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2017 DIGILAW 1437 (KER)

Riyas v. Muhammed Nazar

2017-11-22

A.M.BABU, K.HARILAL

body2017
ORDER : K. Harilal, J. This revision petition has been filed by the tenant challenging the judgment passed by the Appellate Authority confirming the order of eviction passed by the Rent Control Court under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short). The rent control petition was filed on the ground that the landlord bonafide needs the petition scheduled shop room for starting a furniture showroom and he has no other vacant shop room of his own for starting the said business and several other shop rooms are available in the locality to shift the business of the tenant. 2. The tenant resisted the said application contending that the need projected in the petition is a ruse for eviction and he is entitled to get protection under Section 11 (3) of the Act. Both parties adduced evidence on the aforesaid rival contentions and after considering the evidence on record, both the courts concurrently found that the need projected is bonafide and respondent is not entitled to get protection under the second proviso under Section 11(3) of the Act. The legality and propriety of the aforesaid finding is under challenge in this Rent control revision petition. 3. This revision has been filed mainly on the ground that before the Appellate Authority, the tenant has filed an interlocutory application as I.A. No.1134 of 2017 to appoint a Commission to ascertain and report the non-availability of other alternative building in the locality for shifting his business and also for ascertaining the fact that after the disposal of the rent control petition, by granting an order of eviction in favour of the landlord, the landlord has got vacant possession of three other rooms of his own from three other tenants and thereafter he has been occupying the said rooms by conducting the business of T.V., fridge and home appliances etc. 4. The landlord resisted the said application contending that the subsequent events have no fundamental impacts on bonafides of the need. However, after considering the application and objection raised by the landlord, the Appellate Authority dismissed the said application. 5. According to the learned counsel for the petitioner, the matters sought to be ascertained in the aforesaid Commission Application have fundamental impact on the bonafides of the need projected in the petition. However, after considering the application and objection raised by the landlord, the Appellate Authority dismissed the said application. 5. According to the learned counsel for the petitioner, the matters sought to be ascertained in the aforesaid Commission Application have fundamental impact on the bonafides of the need projected in the petition. Therefore, the Appellate Authority ought to have allowed the Commission Application and assessed the impact of the subsequent events on the bonafides of the need, for which an order of eviction was passed earlier, by the Rent Control Court, on the basis of the report to be filed by the Commissioner. In order to substantiate the above contention, the tenant has produced a copy of I.A.No.1134 of 2017 and the order passed by the Appellate Authority on the said application. 6. We have meticulously considered the averments in the application and the order passed by the Appellate Authority on the said application. It is averred that after passing of the order of eviction under Section 11(3) of the Act, the landlord has got vacant possession of three other rooms, which were rented out to other tenants and he has started a business of T.V., fridge, home appliances etc. in those three rooms. Further, it is averred that no other vacant buildings are available in the locality to shift his business from the tenanted premises. Thus, the Commission Application was intended to ascertain the occupation of other three more rooms by the landlord himself, after passing the order of eviction and the non-availability of other rooms in the locality. 7. Coming to first contention, we find that the tenant himself admitted that after getting vacant possession of three other rooms the landlord himself occupied those rooms by starting a business of T.V., fridge and home appliances etc. Thus, it stands undisputed that the landlord himself occupied the vacant rooms, which he got subsequently, by starting the business of home appliances. It is trait law that the subsequent events having fundamental impact on the bonafides of the need alone can be looked into during the appellate stage also. Therefore, the first question to be considered is, whether the subsequent event as averred in the Commission Application has any fundamental impact on the bonafide need. It is trait law that the subsequent events having fundamental impact on the bonafides of the need alone can be looked into during the appellate stage also. Therefore, the first question to be considered is, whether the subsequent event as averred in the Commission Application has any fundamental impact on the bonafide need. As we observed above, the tenant himself admitted that after getting vacant possession of the other rooms, the landlord himself had occupied the said shop room by starting a business of home appliances. 8. We are of the opinion that if the landlord got vacant possession of other rooms and he himself has occupied those vacant rooms, which he had obtained, after passing the order of eviction, for conducting or expanding his own another business, the said event has no fundamental impact on the bonafide need projected in the petition. Whereas, if he had kept the said room vacant or rented out to other tenants that would have been a subsequent event having fundamental impact on the bonafides of the need; but in the instant case, the tenant has no such case. In the above view, the Appellate Authority is justified in rejecting the application seeking an order appointing a Commission. We do not find any illegality or impropriety in this respect. 9. Coming to non-availability of alternative buildings in the locality, we are of the opinion that non-availability of alternative vacant buildings in the locality is a fact in dispute on the date of filing the rent control petition and in the appellate stage, the same has no relevance or significance. In other words, it is a fact in issue for which evidence could have been adduced before the Rent Control Court and at the appellate stage no enquiry can be conducted in this respect. 10. In the above analysis, we find that there is no illegality or impropriety in the order passed by the Rent Control Appellate Authority in I.A. No.1134 of 2017 in R.C.A. No.22 of 2015. No other point has been raised before us in this revision. Therefore, this Rent Control Revision will stand dismissed.