{"id":123617,"date":"2008-06-25T00:00:00","date_gmt":"2008-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-m-sadick-vs-a-a-shahid-on-25-june-2008"},"modified":"2017-08-15T12:59:09","modified_gmt":"2017-08-15T07:29:09","slug":"c-m-sadick-vs-a-a-shahid-on-25-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-m-sadick-vs-a-a-shahid-on-25-june-2008","title":{"rendered":"C.M.Sadick vs A.A. Shahid on 25 June, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
C.M.Sadick vs A.A. Shahid on 25 June, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 97 of 2008()\n\n\n1. C.M.SADICK, S\/O. LATE C.M.MOHAMED\n                      ...  Petitioner\n2. SALES & DISTRIBUTION\n\n                        Vs\n\n\n\n1. A.A. SHAHID, AGED 50 YEARS\n                       ...       Respondent\n\n2. C.M. ISMAIL, S\/O.LATE C.M.MOHAMMED\n\n3. C.M.SALAM, S\/O.LATE C.M.MOHAMMED\n\n4. MRS. AMINA SIDHICK\n\n5. MRS. SELMA SHERIF, D\/O.LATE C.M.MOHAMMED\n\n                For Petitioner  :SMT.R.RANJINI\n\n                For Respondent  :SRI.N.M.MOHAMMED AYUB\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :25\/06\/2008\n\n O R D E R\n                                  P.R.Raman &\n                       T.R. Ramachandran Nair, JJ.\n                    - - - - - - - - - - - - - - - - - - - - - - - -\n                              R.C.R.No.97 of 2008\n                     - - - - -- - - - - - - - - - - - - - - - - - - - -\n                  Dated this the 25th day of June, 2008.\n\n                                    O R D E R\n<\/pre>\n
Ramachandran Nair, J.\n<\/p>\n
       This revision petition is filed by the petitioners herein who are tenants<\/p>\n
in R.C.P.No.172\/2003 which was filed by the first respondent, the landlord<\/p>\n
of the building. The landlord sought eviction of the building under Sections<\/p>\n
11(3) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act,<\/p>\n
1965 (for short ‘the Act’). The Rent Control Court ordered eviction on the<\/p>\n
ground urged under Section 11(3) and disallowed eviction under Section 11<\/p>\n
(4)(iii) of the Act.   The same has been confirmed in appeal by the<\/p>\n
Appellate Authority.\n<\/p>\n
       2. The whole dispute lies in a narrow compass.                 The landlord sought<\/p>\n
eviction for starting a wholesale business of fruits in the petition schedule<\/p>\n
building. The building was originally let out to one late Shri Muhammed,<\/p>\n
on   whose death the tenancy devolved on the respondents in the Rent<\/p>\n
Control Petition. The petitioners herein alone contested the proceedings<\/p>\n
and the others remained ex-parte. Admittedly, they are doing the business<\/p>\n
of glasswares and the rent payable is Rs.400\/- per month. The petitioners<\/p>\n
RCR 97\/2008                            -2-<\/span><\/p>\n
herein mainly contended that they are conducting business in the building as<\/p>\n
a partnership and actually the ground pleaded by the landlord is only a ruse<\/p>\n
for eviction. It was mainly pleaded that the proposed business is not<\/p>\n
feasible in the building as no road traffic is allowed in Jews Street where the<\/p>\n
building is situated and it was further pleaded that the landlord is having<\/p>\n
another building in his possession for conducting the business.<\/p>\n
      3. The evidence consists of oral testimony of P.Ws.1 and 2 and<\/p>\n
Exts.A1 and A2 were marked on the side of the landlord. The petitioners<\/p>\n
herein examined R.Ws.1 and 2 and produced Exts.B1 to B22. Ext.C1 is the<\/p>\n
Commission report.\n<\/p>\n
      4. The Rent Control Court overruled all the objections raised by the<\/p>\n
tenants on a detailed analysis of the evidence before it. It was found that the<\/p>\n
bonafide need urged by the landlord is a genuine one, that the objection<\/p>\n
pointed out by the tenants that wholesale business is not feasible in the<\/p>\n
building is not correct and that the landlord is not in possession of other<\/p>\n
rooms for conduct of business. It was also found that the petitioners herein<\/p>\n
are not entitled for the benefit of the second proviso to Section 11(3) of the<\/p>\n
Act. The Appellate Authority concurred with the above findings.<\/p>\n
      5. Heard the learned counsel for the petitioners Mrs. Ranjini and the<\/p>\n
learned counsel for the respondents Shri S. Sreekumar.<\/p>\n
RCR 97\/2008                           -3-<\/span><\/p>\n
       6. Learned counsel for the petitioners submitted that the authorities<\/p>\n
below have not properly considered an important point as regards the<\/p>\n
availability of suitable buildings for the landlord to conduct business. In<\/p>\n
fact, this is the main point argued by the learned counsel for the petitioners.<\/p>\n
Learned counsel submitted that going by the first proviso to Section 11(3)<\/p>\n
of the Act, if the landlord is in possession of another building of his own,<\/p>\n
special reasons ought to have been pointed out and in the absence of the<\/p>\n
same, the authorities cannot give any direction to the tenants to vacate the<\/p>\n
