High Court Kerala High Court

V.C. Yousuff vs K.P.Sameer Kumar on 25 January, 2010

Kerala High Court
V.C. Yousuff vs K.P.Sameer Kumar on 25 January, 2010
       

  

  

 
 
  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.
                    ----------------------------------

                      R.C.R. No.172 of 2005

                    ----------------------------------
              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

RCR.172/05-D
2

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

RCR.172/05-D
3

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

RCR.172/05-D
4

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

RCR.172/05-D
5

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

RCR.172/05-D
6

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