Kerala High Court
P.M Hussain vs Binu.G on 12 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
RCREV. NO. 38 OF 2024
AGAINST THE JUDGMENT DATED 04.08.2023 IN RCA NO.17 OF 2022 OF
DISTRICT & SESSIONS COURT, ALAPPUZHA ARISING OUT OF THE ORDER
DATED 30.09.2022 IN RCP NO.10 OF 2019 OF PRINCIPAL MUNSIFF,
ALAPPUZHA
REVISION PETITIONER(S)/RESPONDENT/RESPONDENT:
P.M HUSSAIN
AGED 56 YEARS
S/O.P.POOKUTTY, SNEHARPPANAM VILLAS, ZACHARIA BAZAR,
ALAPPUZHA WEST VILLEGE, ALAPPUZHA DISTRICT,
PIN - 688012
BY ADVS.
T.JAYAKRISHNAN
R.KRISHNAKUMAR (CHERTHALA)
RESPONDENT(S)/APPELLANT/PETITIONER:
1 BINU.G
AGED 54 YEARS
S/O.GOPALAKRISHNAN NAIR, 1186, BIJI NIVAS, PALACE WARD,
IRON BRIDGE P.O, ALAPPUZHA DISTRICT, PIN - 688011
2 B.NIRMALA DEVI
AGED 71 YEARS
W/O.GOPALAKRISHNAN NAIR, 1186, BIJI NIVAS, PALACE WARD,
IRON BRIDGE P.O, ALAPPUZHA, PIN - 688011
BY ADVS.
SADCHITH P KURUP
C.P.ANIL RAJ(K/872/2007)
SIVA SURESH(K/2688/2022)
RESHMA RAJ(K/1150/2021)
B.SREEDEVI(K/169/2024)
ATHIRA VIJAYAN(K/199/2024)
RCREV. NO. 38 OF 2024 -2-
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 12.06.2024, ALONG WITH RCRev..104/2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NO. 38 OF 2024 -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
RCREV. NO. 104 OF 2024
AGAINST THE JUDGMENT DATED 04.08.2023 IN RCA NO.17 OF
2022 OF DISTRICT & SESSIONS COURT, ALAPPUZHA ARISING OUT
OF THE ORDER DATED IN RCP NO.10 OF 2019 OF PRINCIPAL
MUNSIFF, ALAPPUZHA
REVISION PETITIONER(S)/REV.PETITIONER:
1 BINU G
AGED 53 YEARS, S/O. GOPALAKRISHNAN NAIR,
1186, BIJI NIVAS, PALACE WARD IRON BRIDGE PO,
ALAPPUZHA, PIN - 688011
2 B. NIRMALA DEVI,
AGED 72 YEARS, W/O. GOPALAKRISHNAN NAIR,
1186, BIJI NIVAS, PALACE WARD IRON BRIDGE PO,
ALAPPUZHA, PIN - 688011
BY ADVS.
SADCHITH.P.KURUP
C.P.ANIL RAJ
SIVA SURESH
B.SREEDEVI
ATHIRA VIJAYAN
RESPONDENT(S)/RESPONDENT:
P.M. HUSSAIN, S/O. P. POOKUTTY
SNEHARPPANAM VILLA ZACHARIYA BAZAR ALAPPUZHA
WEST VILLAGE ALAPPUZHA, PIN - 688012
THIS RENT CONTROL REVISION HAVING BEEN FINALLY
HEARD ON 12.06.2024, ALONG WITH RCRev..38/2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NO. 38 OF 2024 -4-
JUDGMENT
[RCRev. Nos.38/2024, 104/2024]
AMIT RAWAL, J.
1. This order of ours shall dispose of two Rent
Control Revisions, R.C. Rev.No.38 of 2024 preferred by
the tenant aggrieved by the decision of the appellate
authority dated 04.08.2023 in RCA No.17 of 2022 and
Rent Control Revision No.104 of 2024 filed by the
landlords against the same judgment, aggrieved of the
non determination of the arrears of rent.
2. Succinctly, the facts in brief are, the Landlord
instituted rent petition bearing No.10 of 2019 claiming
arrears of rent and eviction on the ground of personal
necessity. The aforementioned rent petition was filed on
25.03.2019. Preceding institution of the rent petition, a
legal notice dated 07.11.2018 was sent calling upon the
tenant to vacate the premises i.e., the petition schedule
shop room bearing door no. AMCW No. 26/205. It was
stated that the premises was required bonafidely for
carrying on their own business.