building. It is pointed out that going by Ext.B6 settlement deed of 1971,<\/p>\n
the landlord was having five buildings and in the absence of any evidence to<\/p>\n
the contra, it should be presumed that he is in possession of some of them,<\/p>\n
except the buildings he had sold, and therefore as no special reasons have<\/p>\n
been pointed out, the petition ought to have been dismissed. The learned<\/p>\n
counsel for the first respondent landlord submitted that the said argument<\/p>\n
has no merit in the light of the pleadings and evidence in this case.<\/p>\n
       7. Before going to the crux of the argument raised by the learned<\/p>\n
counsel for the petitioners, we may refer to the pleadings raised by the<\/p>\n
petitioners before the Rent Control Court, to appreciate the said argument.<\/p>\n
In paragraph 5 of the objection filed by the petitioners herein, the crucial<\/p>\n
averment as regards this aspect is that “the petitioner is one of the biggest<\/p>\n
RCR 97\/2008                           -4-<\/span><\/p>\n
landlords in the city owning number of buildings and he can conduct the<\/p>\n
proposed business in any one of the building owned by him. Many rooms<\/p>\n
in the petitioner’s building are lying vacant”. But the petitioners have not<\/p>\n
pointed out any particular room or building which is lying vacant for the<\/p>\n
landlord to do business.\n<\/p>\n
      8. The landlord was examined as P.W.1. In the proof affidavit he has<\/p>\n
denied the averment contained in the objection filed by the tenant that there<\/p>\n
are vacant rooms in his possession and stated that no other buildings are in<\/p>\n
his possession. In the cross examination, he stated that he was having two<\/p>\n
rooms, one in the Jews Street and another in Broadway which have been<\/p>\n
sold to the tenants who were occupying the same. The building in Jews<\/p>\n
Street was sold 5 to 8 years back and the room in Broadway was sold just<\/p>\n
before the filing of the Rent Control Petition. But negotiations were there<\/p>\n
for the conveyance of the building long prior to that and the said building<\/p>\n
was also sold to the tenant who was occupying the same. The said<\/p>\n
building had to be sold for meeting the medical expenses of his wife. The<\/p>\n
suggestions put to him regarding availability of buildings in the shopping<\/p>\n
complex owned by the family was also denied by him. Thus, it is clear, on a<\/p>\n
reading of the deposition of P.W.1, that the petitioners had not put any<\/p>\n
suggestion regarding the availability of rooms by relying upon Ext.B6.<\/p>\n
RCR 97\/2008                           -5-<\/span><\/p>\n
      9. The first petitioner was examined as R.W.1. Ext.B6 was marked<\/p>\n
in evidence to plead that two of the rooms referred to therein are remaining<\/p>\n
vacant. Learned counsel for the petitioners vehemently argued that the<\/p>\n
tenants have discharged their burden by pointing out two vacant rooms and<\/p>\n
as the landlord has not adduced any contra evidence, the unchallenged<\/p>\n
evidence thus adduced by the tenant is crucial as far as the issue regarding<\/p>\n
availability of vacant rooms in the possession of the landlord is concerned,<\/p>\n
for the purpose of the first proviso to Section 11(3) of the Act and therefore<\/p>\n
the eviction petition can only be dismissed. It is contended that going by<\/p>\n
Ext.B6, the landlord was allotted five buildings\/room and even if he had<\/p>\n
sold two of them, it should be presumed that the remaining buildings are<\/p>\n
with him and lying vacant.\n<\/p>\n
      10.    We may at once notice that no attempt was made by the<\/p>\n
petitioners to take out a commission in support of the plea that the landlord<\/p>\n
is having vacant rooms in his possession, that too within the town itself. No<\/p>\n
explanation is offered for not adducing any further evidence on this aspect.<\/p>\n
As noticed earlier, when the landlord was cross examined, no particular<\/p>\n
suggestion was made as regards these two rooms with the landlord. It is<\/p>\n
only after the evidence on the part of the landlord was concluded, that the<\/p>\n
tenant has come up with Ext.B6. In the objections filed in the Rent Control<\/p>\n
RCR 97\/2008                          -6-<\/span><\/p>\n
Petition also, there was no such case as regards vacant possession by the<\/p>\n
landlord of any particular building. Therefore, the argument now raised<\/p>\n
before this court by relying upon Ext.B6, has to be assessed in the above<\/p>\n
factual situation.\n<\/p>\n
      11. That the landlord has denied having possession of any other<\/p>\n
rooms within the town is clear from his own proof affidavit. He had denied<\/p>\n
in his cross examination various suggestions made to him especially in<\/p>\n
respect of the rooms he was owning in Jews Street and Broadway as well as<\/p>\n
in the shopping complex, viz. Kockers Complex.        Thus, the landlord has<\/p>\n
clearly discharged his burden of showing that he was not having any<\/p>\n
