Kerala High Court

Muhammed Koya vs Abdul Razak on 14 November, 2024

Author: Amit Rawal

Bench: Amit Rawal

                                                       2024:KER:85771

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                  &

             THE HONOURABLE MR. JUSTICE EASWARAN S.

 THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946

                     RCREV. NO. 154 OF 2023

        AGAINST THE ORDER DATED 23.03.2023 IN RCA NO.49 OF 2023

 OF ADDITIONAL DISTRICT COURT, KOZHIKODE / I ADDITIONAL MACT,

  KOZHIKODE ARISING OUT OF THE ORDER DATED 26.03.2022 IN RCP

    NO.79 OF 2016 OF ADDITIONAL MUNSIFF COURT ,KOZHIKODE-II

REVISION PETITIONERS/RESPONDENTS/PETITIONERS:

    1      MUHAMMED KOYA,
           AGED 74 YEARS
           S/O. CHATHANKANDIYIL PARAPPURATH AVARAN KOYA HAJI,
           KUNNAMANGALAM VILLAGE, KARANTHUR DESOM, P.O
           KARANTHUR, KOZHIKODE, PIN - 673571
    2      DR. JAMEELA,
           AGED 65 YEARS
           W/O. MUHAMMED KOYA, CHATHANKANDIYIL PARAPPURATH,
           KUNNAMANGALAM VILLAGE, KARANTHUR DESOM, P.O
           KARANTHUR, KOZHIKODE, PIN - 673571

           BY ADVS.
           P.B.SUBRAMANYAN
           P.B.KRISHNAN
           SABU GEORGE
           MANU VYASAN PETER
RESPONDENTS/APPELLANTS/RESPONDENTS:

    1      ABDUL RAZAK,
           AGED 55 YEARS
           S/O. KANHIRATHAMPOYIL USMAN, KODUVALLY AMSOM,
           DESOM, KODUVALLY PO, THAMARASSERY TALUK,
           KOZHIKODE DISTRICT, PIN - 673572.
 RC Rev.No.154 of 2023
                                      2

                                                           2024:KER:85771

     2       ABDUL NASAR,
             S/O. MUPPILADI PURAYIL AHAMMED HAJI,
             NARIKKUNI AMSOM, DESOM, PO NARIKKUNI,
             KOZHIKODE TALUK AND DISTRICT, PIN - 673585.


             BY ADVS.
             FIROZ K.M.
             M.SHAJNA(K/1017/2006)



      THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON   14.11.2024,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 RC Rev.No.154 of 2023
                                       3

                                                              2024:KER:85771




               AMIT RAWAL & EASWARAN.S, JJ.
            ---------------------------------------------------
                      RC Rev. No.154 of 2023
            ----------------------------------------------------
          Dated this the 14th day of November, 2024


                                 ORDER

Amit Rawal, J.

Present revision petition is directed against the

judgment and decree dated 23.03.2023 of the rent control

appellate authority in RCA No.49/2023 preferred by the

respondent-tenant against the judgment and decree dated

26.03.2022 in RCP No.79 of 2016, whereby, the respondents-

tenants were ordered to be ejected on the ground of arrears

of rent provided under Sections 11(2)(b) and bonafide

necessity under Section 11(3) of the Kerala Buildings (Lease

and Rent Control) Act, 1965. (in short '1965 Act').

2. The case set out by the petitioner-landlord in the

aforementioned rent petition was that the respondent was

inducted as a tenant into the tenanted premises in 2005 with

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a different rate of rent. However, from 04.10.2013, rent was

revised at the rate of Rs.9,500/- per month. Owing to the

occurrence of the subsequent events, in 2016, the cause of

action accrued on two grounds, firstly the tenant had stopped

paying the arrears of rent and also on the ground of personal

necessity i.e., out of two rooms, one room was required by the

first petitioner to start furniture business and the second

petitioner was in need of another room to start a Clinic and a

laboratory.

3. Before the institution of the rent petition, ibid, legal

notice was sent, calling upon the respondent-tenant to vacate

the premises though the document by virtue of which the rent

was revised was termed as license, but in fact, it had the

trappings of all the provisions of tenancy. The

aforementioned notice was replied by the respondent -

tenant, vide reply dated 01.10.2015, and the averments qua

license was emphatically denied and it was categorically

stated that, it was a tenancy. On the aforementioned

pleadings, rent petition was filed by the landlords which was

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opposed by the respondent - tenant on the ground that the

petition was not maintainable much less the bonafide was

also denied. It was pleaded that it was a licence arrangement

at the rate of Rs.9500/- and an advance amount of

Rs.3,60,000/- was also paid and therefore, the rent controller

would not have the jurisdiction to try and entertain the

petition.

