IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 RCRev..No. 157 of 2011() ------------------------ RCA.165/2008 of ADDL. DISTRICT COURT, KOZHIKODE-III RCP.153/2007 of ADDL.M.C.,KOZHIKODE-I .................... PETITIONERS IN RCR/2ND APPELLANTS IN RCA – RESPONDENT 4 IN RCP -------------------------------------- ANIL SAJJADH.M.V, S/O.LATE C.P.M.ABDUL AZEEZ, RESIDING AT SHABANAZ, KOTHAKULAM VAYAL ROAD, BEHIND CHALAPPURAM GOVERNMENT GANAPATH HIGHER SECONDARY SCHOOL, KASABA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.B.KRISHNAN RESPONDENT(S)/ RESPONDENTS 5 TO 12 TO 4 & APPELLANT NO.1 IN RCA-LRS OF THE PETITIONER & RESPONDENTS 2,3 & 1 IN RCP: --------------- 1. SUBAIDA, D/O.LATE PUTHIYA MALIYEKKAL MARIYAMBEE, RESIDING AT PUTHIYA MALIYEKKAL HOUSE, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. MAMMEDKUTTY, S/O.DO. IN DO. DO. 3. ABDUL AZEEZ, S/O.DO. IN DO. DO. 4. LAILA, D/O.DO. RESIDING IN DO. DO. 5. ASKAR, SON OF DO. RESIDING DO. DO. 6. SAKEENA, D/O.DO. IN DO. DO. 7. ASSAN KOYA, SON OF DO. RESIDING IN DO. DO. 8. AFSA, D/O.DO. RESIDING IN DO. DO. 9. YASIM.M.V, S/O.LATE C.P.M.ABDUL AZEEZ, EMARAE, TECHNO CASTING (L.L.C), POST BOX NO.2895, AJMAN, U.A.E. 10. SHABANA.M.V, D/O. DO.IN DO. DO. 11. M/S.MALABAR ENTERPRISES, REPRESENTED BY ITS PARTNER SIRAJ, DOOR NO.12/993, BIG BAZAR, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 12. SOUDHA.M.V, W/O.LATE C.P.M.ABDUL AZEEZ, RESIDING AT SHABANAZ, KOTHAKULAM VAYAL ROAD, BEHIND CHALAPURAM GOVT. GANAPATH HIGHER SECONDARY SCHOOL, KASABA AMSOM DESOM, KOZHIKODE TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 157 OF 2011 ------------------------ Dated this the 8th day of April, 2011 O R D E R Balakrishnan, J. The 4th respondent in the Rent Control Petition has filed this revision under Section 20 of Act 2 of Kerala Buildings (Lease & Rent Control) Act 1965 challenging the order of eviction concurrently passed under Sections 11(3) and 11 (4)(i) of the Act. The landlady, who died pending the Rent Control Appeal, filed the eviction petition on the ground of bona fide occupation by her dependent son for conducting rice business and also on the ground that the tenants have sub leased the petition schedule building without her knowledge and consent. 2. The claim was resisted by the legal heirs of the original tenant contending that the need set up in the petition is only a ruse for eviction and that the petition schedule building was not sub leased to anybody. It was further contended that Sirajudheen is only an employee and he was given wages or commission for helping RW2 - Abdul Razak who is conducting business in the petition schedule building. 3. The Rent Control Court after analysing the entire RCR.No.157/2011 2 evidence meticulously found that the need set up by the landlady is bona fide. It was also found that the tenants failed to establish that they are entitled to the protection under the second proviso to sub section (3) of Section 11. It was further held that the business in the petition schedule building is exclusively conducted by RW4 and that the tenanted premises was sub leased to him by the tenants and accordingly order of eviction was passed both under Sections 11 (3) and 11(4) (i) of the Act. 4. The learned Rent Control Appellate Authority after reappraisal of the evidence concurred with the view taken by the trial court and dismissed the appeal. 5. The revision petitioner contends that the courts below did not appreciate the evidence properly. The landlady and her children are having so many buildings of their own and the need projected by PW2 is not true. The allegation that the petition schedule building was sub leased to RW4 and he is exclusive possession of the same is also not correct. 6. We have heard the learned counsel appearing for the revision petitioner and also gone through the order of the Rent Controller and the judgment of the learned Appellate Authority. PW2, for whose need the petition schedule building was sought to RCR.No.157/2011 3 be evicted, has given evidence that he is depending on his mother, the landlady, and that he has no avocation or business and that he bona fide intends to start the business in rice. The petition schedule building is situated in Big Bazar in Kozhikode which is very ideal and suitable for the conduct of business in food grains. The evidence given by PW2 was rightly accepted by the two Courts below. 