3. Tenant objected the aforementioned pleas and
stated that the landlords had not come to the Court with
clean hands and had suppressed various facts as had
been in possession of various vacant rooms and no
reasoning had been assigned for non occupation of those
rooms. Details of some shop numbers were also given.
4. Landlord in support of the evidence, examined
himself as PW1 and brought on record the following
documents:
"Exhibits for the Petitioner:
A1 1-8-2017 Rental agreement
A2 7-11-2018 Copy of Lawyer's Notice
A3 7-11-2018 Postal receipt
A4 - Acknowledgment card
A5 24-11-2018 Reply notice
Witness for the Petitioner:
PW1 4-2-2020 Binu.G"
5. On the other hand, the tenant examined CPW1
to CPW4 and brought on record B1 to B6. Court Exhibits
C1 and C1(a) other exhibits X1, X1(a) and X2 to X8(c) are
given hereunder:
"Exhibits for the Cr.Petitioner:
B1 4-11-2013 Copy of Rental agreement
B2 1-10-2015 Copy of Rental agreement
B3 27-9-2018 Copy of Rental agreement
B4 27-10-2018 Postal receipt
B4(a) 27-10-2018 Postal receipt
B5 24-11-2018 Reply notice
B6 17-2-2017 Certified copy of judgment in OS
184/2013 of Hon'ble Sub Court,
Alappuzha.
Witness for the Cr.Petitioner:
CPW1 24-2-2020 P.M.Hussain
CPW2 27-2-2020 A.S.Dasan
CPW3 4-3-2020 Anil Kumar B.
CPW4 23-6-2022 Adv.Anoop.S
Court Exhibits:
C1 18-5-2022 Commission report submitted by
Commissioner Advocate S.Anoop.
C1(a) 30-4-2022 Mahazar
Other Exhibits:
X1 - True copy of relevant page of
Assessment register of Alappuzha
Municipality.
X1(a) - True copy of relevant page of
Assessment register of Alappuzha
Municipality.
X2 26-2-2020 True copy of relevant page of
D&O Demand register of
Alappuzha Municipality for the
year 2019-2020.
X3 3-3-2020 Authorisation letter
X4 26-2-2020 True copy of notice
X5 11-4-2016 True copy of consent letter
X6 - True copy of consent letter
X7 13-2-2019 True copy of consent letter
X8 - True copy of relevant page of
D&O Demand register of
Alappuzha Municipality
X8(a) True copy of relevant page of
D&O Demand register of
Alappuzha Municipality for the
year 2019-2020.
X8(b) True copy of relevant page of
D&O Demand register of
Alappuzha Municipality for the
year 2019-2020.
X8(c) True copy of relevant page of
D&O Demand register of
Alappuzha Municipality for the
year 2019-2020."
6. Learned Rent Controller perused the materials
on record, particularly X7, the consent letter dated
13.02.2019 issued by the landlord in favor of a different
tenant of shop bearing No.26/210 which was rented out
after the issuance of the legal notice and prior to the
filing of the rent petition, but had intentionally not
disclosed this fact. Another document Ext.X8(b)
Register, whereby the Municipality demanded a sum of
Rs.25,100/- (Rupees Twenty five thousand one hundred)
from the tenant, inducted by way of consent letter dated
13.02.2019, who was carrying on the business of
hardware.
7. Considering the proviso to sub section 11(3) of
the Kerala Buildings (Lease and Rent Control) Act, 1965
(for short,'the Act'), which disables the landlord to seek
eviction on the ground of bona fide necessity, Rent
Controller dismissed the petition. As far as the arrears
of rent are concerned, during the pendency of the rent
petition landlord instituted a petition under Section 12 of
Act for determination of the rent, which was allowed and
the tenant as per the order had paid the rent. Since the
landlord was aggrieved of the order in rent petition
preferred RCA No.17 of 2019.
8. Lower appellate authority reversed the
findings of the Rent Controller and ordered eviction of
the tenant. Against the order of eviction of the appellate
authority, tenant preferred RCR.38/2024 whereas
landlord filed RCR.104/2024 since the appellate authority
did not give reason for non determination of the arrears
of rent.
9. Mr.T.Jayakrishnan, learned counsel appearing
on behalf of the tenant submitted that the findings of fact
and law rendered by the appellate authority are totally
perverse and erroneous for the reason that there has not
been a single whisper or reference to the consent letter
dated 13.02.2019 which proved the malafide intention of
the landlord. In case if there was a bona fide need, the
vacant room of the premises bearing No.26/210 rented
out after issuance of the legal notice and before filing of
the rent petition could have been occupied. It appears
that the plea of bona fide was applied to seek the
ejectment with an aim to obtain a higher market rent by
letting out again after the expiry of statutory period.
