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2020 DIGILAW 427 (KER)

Kandath Chekku Haji v. Munnamkavil Ashraf

2020-05-22

C.S.DIAS, K.HARILAL

body2020
ORDER : K. Harilal, J. 1. This rent control revision is directed against an order passed in R.C.A. No. 36/2013, by the Rent Control Appellate Authority, Tirur. The revision petitioner is the landlord who is confronting with an order, dismissing the rent control petition, on a finding that the same is barred under Section 15 of the Kerala Buildings (Lease and Rent Control) Act, 1965 [hereinafter referred to as 'the Act' for short]. Though he had preferred the aforesaid appeal, the rent control appellate authority also confirmed the findings of the rent control court and dismissed the same. Thus this revision is filed challenging the concurrent findings, whereby the rent control petition stands dismissed under Section 15 of the Act. 2. The revision petitioner had preferred R.C.P. No. 57/2012 against the respondent herein under Section 11(2), 11(3), 11(4)(ii) and 11(4)(iii) of the Act. The revision petitioner bona fide needs the plaint schedule shop room for conducting the business of grocery items and he has no avocation at present and he has financial capacity and ability to conduct the grocery business. He is in need of the plaint schedule quarters for the residence of his employees and also for storing articles. He has no other buildings of his own in his possession to start the proposed business. The respondent is not mainly depending upon the income from the business in the tenanted premises and also several other vacant rooms are available in the locality to shift his business. So the revision petitioner is entitled to get an order of eviction under Sections 11(3) of the Act. The respondent is using acid and other things in the plaint schedule shop room and the value and utility of the building has been reduced due to the careless act of the respondent. The respondent has made alterations and illegal constructions in the building. So he is entitled to get an order of eviction under Section 11(iv) (ii) of the Act. Though the rent was re-fixed @ Rs. 2,500/- per month from 01.05.2011 onwards as per the order of this Court in R.C.R. No. 77/2011, the respondent has kept the rent in arrears and he is liable to pay an amount of Rs. 58,670/- towards the arrears of rent. So he is entitled to get an order of eviction under Section 11(2) of the Act. 3. 2,500/- per month from 01.05.2011 onwards as per the order of this Court in R.C.R. No. 77/2011, the respondent has kept the rent in arrears and he is liable to pay an amount of Rs. 58,670/- towards the arrears of rent. So he is entitled to get an order of eviction under Section 11(2) of the Act. 3. The averments in the rent control petition can be summarised as follows: The plaint schedule building includes a shop room and quarters. Though the quarters was let out for residential purpose, the respondent has shifted his residence and let out the same to other persons for higher rent. The respondent is residing in the house bearing No. 1/41G of Tirur Municipality. The respondent has taken on lease another room also bearing No. 8/494B in a building owned by E.K. Hydru and E.K. Mamootty, which is situated near to the petition schedule shop room and the respondent and his wife are running a battery sales and service shop, by name, 'Charge Home' in that room. Though the revision petitioner has filed R.C.P. No. 19/2007 for eviction on the ground of bona fide need, the same was dismissed. The appeal and revision filed against the order also were dismissed due to technical reasons and insufficient pleadings. The circumstances have changed from that at the time of filing R.C.P. No. 19/2007. Hence he prayed for an order of eviction under Section 11(2), 11(3), 11(4)(ii) and 11(4)(iii) of the Act. 4. The respondent filed counter statement mainly contending that the present rent control petition is barred by Section 15 of the Act. Earlier R.C.P. No. 19/2007 and the present R.C.P. No. 57/2012 were filed on the very same grounds, without any change of circumstance. The revision petitioner has no bona fide need to start a new business and it is a ruse for eviction only. He is entitled to get protection under the proviso to Section 11(3) of the Act. The allegation that the respondent has refused to pay the rent and the rent is in arrears is not correct. According to the respondent, he used to send the rent by way of money order, but the revision petitioner refused to accept the same. So he is not entitled to get an order under Section 11(2) of the Act. The allegation that the respondent has refused to pay the rent and the rent is in arrears is not correct. According to the respondent, he used to send the rent by way of money order, but the revision petitioner refused to accept the same. So he is not entitled to get an order under Section 11(2) of the Act. He denied the allegation that he vacated the tenanted premises and sub-leased the same to a 3rd party and he used the building in such a manner so as to reduce the value and utility of the building materially and permanently. He denied the allegation that he has taken another rented building and started business under the name, 'Charge Home'. According to him, his father-in-law started a battery shop, by name, 