IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 97 of 2008()
1. C.M.SADICK, S/O. LATE C.M.MOHAMED
... Petitioner
2. SALES & DISTRIBUTION
Vs
1. A.A. SHAHID, AGED 50 YEARS
... Respondent
2. C.M. ISMAIL, S/O.LATE C.M.MOHAMMED
3. C.M.SALAM, S/O.LATE C.M.MOHAMMED
4. MRS. AMINA SIDHICK
5. MRS. SELMA SHERIF, D/O.LATE C.M.MOHAMMED
For Petitioner :SMT.R.RANJINI
For Respondent :SRI.N.M.MOHAMMED AYUB
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :25/06/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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R.C.R.No.97 of 2008
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Dated this the 25th day of June, 2008.
O R D E R
Ramachandran Nair, J.
This revision petition is filed by the petitioners herein who are tenants
in R.C.P.No.172/2003 which was filed by the first respondent, the landlord
of the building. The landlord sought eviction of the building under Sections
11(3) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act,
1965 (for short ‘the Act’). The Rent Control Court ordered eviction on the
ground urged under Section 11(3) and disallowed eviction under Section 11
(4)(iii) of the Act. The same has been confirmed in appeal by the
Appellate Authority.
2. The whole dispute lies in a narrow compass. The landlord sought
eviction for starting a wholesale business of fruits in the petition schedule
building. The building was originally let out to one late Shri Muhammed,
on whose death the tenancy devolved on the respondents in the Rent
Control Petition. The petitioners herein alone contested the proceedings
and the others remained ex-parte. Admittedly, they are doing the business
of glasswares and the rent payable is Rs.400/- per month. The petitioners
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herein mainly contended that they are conducting business in the building as
a partnership and actually the ground pleaded by the landlord is only a ruse
for eviction. It was mainly pleaded that the proposed business is not
feasible in the building as no road traffic is allowed in Jews Street where the
building is situated and it was further pleaded that the landlord is having
another building in his possession for conducting the business.
3. The evidence consists of oral testimony of P.Ws.1 and 2 and
Exts.A1 and A2 were marked on the side of the landlord. The petitioners
herein examined R.Ws.1 and 2 and produced Exts.B1 to B22. Ext.C1 is the
Commission report.
4. The Rent Control Court overruled all the objections raised by the
tenants on a detailed analysis of the evidence before it. It was found that the
bonafide need urged by the landlord is a genuine one, that the objection
pointed out by the tenants that wholesale business is not feasible in the
building is not correct and that the landlord is not in possession of other
rooms for conduct of business. It was also found that the petitioners herein
are not entitled for the benefit of the second proviso to Section 11(3) of the
Act. The Appellate Authority concurred with the above findings.
5. Heard the learned counsel for the petitioners Mrs. Ranjini and the
learned counsel for the respondents Shri S. Sreekumar.
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6. Learned counsel for the petitioners submitted that the authorities
below have not properly considered an important point as regards the
availability of suitable buildings for the landlord to conduct business. In
fact, this is the main point argued by the learned counsel for the petitioners.
Learned counsel submitted that going by the first proviso to Section 11(3)
of the Act, if the landlord is in possession of another building of his own,
special reasons ought to have been pointed out and in the absence of the
same, the authorities cannot give any direction to the tenants to vacate the
building. It is pointed out that going by Ext.B6 settlement deed of 1971,
the landlord was having five buildings and in the absence of any evidence to
the contra, it should be presumed that he is in possession of some of them,
except the buildings he had sold, and therefore as no special reasons have
been pointed out, the petition ought to have been dismissed. The learned
counsel for the first respondent landlord submitted that the said argument
has no merit in the light of the pleadings and evidence in this case.
7. Before going to the crux of the argument raised by the learned
counsel for the petitioners, we may refer to the pleadings raised by the
petitioners before the Rent Control Court, to appreciate the said argument.
In paragraph 5 of the objection filed by the petitioners herein, the crucial
averment as regards this aspect is that “the petitioner is one of the biggest
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landlords in the city owning number of buildings and he can conduct the
proposed business in any one of the building owned by him. Many rooms
in the petitioner’s building are lying vacant”. But the petitioners have not
pointed out any particular room or building which is lying vacant for the
landlord to do business.
8. The landlord was examined as P.W.1. In the proof affidavit he has
denied the averment contained in the objection filed by the tenant that there
are vacant rooms in his possession and stated that no other buildings are in
his possession. In the cross examination, he stated that he was having two
rooms, one in the Jews Street and another in Broadway which have been
sold to the tenants who were occupying the same. The building in Jews
Street was sold 5 to 8 years back and the room in Broadway was sold just
before the filing of the Rent Control Petition. But negotiations were there
for the conveyance of the building long prior to that and the said building
was also sold to the tenant who was occupying the same. The said
building had to be sold for meeting the medical expenses of his wife. The
suggestions put to him regarding availability of buildings in the shopping
complex owned by the family was also denied by him. Thus, it is clear, on a
reading of the deposition of P.W.1, that the petitioners had not put any
suggestion regarding the availability of rooms by relying upon Ext.B6.