7. Though it was contended that the landlady and her children are having so many buildings of their own, the tenants did not substantiate the plea that the landlady is in possession of any vacant shop room so as to enable PW2 to start the business in rice. The lease deeds and other documents were produced by the landlady to show that the buildings which belonged to her were in the possession of the tenants. No document was produced by the tenants to prove that the landlady was in possession of any vacant shop room. Therefore, the claim is not hit by the first proviso to section 11 (3). The tenants could not prove that they are mainly depending on the business conducted in the petition schedule building and that there are no other vacant building available in the locality for shifting the business. It was rightly found by the courts below RCR.No.157/2011 4 that the tenants are not entitled to the benefits of the second proviso to section 11(3) of the Act. Hence, the order of eviction passed under Section 11(3) does not warrant any interference. 8. It was found by the courts below that when the Advocate Commissioner inspected the petition schedule building he found that the business therein was being conducted by RW4. Three other employees were also found therein. There was no case for the tenants that those persons were employed by him. Though it was contended by the tenants that RW4 was only a salesman helping RW2 in conducting business and RW4 was being paid wages or commission, it could not be substantiated by producing acceptable evidence. Some receipts were produced before the Courts below. It was rightly rejected by the courts below finding that any number of such receipts can be created at any time. If as a matter of fact, RW4 was only a salesman then certainly the records maintained under the provision of the Shops and Commercial Establishments Act and other Acts should show the name of RW4 as the salesman/employee. No such document was produced. Similarly, the account books pertaining to the business conducted in the shop should also show the expenses incurred towards payment of wages to the salesmen. No such RCR.No.157/2011 5 document was also produced. RW2 who was stated to have conducted the business had no idea as to whether any food grain dealer licence or the licence under the other Act were obtained for the conduct of the business. To crown it all, the name board of the business exhibited in front of the shop showed the mobile phone number of RW4, that itself is indicative of the fact that the business exclusively belonged to RW4. The tenants failed to prove the jural relationship between the tenants and the alleged sub tenant who was found in the tenanted premises conducting business therein. As such the courts below were perfectly justified in holding that there was objectionable sub letting or transfer of possession of the tenanted premises in favour of RW4. There is no illegality, irregularity or impropriety in the order passed by the courts below. This revision petition is hence dismissed. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk RCR.No.157/2011 6 RCR.No.157/2011 7 PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No.157 OF 2011 ------------------------ Dated this the 8th day of April, 2011 O R D E R Balakrishnan, J. The challenge in this revision is the order of eviction concurrently passed by the courts below under Section 11(3) and 11(4)(i) of the Act. The landlords contended that the petition schedule building is bona fide required for starting business. The need was resisted by the tenant contending that the need projected is only a pretext for eviction. It was also contended that for at least several decades, the tenant and his predecessors were conducting business in the petition schedule building and Simply because his relatives were found in the premises, it cannot be said that the building was sub lease to his brother. PW2, the needy person, has given evidence to the effect that he is depending on the landlords for the purpose of the building. RCR.No.157/2011 8 The evidence of PW1 was accepted by the Rent Control Court and also by the Appellate Authority. It was found that the petition schedule building, which is situated in Big Bazar (Calicut), is not suitable for doing rice business which is the business intended to be started by PW2. Though various grounds were raised by the tenant resisting the claim for bona fide need for own occupation, both the courts below found favour with the landlords and held that the bona fide need is true , genuine and honest. Though the tenant contended that he is mainly depending on the petition schedule building for eking out his livelihood, he could not satisfied the two ingredients required for the protection under the second proviso to section 11 (3) of the Act. Therefore, the order of eviction passed under Section 11 (3) is only to be confirmed. 2. Sub Lease. After re-appreciating the evidence, the Appellate Authority concurred with the order of eviction passed under Section 11 (4) (i). We find no illegality, irregularity or impropriety in the orders passed by the courts below. Hence, this revision petition is RCR.No.157/2011 9 dismissed. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk