Kerala High Court

Valsalakumari vs Muhammed Yusuf on 22 February, 2021

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RCRev..No.430 OF 2017


                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                 THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                           &

                          THE HONOURABLE MR.JUSTICE C.S.DIAS

        MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                                 RCRev..No.430 OF 2017

AGAINST THE ORDER/JUDGMENT IN RCOP 11/2014 DATED 30-06-2016 OF MUNSIFF
                COURT/RENT CONTROLLER, KARUNAGAPPALLY

      AGAINST THE ORDER/JUDGMENT IN RCA 22/2016 DATED 04-10-2017 OF
         ADDITIONAL RENT CONTROL APPELLATE AUTHORITY -VI, KOLLAM

REVISION PETITIONER/S:

                   VALSALAKUMARI, AGED 63 YEARS, D/O. PARAMESWARAN
                   PILLAI,DEVAM VEEDU FROM KULANGARA
                   VEEDU,AYANIVELIKKULANGARA, VADAKKUM
                   MURI,AYANIVELIKKULANGARA VILLAGE,KARUNAGAPPALLY, KOLLAM
                   DISTRICT.

                   BY ADVS.
                   SRI.T.KRISHNANUNNI (SR.)
                   SRI.ASHWIN SATHYANATH
                   SMT.M.R.MINI
                   SMT.MEENA.A.
                   SRI.VINOD RAVINDRANATH
                   SRI.VINAY MATHEW JOSEPH

RESPONDENT/S:

         1         MUHAMMED YUSUF,AGED 65 YEARS, S/O. ABDUL RAHIM SAHIB
                   FROM MAJADIYIL VEEDU, VARAVILAMURI,
                   CLAPPANA,KARUNAGAPPALLY, NOW RESIDING AT LNRA
                   21/XVIII,LALAJI NAGAR, KARUNAGAPPALLY, REPRESENTED BY
                   HIS POWER OF ATTORNEY YASER AHAMMED,RESIDING AT LNRA
                   21/XVIII, LALAJI NAGAR,KARUNAGAPPALY, KOLLAM - 690 518.

         2         SIVAPRASAD K, AGED 53 YEARS, S/O. KUNJU KUNJU,RESIDING
                   AT KUMARETHU VADAKKE THARAYIL,PADANAYARKULANGARA
                   NORTH,KARUNAGAPPALLY - 690 518.

         3         IBRAHIMKUTTY, AGED 57 YEARS, S/O. YUNUS KUNJU,KOCHU
                   VADAYAKKANDA VEEDU,KOZHIKKODU MEKKUM
                   MURI,AYANIVELIKULANGARA VILLAGE,KARUNAGAPPALLY - 690
                   518.

                   R1 BY ADV. SRI.PHILIP J.VETTICKATTU
                   R1 BY ADV. SRI.VINEETH KURIAKOSE

     THIS RENT CONTROL REVISION HAVING BEEN FINALLY                HEARD    ON
22.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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RCRev..No.430 OF 2017




                A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
                    ======================
                           RCR No.430 of 2017
                    ======================
                Dated this the 22nd day of February, 2021.

                                     ORDER

A.MUHAMED MUSTAQUE , J.

The revision petitioner is the landlady. She filed

RC(OP)No.11/2014 before the Court of the

Munsiff/Rent Controller, Karunagappally for eviction of

three tenants under her on common ground available

under Sec.11 (3) of the Kerala Buildings (Lease and

Rent Control) Act (for short 'the Act'). She also sought

eviction under Sec.11 (4) (v) of the Act as against the

first respondent.

2. The Rent Controller allowed the claim under

Sec.11 (3) against all and also allowed claim under

Sec.11 (4) (v) as against the first respondent.

3. In appeal, i.e., RCA No.22/2016 filed by the

tenants, eviction under Sec.11 (3) as well as eviction

granted under Sec.11 (4) (v) as against the first

respondent have been set aside. It is challenging that

order, the revision petition has been filed.

4. Heard Sri.Krishnanunni, the learned counsel

RCRev..No.430 OF 2017

appearing for the revision petitioner and Sri.Vineeth

Kuriakose, the learned counsel appearing for the

respondents.

5. The brief facts involved in this case are as

follows: The revision petitioner/landlady is the owner of

the building which consists of seven shop rooms. Out

of the seven shop rooms, she is in occupation of three

rooms, there she conducts business in ladies wears and

kids wears. The landlady sought eviction under Sec.11

(3) of the Act essentially pleading that her son

Gopishkumar wanted to start a business in mens wear.

It was pleaded that her son resigned his job in a

Company at Madras and he is depending upon his

mother, the landlady for the purpose of starting such

business, for which he is in need of the shop rooms. It

was pleaded that the first respondent ceased to occupy

the building continuously for a period beyond six

months and the building is in an abandoned stage.

6. The respondents/tenants denied the bonafide

requirement of the landlady and further defended the

eviction stating that the income derived from the

petition schedule building is the only source of

livelihood and there are no other vacant buildings in

RCRev..No.430 OF 2017

the locality to shift their business.