building remaining vacant at the time of filing of the Rent Control Petition.<\/p>\n
Apart from the mere assertion in the deposition by the tenant, no particular<\/p>\n
effort was made to show that any building is remaining vacant for<\/p>\n
immediate occupation of the landlord. Even when examined as R.W.1, the<\/p>\n
tenant has not pointed out any particular building with building number, etc.<\/p>\n
to support the plea that they are remaining vacant and in the possession of<\/p>\n
the landlord. Thus, we are of the view that the tenant has miserably failed<\/p>\n
to establish and prove the said contention by any cogent and reliable<\/p>\n
evidence. Therefore, the argument raised by the learned counsel for the<\/p>\n
petitioners by relying upon Ext.B6 settlement deed cannot hold good. The<\/p>\n
RCR 97\/2008                           -7-<\/span><\/p>\n
landlord has categorically denied possession of any vacant rooms and read<\/p>\n
with other materials it will be evident that the faint plea raised by the tenant<\/p>\n
has no legal support.\n<\/p>\n
      12. In fact, a reading of the order passed by the Rent Control Court<\/p>\n
will show that the above aspect was considered in paragraph 9 of the order.<\/p>\n
It was clearly found that no satisfactory evidence was adduced to show that<\/p>\n
vacant rooms are remaining in the building in Chittoor Road. It was also<\/p>\n
found that going by the decision of this court in Asher v. Hassankutty<\/p>\n
Hajee<\/a> (2004 (2) KLT 446), the co-ownership over a building will not<\/p>\n
disentitle a landlord under the first proviso, to claim eviction under Section<\/p>\n
11(3) of the Act. After referring to the other suggestions put to the landlord,<\/p>\n
the Rent Control Court has made reference to Ext.B6 and relied upon the<\/p>\n
deposition of P.W.1 that presently there is no building in his name except<\/p>\n
the petition schedule room, to reject the contention raised by the tenant.<\/p>\n
Thus, this is a matter which was considered by the Rent Control Court also<\/p>\n
with reference to the evidence adduced before it. In fact, it was observed by<\/p>\n
the Rent Control Court that the landlord was not confronted with Ext.B6<\/p>\n
document by the tenant while he was cross examined.\n<\/p>\n
      13. These aspects have been considered by the Appellate Authority<\/p>\n
RCR 97\/2008                          -8-<\/span><\/p>\n
in paragraphs 13 and 14 of the judgment. The Appellate Authority found<\/p>\n
that no evidence is forthcoming to show that the landlord is in possession of<\/p>\n
any other building in the same city, town or village, so as to start the<\/p>\n
proposed business.\n<\/p>\n
      14. Thus, the conclusion is irresistible that the tenant has miserably<\/p>\n
failed to prove the elements to discharge the burden that the landlord is<\/p>\n
having in his possession of other vacant building in the same city, town or<\/p>\n
village for his occupation. Therefore, the spacious plea raised before us by<\/p>\n
the learned counsel for the petitioners has only to be rejected and we do so.<\/p>\n
      15. As we have already noticed, the authorities below have<\/p>\n
concurrently found in favour of the landlord on the bonafide need pleaded.<\/p>\n
On the evidence the said conclusions are justified.        We find that the<\/p>\n
authorities below have considered the evidence and appreciated the same in<\/p>\n
the right perspective and the view taken is a plausible one also.<\/p>\n
      For all these reasons, we dismiss the revision petition.<\/p>\n
      At this stage, the learned counsel for the petitioners sought for some<\/p>\n
time to vacate the premises.    We grant six months time from today to the<\/p>\n
petitioner to vacate the premises on condition that he files an undertaking in<\/p>\n
the form of an affidavit before the Rent Control Court undertaking to vacate<\/p>\n
the premises unconditionally on or before the expiry of six months from<\/p>\n
RCR 97\/2008                           -9-<\/span><\/p>\n
today and also to pay the arrears of rent, if any, due and continue to pay the<\/p>\n
monthly rent till the premises are vacated. The affidavit shall be filed<\/p>\n
within three weeks from today.       The petitioners shall deposit the entire<\/p>\n
arrears of rent, if any, within the aforesaid period of three weeks and shall<\/p>\n
continue to pay an amount equivalent           to the rent payable, towards<\/p>\n
compensation for use and occupation, till possession is surrendered. If any<\/p>\n
of the conditions aforesaid is violated, then the order of eviction will<\/p>\n
become enforceable at once.\n<\/p>\n<\/p>\n
                                            ( P.R.Raman, Judge.)<\/p>\n
                                      (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court C.M.Sadick vs A.A. Shahid on 25 June, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-123617","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nC.M.Sadick vs A.A. 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