal filed by the landlord was also dismissed as not pressed. This was in the year 2009.

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The Appellate Court found that the need projected is not a bona fide need. Firstly, the finding was that Firos, whose need was projected was found to have another business namely, 'Food Palace and Restaurant' in the same locality. This was not disclosed by Firos in the petition for eviction. Firos denied having any such business. The appellate court relied on the admission of Firos to the effect that the display board carries his mobile number.

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According to Firos, the shop is being run by his

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friend and he gave his number to the friend for

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R.C.R.No.147/2021 5

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use. It is to be noted that the tenant had not

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produced other documents to show that this business is being run by Firos. It is easy for

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the tenant to produce a licence or any other document to prove that the business is being run

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by Firos. The Appellate Court could not have

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relied on the mobile number of the landlord, on the display board of the restaurant to hold that the landlord is having another business. If Firos was having such business and it was not disclosed

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in the petition for eviction, same would be fatal, however, same have to be proved with best evidence. The Appellate Court, according to us, placed reliance on irrelevant materials to hold that the business is being run by Firos.

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The next reason assigned by the Appellate

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Authority was that an adjacent room fell vacant pending a Rent Control Petition. According to the landlord, the tenant surrendered the building to

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one of the co-owners, namely, Hashim. It is

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R.C.R.No.147/2021 6

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explained by the landlord that Hashim requires

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the building for his own occupation. It is submitted that Hashim started a business of a

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provision store in the building, pending

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proceedings. If it was true, the Appellate Court could not have doubted the bona fide need of the

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landlord. The tenant produced a letter purportedly written by Hashim and marked as Ext.B25. In Ext.B25 it is stated that Hashim and other co-owners are not interested in evicting the tenant. The landlord disputed the signature in the letter marked as Ext.B25. The landlord also filed an application to summon Hashim. However, it is seen that the Rent Controller dismissed the application finding that the evidence of Hashim is not relevant to adjudicate the matter under Section 11(3) of the Act. The Appellate Authority, overlooking this order, observed that it was easier for the landlord to

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examine Hashim and in the absence of non-

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R.C.R.No.147/2021 7

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examination of Hashim, the Appellate Authority took the view that the adjacent room fell vacant and that it is subsequently alleged to be in the occupation of Hashim, is not acceptable. In the appellate stage, the landlord again filed the application to receive additional documents. These additional documents are the licence obtained by Hashim, in respect of the aforesaid room. The Appellate Authority refused to receive additional documents for no reason. Admittedly,

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these documents came into existence subsequent to the proceedings. The attempt of the landlord was

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also to prove subsequent events. In these circumstances, the Appellate Court could not have denied the opportunity of the landlord to explain the subsequent event pointed out by the tenant. The Rent Controller also denied that opportunity. The licence produced by Hashim being a public document, we find no reason to decline the document on record, as part of the evidence.

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R.C.R.No.147/2021 8

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Accordingly, we are of the view that those documents would form part of the record and can be admitted in evidence. Firos while examining,

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had stated that the room that fell vacant and

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occupied by Hashim is not suitable for him. The Appellate Authority observed that if it was not suitable for Firos, he cannot contend that it is suitable for Hashim. We are unable to accept the reasoning of the Rent Control Appellate Authority. The need and requirement would depend

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upon the proposed business of the person who intends to start such business. It is not for the tenant to dictate, how the landlord should choose his requirement.

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Yet another reason pointed out by the

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Appellate Authority is regarding the room vacated by the owner of Rahath Hotel. The Advocate Commissioner pointed out that no evidence was found in the hotel to show that the

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hotel business is being run. The Advocate

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R.C.R.No.147/2021 9

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commissioner also found fruit business in the front yard of the said hotel. The Appellate Authority, therefore, came to the conclusion that the building originally occupied by Rahath Hotel is vacant and manipulations have been done on the day of visit of the Advocate Commissioner to make it appear as the fruit business is run there. It is to be noted that the tenant had not taken any steps to examine the owner of Rahath Hotel to prove it was vacant. No other documents were produced to show that this room was lying vacant. If the occupier of the building is not conducting any business, that cannot lead to the presumption that vacant possession of the building has been handed over to the landlord.

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The Appellate Authority was of the view

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that the petition for eviction was filed with mala fide intention. There were complaints at the instance of the tenant for not providing a toilet facility in the building. It is seen that in the

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R.C.R.No.147/2021 10

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year 2019 such complaints were raised. It is to be noted that the Rent Control Petition was filed in the year 2018. It is also seen that the tenant raised a police complaint for harassment, in the year 2008. We note that these complaints have no proximity with the eviction petition filed. The complaint before the local authority was after the filing of the Rent Control Petition and the complaint of harassment was a decade ago. We find, in these circumstances, the findings rendered by the Appellate Authority to hold that the petition lacks bona fides, are on placing reliance on irrelevant factors.

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The next question is whether the tenant is entitled for protection under 2^nd proviso to

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Section 11(3) of the Act. It is trite law that

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the tenant has to prove both the limbs of the proviso under Section 11(3) of the Act. The

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tenant has to prove that the income derived from the business run is the main source of her income

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and there are no buildings available in the

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locality for the business. According to the tenant, she is conducting a fancy store and the income derived from the business is her main

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source of income. The Rent Controller found that the tenant has not produced any document to show her income from the business. The Advocate Commissioner appointed in the matter reported that there are no suitable buildings in the locality.

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The landlord has no case that the tenant

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has other income other than from the business being run in the petition schedule building. According to the tenant, her aged parents, husband and other family members are depending on her. She produced a passbook to show the loan obtained to run the business. She also produced a licence issued from the Panchayat to show that

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she is conducting the business. The Rent Controller found that she has not produced

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accounts, ledger, etc. to substantiate her claim.

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The Appellate Authority noted that in the business run in the country side, no one would maintain such records and the documents produced by her are sufficient to hold that the income from the building is the main income for her livelihood. We also note from the evidence that the income derived from the business is her only livelihood. Both the Appellate Authority and the Rent Controller found that there are no suitable buildings in the locality. This was based on the report of the Advocate Commissioner. In such circumstances, we are of the view that the tenant is entitled to the 2nd proviso to Section 11(3) of the Act and she cannot be evicted on the bona fide need of the landlord. We also concur with

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the finding of the Appellate Authority that there cannot be any dispute regarding the identity of the building inasmuch as the tenant has no case that she is not a tenant under the landlord and

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there exists no landlord-tenant relationship.

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In the light of the discussions as above, affirming the dismissal of the petition for eviction for the reasons stated above, we dismiss this Rent Control Revision. No order as to costs.

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Sd/A.MUHAMED MUSTAQUE JUDGE Sd/SHOBA ANNAMMA EAPEN JUDGE

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Thalakkal Ayisha v. Bindhu Jayaprakasan

Case brief

What is this about?

What did the court decide?

Thalakkal Ayisha v. Bindhu Jayaprakasan

Case brief

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