IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 218 of 2003()
1. MOHAMMED SHERIFF, AGED 42 YEARS,
... Petitioner
2. MOHAMMED NOWFAL, AGED 39,
Vs
1. SIVADASAN, SON OF NANU,
... Respondent
2. MUTHU, SON OF NANU,
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent :SMT.T.S.MAYA
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :25/09/2009
O R D E R
PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ.
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RCR. No. 218 OF 2003
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Dated this the 25th day of September, 2009
O R D E R
Pius C. Kuriakose, J.
The landlords are in revision and they are aggrieved in
that the eviction petition filed by them was dismissed
concurrently by the Rent Control Court and the Appellate
Authority. The parties will be referred to as landlords and
tenants. Landlord tenant relationship between the parties is
not disputed. The landlords sought eviction of the
respondents tenants on the ground of arrears of rent
(Section 11(2)(b), subletting (Section 11(4)(i) and bona fide
need for own occupation (Section 11(3) and negligent user
of the building (Section 11(4)(2). Statement of objections
was filed by the respondents disputing the averments in the
RCP constituting various grounds for eviction and after trial
the Rent Control Court dismissed the RCP. Sri.P.B.Suresh
Kumar, learned counsel for the revision petitioners
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submitted before us that we need in this revision to be
considered seriously only with the ground for eviction
sought under Section 11(3) and we therefore are referring
to the pleadings raised by the parties in the context of that
eviction ground only.
2. It is averred in the RCP that the second petitioner
landlord is presently employed in Dubai and that the first
petitioner is presently unemployed. The first petitioner was
also working in Dubai, but he returned to Kerala in June
1994 and thereafter he is remaining unemployed. The
second petitioner needs the petition schedule building for
his own occupation for conducting business in Automobile
Spare Parts. The first petitioner has got experience in
Automobile Spare Parts business. The petitioner was a
salesman in Automobile Spare Parts in Dubai for about 15
years. He has the ability to conduct Automobile Spare Parts
business in the plaint schedule building. The petitioners
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have no building of their own in their possession for
conducting above business within the limits of Kollam
Municipal Town. Even if the first counter petitioners wants
to conduct any business, other suitable buildings are
available in the locality. It is reliably understood that he is a
salesman in the vegetable shop belonging to one Abdul
Azeez in Quilon market. His son is also working in Gulf
Countries.
3. Resisting the above claim it was contended by the
respondents through their joint counter that the present
landlords and their brother one Abdul Wahab who is
collecting rent of the premises of the first counter petitioner
upon the demise of their father Yoonus Kunju, original
landlord, had been making repeated demands for
enhancement of rent. When the tenants did not accede to
the demand for enhancement of rent which was made for a
second time, the landlords began in launching unsuccessful
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petitions on various grounds seeking eviction of the tenants.
The allegation that the first petitioner is unemployed and is
in need of the petition schedule building is false. The
alleged need is only a ruse for getting the first petitioner
evicted. It was contended that the petition schedule
building is not fit or suitable for conduct of his business as
proposed by the petitioner. The first petitioner does not
have the ability to conduct automobile spare parts business.
Petitioners have many other suitable buildings of their own
in their possession. The allegation that the first counter
petitioner is working as a salesman in a vegetable shop is
false. Claiming the protection of the second proviso to
subsection (3) of Section 11 it was contended that the first
counter petitioner is depending mainly on the income
derived from the business carried on in the premises for his
livelihood. The first counter petitioner has no other source
of income and no alternate suitable accommodation is
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available for shifting the first counter petitioner’s business.
