IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 RCRev..No. 172 of 2005() ------------------------ RCA.138/1998 of ADDL. DISTRICT COURT, THALASSERY RCP.217/1997 of PRL.M.C.,KANNUR .................... REVISION PETITIONER/PETITIONER/LANDLORD: ----------------------------------------------------- 1. V.C. YOUSUFF, S/O. AHAMMED KUTTY, AGED 58 YEARS, RESIDING AT SHALIMAR, KAKKAD, KANNUR-670 005. (DIED) *ADDL. PETITIO N ERS 2 TO 8: 2. K.P. ZUHARA, RESIDING AT SHALIMAR, KAKKAD, KANNUR. 3. K.P. VAHEEDA, RESIDING AT SHALIMAR, KAKKAD, KANNUR. 4. K.P. FAREEDA, RESIDING AT SHALIMAR, KAKKAD, KANNUR. 5. K.P.ABDUL RAHOOF,RESIDING AT SHALIMAR, KAKKAD, KANNUR. 6. K.P.SHAHILA,RESIDING AT SHALIMAR, KAKKAD, KANNUR. 7. K.P.SHAFEENA, RESIDING AT SHALIMAR, KAKKAD, KANNUR. 8. K.P.SHAFEEK, RESIDING AT SHALIMAR, KAKKAD, KANNUR. (* IMPLEADED AS PER ORDER DT. 12.1.2010 IN I.A.3608/09) BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID (THALASSERY) RESPONDENT(S): RESPONDENT: -------------------------- K.P.SAMEER KUMAR, S/O. ACHUTHAN, AGED 32 YEARS, RASCO ENTERPRISES, KAKKAD,KANNUR-5. ADV. SRI.N.NAGARESH SRI.K.BABU THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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