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9. The first petitioner was examined as R.W.1. Ext.B6 was marked
in evidence to plead that two of the rooms referred to therein are remaining
vacant. Learned counsel for the petitioners vehemently argued that the
tenants have discharged their burden by pointing out two vacant rooms and
as the landlord has not adduced any contra evidence, the unchallenged
evidence thus adduced by the tenant is crucial as far as the issue regarding
availability of vacant rooms in the possession of the landlord is concerned,
for the purpose of the first proviso to Section 11(3) of the Act and therefore
the eviction petition can only be dismissed. It is contended that going by
Ext.B6, the landlord was allotted five buildings/room and even if he had
sold two of them, it should be presumed that the remaining buildings are
with him and lying vacant.
10. We may at once notice that no attempt was made by the
petitioners to take out a commission in support of the plea that the landlord
is having vacant rooms in his possession, that too within the town itself. No
explanation is offered for not adducing any further evidence on this aspect.
As noticed earlier, when the landlord was cross examined, no particular
suggestion was made as regards these two rooms with the landlord. It is
only after the evidence on the part of the landlord was concluded, that the
tenant has come up with Ext.B6. In the objections filed in the Rent Control
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Petition also, there was no such case as regards vacant possession by the
landlord of any particular building. Therefore, the argument now raised
before this court by relying upon Ext.B6, has to be assessed in the above
factual situation.
11. That the landlord has denied having possession of any other
rooms within the town is clear from his own proof affidavit. He had denied
in his cross examination various suggestions made to him especially in
respect of the rooms he was owning in Jews Street and Broadway as well as
in the shopping complex, viz. Kockers Complex. Thus, the landlord has
clearly discharged his burden of showing that he was not having any
building remaining vacant at the time of filing of the Rent Control Petition.
Apart from the mere assertion in the deposition by the tenant, no particular
effort was made to show that any building is remaining vacant for
immediate occupation of the landlord. Even when examined as R.W.1, the
tenant has not pointed out any particular building with building number, etc.
to support the plea that they are remaining vacant and in the possession of
the landlord. Thus, we are of the view that the tenant has miserably failed
to establish and prove the said contention by any cogent and reliable
evidence. Therefore, the argument raised by the learned counsel for the
petitioners by relying upon Ext.B6 settlement deed cannot hold good. The
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landlord has categorically denied possession of any vacant rooms and read
with other materials it will be evident that the faint plea raised by the tenant
has no legal support.
12. In fact, a reading of the order passed by the Rent Control Court
will show that the above aspect was considered in paragraph 9 of the order.
It was clearly found that no satisfactory evidence was adduced to show that
vacant rooms are remaining in the building in Chittoor Road. It was also
found that going by the decision of this court in Asher v. Hassankutty
Hajee (2004 (2) KLT 446), the co-ownership over a building will not
disentitle a landlord under the first proviso, to claim eviction under Section
11(3) of the Act. After referring to the other suggestions put to the landlord,
the Rent Control Court has made reference to Ext.B6 and relied upon the
deposition of P.W.1 that presently there is no building in his name except
the petition schedule room, to reject the contention raised by the tenant.
Thus, this is a matter which was considered by the Rent Control Court also
with reference to the evidence adduced before it. In fact, it was observed by
the Rent Control Court that the landlord was not confronted with Ext.B6
document by the tenant while he was cross examined.
13. These aspects have been considered by the Appellate Authority
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in paragraphs 13 and 14 of the judgment. The Appellate Authority found
that no evidence is forthcoming to show that the landlord is in possession of
any other building in the same city, town or village, so as to start the
proposed business.
14. Thus, the conclusion is irresistible that the tenant has miserably
failed to prove the elements to discharge the burden that the landlord is
having in his possession of other vacant building in the same city, town or
village for his occupation. Therefore, the spacious plea raised before us by
the learned counsel for the petitioners has only to be rejected and we do so.
15. As we have already noticed, the authorities below have
concurrently found in favour of the landlord on the bonafide need pleaded.
On the evidence the said conclusions are justified. We find that the
authorities below have considered the evidence and appreciated the same in
the right perspective and the view taken is a plausible one also.
For all these reasons, we dismiss the revision petition.
At this stage, the learned counsel for the petitioners sought for some
time to vacate the premises. We grant six months time from today to the
petitioner to vacate the premises on condition that he files an undertaking in
the form of an affidavit before the Rent Control Court undertaking to vacate
the premises unconditionally on or before the expiry of six months from
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today and also to pay the arrears of rent, if any, due and continue to pay the
monthly rent till the premises are vacated. The affidavit shall be filed
within three weeks from today. The petitioners shall deposit the entire
arrears of rent, if any, within the aforesaid period of three weeks and shall
continue to pay an amount equivalent to the rent payable, towards
compensation for use and occupation, till possession is surrendered. If any
of the conditions aforesaid is violated, then the order of eviction will
become enforceable at once.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/