4. As already stated, the Rent Control Court on
evaluation of the entirety of the evidence which came on
record consisting of Exts. A1 to A26, PW-1 to PW-4, B1 to
B18, RW-1 and RW-2 and C1 commission report and C2
mahazar negatived all the prayers of the landlords and
dismissed the rent control petition completely. The
Appellate Authority found reversing the finding in that
regard of the Rent Control Court that the petitioners
landlords have established the bona fide need of the first
petitioner to occupy the premises for doing business,
however, confirmed the decision of the Rent Control Court
dismissing the RCP under Section 11(3) also holding that
the tenant is entitled to the protection of second proviso to
subsection (3) of Section 11. It is challenging that decision
that in this revision under Section 20 the landlords impugn
the judgment of the Appellate Authority declining order of
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eviction on all the grounds invoked. However, at the time of
hearing Sri.P.B.Suresh Kumar, learned counsel for the
revision petitioners would assail strenuously only the
decision of the Rent Control Appellate Authority that the
tenant is entitled for the protection of the second proviso to
subsection (3) of Section 11. The learned counsel
submitted that it is settled law that for claiming benefits of
second proviso to Section 11(3) it is the tenant’s burden to
establish that he satisfies both the ingredients of that
proviso. It was brought on record that the tenant has
several properties including shops in his name in the locality
and that his son is employed abroad. The only reason given
by the Appellate Authority in support of its finding that the
tenant has established that he is entitled to the benefits of
the second proviso to sub-section (3) of Section 11 is that
the availability of the vacant premises was ascertained by
the tenant from the Accommodation Controller and that as
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per register maintained by the Accommodation Controller no
vacant buildings are available in the locality. The Appellate
Authority however, failed to notice that the evidence given
by the Accommodation Controller was to the effect that
there is no material available in his office to indicate that
the tenant has ascertained the availability of vacant
buildings. It was also his evidence that the register
available in the Accommodation Controller’s Office is only for
the period from 1-4-1998 and that the Accommodation
Controller has not conducted any independent enquiry
regarding the availability of the vacant premises in the
locality. Mr. Sureshkumar submitted that finding of the
Appellate Authority that it is for the landlord to take steps
for establishing that vacant premises are available in the
locality is erroneous. The landlord actually has in his
evidence as PW-1 mentioned numbers of the various vacant
premises available in the locality. There is no effective cross
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examination on such evidence given by the landlord.
Particulars of these vacant premises were put to the tenant
and also to the Accommodation Controller when they were
cross examined. The Accommodation Controller pretended
ignorance. The tenant gave evasive answers. Mr.
Sureshkumar also submitted that there was no legal
evidence to hold that the tenant was depending solely on
the income derived from the petition schedule building for
his livelihood.
5. All the submissions of Mr.Sureshkumar were very
forcefully resisted by Smt.K.G.Bindu, learned counsel for the
respondent. She would assail the finding of the Rent
Control Court and the Appellate Authority that the need
projected by the landlord is bona fide. She would also
support the findingof the Appellate Authority that the tenant
is entitled to the protection of the second proviso.
6. Mr. P.B.Sureshkumar placed reliance on the
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judgment of the Supreme Court in M.L.Prabhakar v. Rajiv
Singal, (2001)2 SCC 355 for meeting the argument of
Smt.Bindu that the non-disclosure of the availability of
building having door No.127/B with the landlord amounted
to suppression of a material fact in the context of the fist
proviso to Section 11(3). The definition clause of the Delhi
Rent Control Act was also referred to in this connection by
Mr.Sureshkumar. Smt.Bindu per contra would rely on the
judgment of a Division Bench of this Court in Janatha Drugs
v. Maithri Construction, 2007(4) KLT 625 to argue that the
burden is on the landlord to plead and prove special reasons
when he has possession of other rooms and that the special
reason should be germane to the issue in question and
should not be an evasive reason.
7. We have very anxiously considered the rival
submissions addressed at the Bar in the light of the
statutory provision cited before us. We have scanned the
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order of the Rent Control Court and the judgment of the
Appellate Authority. We have also re-examined the
evidence to the extent necessary for appreciating the rival
submissions. One of the issues which came up before us
seriously is whether the building having door No.127/B in
Ward No.33 of Mulamkadakom at Kollam Corporation which
was pointed out by the tenant as possessed by the landlord
in the context of the first proviso to Section 11(3) is in the
vacant possession of the landlord and whether such vacant
possession will disentitle the landlord to an order of eviction
under subsection (3) of Section 11. We have no difficulty to
find that at the moment the landlord does have possession
of that building. But according to the landlord the building
is occupied by him for doing small time grocery business.