4. Since the parties were at variance, learned Rent

Controller framed the following issues:

i) whether the agreement between petitioners and respondents is a lease or license?

ii) whether the petitioners are entitled to get relief under section 11 (3) of the Act?

5. Both the parties in support of their respective

stands, had brought on record the following documents,

besides examining themselves as PW1 and RW1.

Petitioner's witness:

PW1 03-03-2022 C.P.MuhammedKoya, S/o.C.P.AvaranKoyaHaji.

Petitioner's exhibits:

A1 06-11-2015 Copy of lawyer's notice issued by Advocate M.Jamaludheen to Abdul Razack and Abdul Nasar.




                                                        2024:KER:85771

     A1(a) 06-11-2015    Postal receipt.
     A1(b) 07-11-2015    Acknowledgment card
     A2 12-11-2015      Reply of lawyer notice sent by Advocate

K.M.Musthafa to Advocate M.Jamaludheen.

Respondent's witness:

RW1 22-03-2022 Abdul Nasar, S/oAhammedHaji. Respondent's exhibits:

B1 26-09-2015 Registered lawyer notice issued by Advocate M. Jamaludheen to Abdul Razack and Abdul Nasar.

     B1(a) 26-09-2015         Postal receipt.
     B1(b)      -            Postal cover.
     B2     01-10-2015     Reply lawyer notice sent by Advocate

K.M. Musthafa to Advocate M.Jamsludheen.

     B2(a) 03-10-2015         Postal receipt
     B2(b) 05-10-2015         Acknowledgment card.
     B3    12-11-2015      Reply lawyer notice sent by Advocate

K.M. Musthafa to Advocate M.Jamaludheen. B3(a) 14-11-2015 Acknowledgment card.

     B3(b) 13-11-2015         Postal receipt.
     B4             -         Photograph.
     B4(a)          -        Photograph.
     B4(b)          -        Photograph.
     B4(c)          -     Bill of Phototec, photostudio, Kozhikode.
     B4(d)      -            CD.


     6.      Learned    Rent       Controller   based    on    the

aforementioned rival contentions, ordered         eviction on the

ground of arrears of rent and personal necessity as provided

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under Sections 11(2)(b) and 11(3) respectively, holding that it

was tenancy and not a license agreement.

7. The respondent - tenant, against the

aforementioned judgment and decree of the rent controller,

preferred an appeal. Section 18 of the 1965 Act envisages a

condition to be complied with at the instance of the appellant-

tenant, to clear all the arrears of the rent, in case the eviction

has been ordered on the ground of the arrears of rent. But the

said condition was not complied with, impelling the petitioner-

landlord to submit an application under subsection (1) of

Section 12 of the 1965 Act. The aforementioned application

was objected to by the respondent - tenant.

8. Learned appellate authority, while adjudicating the

application, held the appeal to be not maintainable on the

ground that the relationship between the parties was not of a

landlord and tenant but of a licensor and a licensee, and

therefore the remedy lied elsewhere, i.e. to seek the

possession either under the provisions of Section 34 or

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Section 39 of the Specific Relief Act.

9. Mr. S.P Balakrishnan Iyer, learned Senior Counsel

assisted by Mr. P. B. Subramanyam, learned counsels

appearing on behalf of the petitioners submitted that the

appellate authority, while adjudicating the application under

Section 12(1), committed material illegality and perversity in

allowing the appeal by holding that the rent petition was not

maintainable on the ground that the relationship between the

petitioner and the respondent was of licensor- licensee, which

is totally against the documentary evidences as well as the

candid admission made by the tenant. In this regard, our

attention has been drawn to the reply to legal notice as well

as to the deposition of RW1 in the cross examination. That

was enough for the court to form an opinion regarding the

maintainability of rent petition and therefore, there is an

abdication. Even otherwise, the appeal was not maintainable

as the tenant had failed to clear the arrears as per the

mandatory requirements of Section 18 of the 1965 Act.

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10. On the other hand, Mr.Firoz, learned counsel

appearing on behalf of the respondent-tenant controverted

the arguments of the learned Senior Counsel and contended

that no doubt, the agreement alleged to be of license had not

seen the light of the day but conduct of the parties reveal

that they were licensor and licensee and the candid

averments in the objection petition with regard to the

payment of advance amount of Rs.3,60,000/- and the license

fee fixed in 2013 were not emphatically denied by any

rejoinder or replication.

11. The objection qua maintainability was taken in the

first instance but the Rent Controller did not adjudicate the

same, therefore there is an abdication, rightly so, the

appellate authority, being the last court of fact and law,

examined the aforementioned legal controversy and decided

in favor of the respondent - tenant. Since the relationship of

licensor- licensee has been established, there was no question

of deposit of arrears of rent as the compliance of Section 18

was not warranted.

