IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q. BARKATH ALI FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 RCRev..No. 218 of 2003() ------------------------ RCA.19/1999 OF RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.13/1996 OF RENT CONTROL, KOLLAM .................... REVISION PETITIONERS/APPELLANTS/PETITIONERS --------------------------------------------------------------- 1. MOHAMMED SHERIFF, AGED 42 YEARS, RESIDING AT KOCHU PUTHEN VEEDU, MANAYILKULANGARA, MUNDALUMMOODU, KOLLAM-12. 2. MOHAMMED NOWFAL, AGED 39, RESIDING AT KOCHUPUTHEN VEEDU, MANAYILKULANGARA, MUNDALUMMOODU, KOLLAM-12, REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL GAFOOR, AGED 60, HASIM MANZIL, KANIYAPURAM P.O., TRIVANDRUM-1. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S): RESPONDENTS/COUNTER PETITIONERS ---------------------------------------------- 1. SIVADASAN, SON OF NANU, RAJA'S BAKE AND COLL BAR, M.C.NO.18307, ANDAMUKKOM WARD, KOLLAM. 2. MUTHU, SON OF NANU, RAJA'S BAKE AND COOL BAR, M.C.NO.18307, ANDAMUKKOM WARD, KOLLAM. ADV. SMT.T.S.MAYA FOR R1 SMT.K.G.BINDU FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON 25-09-2009 PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ----------------------------------------------- RCR. No. 218 OF 2003 ----------------------------------------------- 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 RCR. N0. 218/03 -2- 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 RCR. N0. 218/03 -3- 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 RCR. N0. 218/03 -4- 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 RCR. N0. 218/03 -5- 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 RCR. N0. 218/03 -6- 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 RCR. N0. 218/03 -7- 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 RCR. N0. 218/03 -8- 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 RCR. N0. 218/03 -9- 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 RCR. N0. 218/03 -10- 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 RCR. N0. 218/03 -11- 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 RCR. N0. 218/03 -12- 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 RCR. N0. 218/03 -13- 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 RCR. N0. 218/03 -14- 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 RCR. N0. 218/03 -15- 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/-