According to the landlord even if the landlord is having
vacant possession of that building, that building cannot be
utilised for the need projected in the RCP which is for
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carrying on business in automobile spare parts. The petition
schedule building is situated in the commercial heart land of
the Kollam Corporation ideal for the proposed business,
while building having door No.127/B in Ward No. 33 is
situated in a residential area. We are in fact convinced that
as of now it is only a very scanty business which is carried
on by the petitioner landlord in building having door
No.127/B in Ward No.33 of Mulankadakom and we enquired
of the landlord whether landlord will be prepared to let out
that building to the revision respondent tenant in exchange
for the petition schedule building. On our persuasion the
landlord agreed. But Smt.Bindu, the learned counsel for the
respondent submitted that the response of her client to the
suggestion to surrender the petition schedule building in
exchange for the building at Mulankadakom is lukewarm.
8. It is trite by various judgments of this Court such as
1976 KLT 1 (Kochappan Pillai v. Chellappan), 2003(2) KLT
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230 (Francis v. Sreedevi Varassiar) that the burden is that
of the tenant to establish that he is depending for his
livelihood mainly on the income derived from the business
carried on by him in the petition schedule building. It is also
trite that both the ingredients of the second proviso to
Section 11(3) are in the conjunctive and therefore unless
both the ingredients are established the tenant will not be
entitled to the protection of the proviso at all. When the
entirety of the evidence on record in this case in the context
of the second proviso is examined it will be seen that the
tenant has not been able to establish that the second
ingredient of the second proviso – availability of other
buildings in the locality for the tenant to shift his business to
has been established. Locality does not mean the immediate
vicinity of the petition schedule building. We are of the view
that the tenant was not successful in proving that other
buildings are not available in the locality. As for the
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vacancy register maintained by the Accommodation
Controller it is a matter of common knowledge that such
registers are not seriously maintained . In fact, the
Accommodation Controller himself said in his evidence that
he does not have the equipment and machinery in his office
for making enquiries regarding buildings which become
available for letting. He only records vacancies as and when
reports are received voluntarily from landlords or tenants.
As for the present case it is in evidence that at least building
having door No. 127/B in Ward No. 33 of Mulamkadakom is
available to the tenant. May be, the area of the petition
schedule building is more ideal. But the question to be
considered in the context of the second proviso is only
whether it will be possible for the tenant to carry on his
business in building No. 127/B in Ward No. 33. Once it is
shown that the tenant has failed in establishing either of the
ingredients of the second proviso it necessarily has to follow
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that the tenant is not entitled to the protection of the
second proviso.
The result of the above discussion is that the RCR will
stand allowed. Order of eviction under Section 11(3) is
passed against the respondent. The revision petitioner is
directed to let out building having door No.127/B in Ward
No. 33 of Mulamkadakom of Kollam Corporation to the
revision respondent on an initial monthly rent of Rs.500/-.
The respondent is directed to express his consent in writing
to the revision petitioner to take building having door
No.127/B in Ward No. 33 on lease on a monthly rent of
Rs.500/- for conducting the business carried on by him in
the petition schedule building within a period of one month
of receiving copy of this judgment. If such a consent letter
is received from the respondent the revision petitioner will
induct the respondent as his tenant in that building on a
monthly rent of Rs.500/- upon executing a lease deed
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incorporating other formal conditions of lease including a
condition prohibiting unauthorised sublease or transfer.
Subject to the above the respondent is directed to put the
revision petitioner in possession of the building on or before
31-12-2009.
(PIUS C.KURIAKOSE, JUDGE)
(P.Q.BARKATH ALI, JUDGE)
ksv/-