7. The landlady/revision petitioner was

examined as PW1 and her son, for whom the bona fide

need was projected, was examined as PW2.

Tenants/respondents were examined as RWs 1 to 3.

8. On appreciation of the oral evidence, the

Rent Controller came to the conclusion that the need of

the landlady for starting business for her son is

genuine and bona fide. The Rent Controller also found

that the tenants miserably failed to prove that their

main source of income that is derived from the petition

schedule building. The Rent Controller also held that

the tenants also failed to prove that there are no other

vacant buildings in the locality to shift their business.

9. In regard to claim under Sec.11 (4) (v) of the

Act as against the first respondent, the Rent Controller

relied on the commission report. The commission

report reveals the nature and lie of the building at the

time of inspection. It was observed that the shutter of

the building was smeared with dust. The Rent

Controller also noted that the tenant failed to produce

any documents to show that he was conducting the

business during the alleged period of cessation.

RCRev..No.430 OF 2017

10. In appeal, the Rent Control Appellate

Authority (for short 'the Appellate Authority') reversed

the eviction ordered under Secs 11 (3) and 11 (4) (v) of

the Act as against the first respondent. The grounds of

eviction under Sec.11 (3) and 11 (4) are distinct and

separate. However, strangely, the Appellate Authority

considered both grounds together while disposing the

appeal. We deprecate such practice of the Appellate

Authority in disposing the appeal without adverting to

the different grounds urged for eviction. The Appellate

Authority ought to have considered both grounds as

distinct and separate. The Appellate Authority

observed that there is no proof to show that

Gopishkumar is residing at Karunagappally. He has

two children. Therefore, it was observed that he could

have produced some records to show that children are

studying in Karunagappally. The tenants contended

that the landlady could have constructed upstair

portion for the use of her son. The Rent Controller

observed that it is not possible taking note of the

nature and condition of the building. The landlady also

spoke that there is a bar under the Building Rules to

make such construction. In that context, the Appellate

RCRev..No.430 OF 2017

Authority found that without producing any documents

to show such prohibition under law, it can only be

assumed that it is only a ruse for eviction of the

tenants.

11. What are the parameters for assessing bona fide?

Bona fides is a state of mind. In the absence of an

oblique motive, any such claim put forward by the

landlord/landlady has to be understood as bona fide.

There are no straightjacket formulas to assess one's

bona fide. It has to be gathered from attending

circumstances. The want of proof of residence of a

person whose need is projected cannot be projected to

hold that lacks bonafide. The bona fides of the claim is

not dependent upon such records as already pointed

out. Bona fides has to be tested as against the

malafide or oblique motive entertained by a person.

The tenant has challenged the resignation of

Gopishkumar. The Appellate Authority noted that

merely because the landlady has produced Ext A14

evidence to show that her son was unemployed that

cannot be pressed into service to hold that he remains

unemployed. As observed earlier, one need not

demonstrate before the Court whether he remains

RCRev..No.430 OF 2017

employed or unemployed. The question is whether he

has a strong desire to occupy the building or not. The

facts remain in this case that other three rooms are in

occupation of the landlady conducting kids wear and

ladies wear business. It is quite probable in such

circumstances that the landlady has strong urge to

occupy such building for her son to run men's wear

business. In the absence of any malafides, such plea

of the landlord is only to be accepted. Therefore, we

are of the considered opinion that the Appellate

Authority misdirected in analyzing the evidence in the

background of the claim under Sec.11 (3) of the Act. It

is also to be noted that tenants also miserably failed to

prove that they are depending upon the income derived

from the business in the petition schedule building for

his livelihood and there are no other vacant buildings

in the locality to shift his business.

12. As against the first respondent, the Rent

Controller came to the conclusion that in the absence

of any evidence to show that he was running any

business as he claimed, in the light of the commission

report it has to be assumed that the building remained

closed for more than a period of six months

RCRev..No.430 OF 2017

continuously without any reasonable cause. According

to the first respondent, he was laid up and that is the

reason he could not occupy the building. The Appellate

Authority noticed that there was no effective challenge

to the testimony of the first respondent while he was in

box in regard to his claim that he was laid up during

the alleged period of cessation. It is to be noted that if

he was under treatment he could have very well

produced documents before the Rent Controller. He

has not chosen to produce any such document. Further

he has not produced any document to show that he was

engaged in any business. In such circumstances, we

are of the view that the Rent Controller rightly ordered

eviction under Sec.11 (4) (v) as against the first

respondent.

In the result, this revision is allowed. The order of

the Appellate Authority is set aside. The order of the

Rent Controller is restored. The tenants are granted

six months time to vacate the building on the following

conditions:

(i) The tenants shall file an affidavit, within

two weeks from the date of receipt of a copy of

this order, before the Execution Court or the

RCRev..No.430 OF 2017

Rent Control Court, as the case may be,

undertaking that they will vacate the petition

schedule shop rooms within six months from

today.