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12. We have heard the learned counsels for the parties

and appraised the paperbook.

13. Learned Rent controller, while allowing the rent

petition, in paragraph 9 and 10 of the judgment observed as

under:

"9. 1st petitioner was examined PW1. He filed affidavit in lieu of examination in chief. Petition schedule premises was leased to respondents for a monthly rent of Rs.7,000/- from April 2005 and Rs.3,60,000/-, was also fixed as security deposit. The same was entrusted to the power of attorney holder the professor Parappurath P. Koya. Since October 2013 the rent was increased to Rs.9,500/-. Since March 2016 respondents have not paid the rent and an amount of Rs.6,65,000/- is due from respondents. Rent amount was never adjusted towards the security deposit. Petition schedule premises is required by PW1 to start furniture business. He is a retired government servant and does not have an income on his own at present. There are no other vacant shop room in possession of the petitioners. Respondents are not dependent upon their livelihood from the income derived from the business conducted by them in petition schedule premises. The building near medical college is not vacant and PW1's son doctor Jaseem is conducting scan and laboratory therein. PW1 produced Ext.A1 series which is advocate notice, acknowledgment card and postal receipt. Ext.A2 is the reply notice. In the cross examination of PW1, he deposed that petition schedule premises belongs to him. Since 2016 he is not working. He further deposed that he intents to start furniture business of his own in the petition schedule premises. Nothing was brought out in the cross examination of PW1 to disbelieve his

2024:KER:85771

version.

10. 2nd respondent was examined as RW1. He filed affidavit in lieu of examination in chief. The agreement entered between them, is not a lease but a license and the petition is not maintainable. Rent amount was adjusted toward the security deposit. The rent has been paid to 2nd petitioner. The facts stated in the Ext.A2 is correct. RW1 has been conducting the business of tiles in petition schedule premises since 1/4/2005. RW1 is dependent upon his livelihood from the income derived from the business conducted by him in petition schedule premises. There are other vacant shop rooms in the possession of petitioners. This petition is filed only as a ruse to evict respondents from petition schedule premises. In the cross examination he deposed that the agreement entered by him is a lease and he is paying rent. He further deposed that he has no objection to the nature of agreement and therefore, whether the agreement is a lease or license does not need further elaboration. He further deposed that till December 31 he has paid the rent and produced the vouchers. He further deposed that the bonafide need projected by PW1 is false and he has other building in his possession and he was in government service at UAE. From the cross examination it is seen that he has other godowns and there is another shop at Kunnamangalam under the name of Tiles world marketing whole sale distributor in the possession of RW1. He further deposed that he has a shed at Narikkuni road. From the cross examination of RW1 it is seen that RW1 is not dependent upon his livelihood from the income derived from the business conducted by him in petition schedule shop room. It has not been proved by RW1 that there are other vacant shop rooms in the possession of the petitioners. Though RW1 stated that he has paid rent but no voucher has been produced. Despite receipt of Ext A1 notice RW1 failed to pay the rent and hence relief can be granted under section 1..(2)(b) of the Act. Hence, point No.1 found in affirmative."

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14. Whereas the appellate authority, while non suiting

the petitioner-landlord, recorded the following findings in

Paragraph 19, holding the rent petition to be not

maintainable.

"19. In this case also, the specific case of the petitioners is that the respondents are only licencees, but in view of the contentions of the respondents that they are building tenants and not licencees, in order to avoid dispute they accept the respondents' contention that they are building tenants. Though Paragraph No.2 and a portion of Paragraph No.3 of the rent control petition was amended, there is no pleadings to the effect that though the agreement is styled as a licence agreement, they had really intended the transaction that was brought into existence to be a lease. The petitioners have no case that the real intention, while executing the agreement dated 04.10.2013 was in fact to bring a lease into existence. As there is no pleading or evidence to show that the real intention of the parties while executing the agreement dated 04.10.2013 was in fact to bring a lease into existence, solely on the reason that the appellants contention in the reply notice that they are building tenants, is accepted by the respondents to avoid dispute and instituted rent control petition before the Rent Control Court, does not change the character of the transaction entered into between the parties. So the rent control petition is not maintainable and hence, the impugned order passed by the Rent Control Court is liable to be set aside."

15. It is intriguing to notice that the aforementioned

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findings were not based upon the appreciation of oral as well

as the documentary evidences. On going through the reply

legal notice, respondent- tenant had categorically denied the

relationship of a licensor - licensee but admitted that the

relationship was of a landlord-tenant and governed by the

relevant rent laws. This fact has not been denied when the

contents of the notice were read during the course of the

hearing. Similarly, the candid admission made by the tenant in

the cross examination was also read out to us. The

aforementioned two material aspects have totally been