Kerala High Court
Moyarkandiyil Abbas vs Anilkumar on 7 July, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
R.C. Rev. No. 134/2023 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947
RCREV. NO. 134 OF 2023
AGAINST THE JUDGMENT DATED 20.03.2023 IN RCA NO.25 OF 2022 OF RENT
CONTROL APPELLATE AUTHORITY/ADDITIONAL DISTRICT COURT, VATAKARA ARISING
OUT OF THE ORDER DATED 05.02.2022 IN RCP NO.13 OF 2021 OF RENT CONTROL
COURT/MUNSIFF COURT, NADAPURAM
REVISION PETITIONER/RESPONDENT/PETITIONER:
MOYARKANDIYIL ABBAS, AGED 58 YEARS,
S/O MOOSSA HAJI,EDACHERY VILLAGE,IRINGANNOOR DESOM,
VATAKARA TALUK, KOZHIIKODE DISTRICT, PIN - 673 105.
BY ADV SRI.ZUBAIR PULIKKOOL
RESPONDENT/APPELLANT/RESPONDENT:
ANILKUMAR, AGED 46 YEARS, S/O ANANDHAN, VALIYAPARAMBATH
HOUSE, MOKERI VILLIAGE, DESOM P.O MOKERI,THALASSERY TALUK,
KANNUR DISTRICT, KERALA STATE, M.J AUTO ELECTRICALS,
IRINGANNOOR AMSOM DESOM, P.O IRINGANNOOR, VATAKARA TALUK,
KOZHIIKODE DISTRICT, PIN - 673 542.
BY ADVS.
SHRI.K.P.SUDHEER
SHRI.SHERRY M.V.
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
07.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C. Rev. No. 134/2023 :2:
2025:KER:49860
A.MUHAMED MUSTAQUE & JOHNSON JOHN, JJ.
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R.C. Rev. No. 134 of 2023
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Dated this the 7th day of July, 2025
ORDER
Johnson John, J.
The landlord is the revision petitioner. The order of the Rent
Control Court allowing eviction under Section 11(3) of the Kerala
Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short) was set
aside by the appellate authority and the same is under challenge.
2. According to the landlord, his son is an architect who does not
have any income or job and his son is depending on him for the petition
schedule building to start a business of sale of building construction
materials and to start a business consulting centre. The Rent Control
Court found that the need alleged is bona fide and that the tenant is not
entitled for the benefit of any of the provisos of Section 11(3) of the Act
and therefore, ordered eviction under Section 11(3) of the Act.
3. The appellate authority, though found that the son of the
landlord is a dependent, set aside the finding of the Rent Control Court
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regarding bona fide need by recording a finding that the need alleged is
bona fide. The appellate authority also found that the tenant is entitled
to the protection of the second proviso to Section 11(3) of the Act.
4. Heard both sides and perused the records.
5. Before the Rent Control Court, PWs 1 and 2 were examined and
Exhibits A1 and A2 were marked from the side of the landlord, and from
the side of the tenant, RW1 examined and Exhibits B1 to B8 were
marked.
6. PW1 is the son of the landlord and the appellate authority has
agreed with the finding of the Rent Control Court that PW1 is a
dependent of the landlord and that he is not in possession of any other
room for conducting the proposed business. As per the averments in the
Rent Control Petition, except the petition schedule room in the
possession of the tenant in the ground floor, the entire upstair portions
and the remaining rooms in the ground floor are in the possession of the
landlord and for the proposed business, the entire rooms in the ground
floor and the upstair portion are required. The appellate authority
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recorded a finding against the landlord regarding bona fide need on the
ground that it has come out during cross examination of PW1 that there
are other tenants against whom no steps are taken for eviction.
7. It is pertinent to note that the landlord has examined PW2, who
is now occupying another room in the building as tenant and his
evidence shows that he is ready to vacate the room on payment of
money offered by the landlord. Another ground recorded by the
appellate authority for rejecting the claim of bona fide need is that PW1
has admitted that a portion of the building is going to be acquired for the
purpose of Mattannur airport road. But, according to PW1, even in such
a contingency, he can conduct the proposed business in the remaining
area.
8. It is well settled that bona fide need is to be decided on the
basis of the state of affairs which existed as on the date of
commencement of lis. The fact that PW2 came into possession of one of
the rooms subsequently or that there is a proposal for acquisition of part
of the property for widening of a road, cannot be accepted as a ground
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to hold that there is no bona fide need. The specific averment of the
landlord in the eviction petition is that excluding the room in the
possession of the tenant in the ground floor, the entire upstair portion
and the remaining rooms in the ground floor are in his possession and
the entire rooms in the ground floor and upstair portion are required for
starting the proposed business.
9. The right of the landlord to conduct business cannot be denied
on the ground that there is a proposal for acquisition of property for
widening a road or that another person came into possession of another
portion of the building after the filing of the eviction petition. The
evidence of PW2 would clearly show that he has agreed to vacate the
premises as per the agreed terms between himself and the landlord.
10. Another finding of the appellate authority is that as per the
averments in the Original Petition, the intention of the son of the
landlord is to start a business of sale of building construction materials.
But, during cross examination, PW1 stated that he intends to start the
business of interior building materials and not construction materials. It
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is well settled that the concept of bona fide need or genuine requirement
needs a practical approach instructed by realities of life and the question
to be asked by the Judge of facts by placing himself in the place of the
landlord is whether in the given facts proved by the materials on record,
the need to occupy the premises can be said to be natural, real, sincere
and honest.
11. In this case, the landlord has clearly stated that his son
requires the premises for starting business in the building construction
material and consulting centre and only because PW1 has stated in cross
examination that he intends to conduct business in interior building
materials, that by itself cannot be taken as a ground to record a finding
that there is change in the proposed business, as the precise nature of
the business proposed to be conducted is not required to be stated in
the pleading and that is a matter for evidence. Therefore, we find that
the finding of the appellate authority regarding bond fide need is liable
to be set aside and that the finding of the Rent Control Court in this
regard is to be restored.
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12. The Rent Control Appellate Authority recorded a finding that
the tenant is entitled for the benefit of the second proviso to Section
11(3) of the Act. The specific case of the landlord is that the tenant is
not conducting any active business in the petition schedule room and he
is not depending on the income derived from the business for his
livelihood.
13. It is well settled that the burden is on the tenant to prove
both the ingredients of the second proviso to Section 11(3) of the Act. It
is pertinent to note that the tenant has not produced any document to
prove the turnover or net income from the business conducted in the
petition schedule room. In the absence of any satisfactory evidence to
show that the tenant is mainly depending on the income derived from
the business in the petition schedule room for his livelihood, the finding
of the appellate authority in this regard is also liable to be set aside.
14. In the result, this revision petition is allowed and the
judgment of the Rent Control Appellate Authority is set aside and that of
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the Rent Control Court allowing eviction under Section 11(3) of the Act is
restored.
However, the respondent/tenant is granted six months' time from
today to vacate the petition schedule room, on condition that he shall file
an unconditional undertaking before the Rent Control Court, within four
weeks from today, that he shall vacate the petition schedule room within
a period of six months and also shall pay the arrears of rent, if any,
within the aforesaid time limit and continue to pay the monthly rent till
he vacates the petition schedule room.
sd/-
A.MUHAMED MUSTAQUE,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
