IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 172 of 2005()
1. V.C. YOUSUFF, S/O. AHAMMED KUTTY,
... Petitioner
Vs
1. K.P.SAMEER KUMAR, S/O. ACHUTHAN,
... Respondent
For Petitioner :SRI.C.KHALID
For Respondent :SRI.N.NAGARESH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :25/01/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.R. No.172 of 2005
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Dated this the 25th day of January, 2010
O R D E R
—————
Pius C.Kuriakose,J.
Landlord is in appeal. He sought to evict the
respondent tenant on the ground of arrears of rent, and
bonafide need for own occupation. The ground of arrears of
rent does not survive for consideration. The need projected
in the context of sub-section 3 of Section 11 was that the
building is required bonafide for occupation by his son Abdul
Rahoof so that he can start a business in furniture. It was
averred that Sri. Abdul Rahoof is unemployed and is without
any means of livelihood. Bonafides of the claim was disputed
by the respondent who also contended that the Rent Control
Petition is liable to fail by virtue of the first proviso to Section
11(3). It was also contended that the tenant is entitled to the
protection of the second proviso to Section 11(3) and for that
reason also the Rent Control Petition is liable to be dismissed
even if the need is found to be bonafide. Evidence before the
Rent Control Court consisted of Ext.A1 & A2, B1 property tax
assessment register pertaining to building having door
Nos.239 & 240 belonging to the landlord, Ext.X1 and the oral
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evidence of PW1 the landlord, PW2 Abdul Rahoof and PW3
the tenant in occupation of building No.239. On the side of
the tenant his brother was examined as RW1. The Rent
Control Court on evaluating the evidence on record came to
the conclusion that the need was not bonafide. It was also
held on the basis of Ext.B1 that landlord was having vacant
position of two building and therefore Rent Control Petition
was liable to be dismissed. The Rent Control Court however
did not consider the tenant’s eligibility for the protection of
the second proviso to Section 11(3). Ultimately the Rent
Control Court dismissed the RCP. The appellate authority
re-appraised the evidence and concurred with the conclusion
of the Rent Control Court as regards to the bonafide of the
needs and also as regards to the operation of the first proviso
to Section 11(3). That authority, however, on analysing
evidence came to the conclusion that the tenant is not
entitled for second proviso to Section 11(3). However in
view of the earlier findings the appellate authority dismissed
the appeal.
2. In this revision, various grounds are raised
assailing the judgment of the appellate authority and we
have heard submissions of Mr. Sajid, learned counsel for the
appellant and those of Mr.K. Babu, learned counsel for the
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respondent. Mr.Sajid has drawn our attention to the
evidence of PW3 and that of RW1. According to counsel it
was clear from these two depositions that building No.239 is
under occupation of the tenant and that the building No.240
is too small for PW2 to occupy. Findings of the court below
in the context of first proviso to Section 11(3) is highly
improper. Learned counsel submitted that PW1 and PW2
have uniformly stated that the son of PW2 is without any
business of his own and that he needs genuinely to do
business so that he can have his own independent income.
Learned counsel further submitted on the basis of RW1’s
testimony that RW1 confessed that he had no documents to
prove the contention that PW2 was having any interest in the
sawmill business which belongs to his father only. All the
above submissions of the learned counsel were opposed by
Mr.Babu who supported judgment of the appellate authority.
Mr.Babu submitted that PW1 had filed earlier Rent Control
Petition in respect of another room urging the bonafide need
of his daughter. In that case while examined as PW1 he had
stated very clearly that PW2 in the present case is
conducting the sawmill business. In the teeth of such an
admission it was for PW1 and 2 to prove that PW2 is no
longer conducting the sawmill. The learned counsel also
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referred to Ext.B1 and submitted that B1 is a document as
envisaged by Section 26 of Act 2 of 1965. Therefore it is
obligatory on the part of the landlord to have taken out a
commission and have proved that the building having door
No.239 is not vacant and also that building No.240 is
unsuitable for PW2’s purpose. Learned counsel would attack
the findings of the appellate authority that the tenant is not
entitled for protection to second proviso to sub-section 3 of
Section 11.
3. We have very anxiously considered rival
submissions. We do not find any illegality, irregularity or
impropriety in the decision of the authorities below that the
need is not bonafide. Such a decision was entered mainly
relying on the circumstance that PW1 had admitted in
previous case that it is his son PW1 who is conducting
sawmill. PW2 is evidently at least assisting his father. When
the father himself had submitted that PW2 is conducting
sawmill it is for PW1 and 2 to prove by adducing cogent
evidence that PW2 has nothing to do with the sawmill
business. It should be remembered that the need is
projected in such a manner that PW2 is totally unemployed
without any avocation for life. We do not find any illegality
or impropriety warranting interference with the above
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findings of the Appellate Authority which is to the effect that
need is not bonafide since PW2 is not conducting sawmill. At
the same time we are unable to approve the findings of the
Appellate Authority that the Rent Control Petition is liable to
be fail because of the availability of building Nos.239 and
240. As for building No.240 RW1 himself stated that the said
building is not suitable for his purpose in view of the
smallness of its size. It is furniture business that is proposed
to be conducted by PW2. If door No.240 is not suitable for
the purpose of the tenant who is conducting motor winding
business, we have no difficulty to accept argument of
Mr.Sajid that the same cannot be suitable for conducting
furniture also. As for door No.239 we notice that RW1
himself admitted that 6 years prior to Rent Control Petition
the said building was in occupation of a tenant. Under the
above circumstances we are not able to approve the findings
of the first proviso to Section 11(3). We hold that if need is
bonafide, the RCP is not liable to be dismissed in view of the
first proviso to Section 11(3).
4. As for the finding of the Appellate Authority that
the tenant is not entitled to protection of the second proviso
to Section 11(3) we notice that the above finding is only to be
approved in the light of the Full Bench decision of this court
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in Francis v. Sreedevi Varassiar (2003 (2) KLT 230
(F.B) and we approve that finding.
5. The result of the above discussions is that the
Rent Control Revision is liable to be fail. But we notice that
the rent of Rs.280/- which is being paid by the respondent to
the revision petitioner for the petition schedule building
which is situated in an important locality of Kannur Muncipal
Town is very low. Having considered the importance of the
locality we feel that we are inclined to refix the rent at
Rs.1,000/- per mensum prospectively with effect from
1.2.2010. Accordingly we refix the rent. The respondent will
be liable to pay monthly rent to the revision petitioner at the
rate of Rs.1,000/- per mensum with effect from 1.2.2010. We
make it clear that such refixation is tentative only. It is open
to both sides to move Rent Control Court for refixation of fair
rent. Parties are directed to suffer their costs.
PIUS C.KURIAKOSE, JUDGE.
C.K.ABDUL REHIM, JUDGE.
okb