The arrears of rent as determined in pursuance to the
submission of the application have already been paid.
Tenant is not averse in clearing the arrears if any, if the
details of the arrears are submitted by the landlord. It is
settled law that the person who does not come to the
court with clean hands can be thrown out at any stage.
He submitted that the landlord has not been fair and
honest to the Court and in support of the contention,
relied upon the judgment of Supreme Court in
S.P.Chengalvaraa Naidu v. Jagannath (1994) 1 SCC
1.
10. On the other hand Mr.Sadchith, learned
counsel appearing on behalf of the landlord submitted
that the tenant failed to pay the rent of the subsequent
months giving cause to the landlord to file an application
for arrears of rent. However, the appellate authority did
not determine the same and it is in that background
revision has been filed.
11. As far as the contention of the tenant with
regard to the consent letter is concerned, though to a
specific question in the cross examination, it was
clarified that the premises bearing No.26/210 was of a
different dimension than 26/205 and therefore the need
set up was only for the area of scheduled building/shop
in dispute. There was no such pleadings with regard to
the vacant shop bearing No.26/210, but with regard to
the other shops for which no evidence has been placed
on record. Bona fide need has to be determined from the
mind set of the landlord and not from the tenant. In other
words, tenant cannot dictate the desire of the landlord to
be whimsical and fantasy and urged this Court for
dismissal of RC Revision No.38 of 2024.
12. We have heard learned counsel for the parties
and appraised the paper books.
13. Section 11(3) with proviso of the Act reads as
under:
"(3)A landlord may apply to the Rent Control
Court for an order directing the tenant to put
the landlord in possession of the building if he
bona fide needs the building for his own
occupation or for the occupation by any member
of his family dependent on him.
Provided that the Rent Control Court shall not
give any such direction if the landlord has
another building of his own in his possession in
the same city, town or village except where the
Rent Control Court is satisfied that for special
reasons in any particular case it will be just and
proper to do so;
Provided further that the Rent Control Court
shall not give any direct to a tenant to put the
landlord in possession if such tenant is
depending for his livelihood mainly on the
income derived from any trade, or business
carried on in such building and there is no other
suitable building available in the locality for
such person to carry on such trade or business;
Provided further that no landlord whose right to
recover possession under an instrument of
transfer inter vivos shall be entitled to apply to
be put in possession until the expiry of one year
form the date of such transfer;
Provided further that if a landlord after
obtaining an order to be put in possession
transfers his rights in respect of the building to
another person, the transferee shall not be
entitled to be put in possession unless he proves
that he bona fide needs the building for his own
occupation or for the occupation of any member
of his family dependent on him."
14. No doubt the Rent Controller is empowered to
accept the plea of the landlord in case it is reasonable,
even if there is availability of the vacant rooms or
buildings in the vicinity near the demised premises. In
the instant case, no doubt the tenant had taken an
objection with regard to the bona fide need of the
landlord and also renting out of certain shops. It is
settled law that the case is built during the evidence
stage, pleadings has to be concise and brief. Tenant was
able to bring on record Ext.X7 submitted to the
Municipality by summoning the witnesses, which was
proved without any objection qua mode of proof.
15. The consent letter is dated 13.02.2019. Legal
notice asking the tenants to vacate the premises is dated
07.11.2019, whereas, rent petition has been filed on
25.03.2019. The aforementioned reference of the dates
would reveal that the landlord had not been fair and
honest to the Court in disclosing whether the need had
been bona fide by giving some lame excuse, that is with
regard to the dimension of the tenanted premises and
other premises let out before institution of rent petition.
Ext.X8(b) is also a testimony whereby, the tenant
carrying on the business of hardware, in 2001 was raised
a demand of license fee. All these documents have been
considered by the Rent Controller but the appellate
authority abdicated in not noticing all these facts.
16. Thus, we are of the view that the finding of the
appellate authority is totally perverse. Accordingly set
aside the same and uphold the order of the Rent
Controller. As far as RC Rev No.104 of 2024 is
concerned, we give liberty to the landlord to claim the
arrears of rent in accordance with law. However, as an
interim measure, we call upon the tenant to pay the
arrears of rent by deducting the period for which the
rent had already been paid as per the order of the Rent
Controller during the pendency of the Revision.
RC Rev.No.38 of 2024 is allowed and RC Rev
No.104 of 2024 is dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
vv