'charge home' in the name of his wife and she is the licensee. He is depending mainly on the income derived from the business in the tenanted premises and no other building is vacant in that locality to shift his business from the tenanted premises. He has been residing in the quarters portion of the plaint schedule building and conducting business in the petition schedule shop room. It is highly necessary for him to reside in the quarters as he is doing work in the nearby plaint schedule shop room. Thus the revision petitioner is not entitled to get an order of eviction under Section 11(2), 11(3), 11(4) (ii) and 11(4)(iii) of the Act. 5. Heard Sri. Krishnanunni, the learned Senior counsel appearing for the revision petitioner and Sri. K. Ramachandran, the learned counsel appearing for the respondent. 6. The learned Senior counsel advanced arguments mainly focusing on the point that the findings of the courts below that rent control petition is barred by Section 15 of the Act is legally warranting interference of this Court under revisional jurisdiction. According him, there are sufficient evidence to show that there is a change of circumstance, after the institution of R.C.P. No. 19/2007, but the courts below miserably failed to appreciate the change of circumstances and the concurrent findings are perverse. 7. On the other hand the learned counsel for the respondent advanced arguments to justify the concurrent findings of the courts below that the rent control petition is barred by the provisions of res judicata under Section 15 of the Act. 7. On the other hand the learned counsel for the respondent advanced arguments to justify the concurrent findings of the courts below that the rent control petition is barred by the provisions of res judicata under Section 15 of the Act. According to him, absolutely there is no evidence to prove that there was a change of circumstances after the institution of the earlier R.C.P. No. 19/2007. 8. In view of the arguments across the bar, the questions to be considered are as follows: (i) Whether the concurrent findings of the courts below that the R.C.P. is barred by the provisions of res judicata under Section 15 of the Act is illegal and unsustainable. (ii) Whether the concurrent findings of the courts below that the revision petitioner has failed to prove the change of circumstance after the dismissal of earlier R.C.P. No. 19/2007 are perverse. 9. At the outset, we remind ourselves that the scope and extent of interference with the concurrent findings of the courts below is very limited and confined to legality, propriety and regularity only. The revisional court is not permitted to re-appreciate the concurrent findings of the courts below so as to arrive at a different finding, unless the findings of the courts below are perverse. Bearing the aforesaid legal proposition in mind, we have considered the questions raised above. 10. Admittedly, both RCPs are filed on the very same grounds i.e., under Section 11(2), 11(3), 11(4) (ii) and 11(4)(iii) of the Act. The earlier R.C.P. No. 19/2007 filed by the revision petitioner was dismissed. Though the revision petitioner had preferred appeal and revision, they were also dismissed. According to the revision petitioner R.C.P. No. 19/2007 was dismissed on technicality due to lack of pleadings and there is a change of circumstance after the dismissal of the said RCP. We have gone though Exts. B1 to B3, the orders and judgments passed earlier, and we find that the said contention is not true or correct. They were dismissed concurrently on merits. Hence, we reject the said contention. 11. Secondly, it is contended that the respondent vacated the residential quarters and sub-let the same to some other person and now the respondent is residing in the house bearing No. 41G of Ward No. 1 of Tirur Municipality, which stands in the name of the respondent's wife. They were dismissed concurrently on merits. Hence, we reject the said contention. 11. Secondly, it is contended that the respondent vacated the residential quarters and sub-let the same to some other person and now the respondent is residing in the house bearing No. 41G of Ward No. 1 of Tirur Municipality, which stands in the name of the respondent's wife. When the revision petitioner was examined as RW1, he himself admitted that the respondent is residing in the plaint schedule quarters and he does not know the identity of the person, who is now allegedly residing in the plaint schedule quarters. Absolutely no other evidence has been adduced to show that now the respondent is residing in house No. 41G of Ward No. 1 of Tirur Municipality and the plaint schedule quarters had been let out to some other person. 12. On the other hand, Exts. C1 and C2 report and sketch submitted by the Commissioner shows that the household articles of the respondent were found inside the plaint schedule quarters at the time of his inspection. More importantly, there is no specific pleadings, which would prove the identity of the person to whom the plaint schedule quarters was sub-let. Thus, the revision petitioner failed to prove that after the dismissal of R.C.P. No. 19/2007, the respondent has vacated the plaint schedule quarters and has sub-leased the same to some other person and now the respondent is residing in house No. 41G of Ward No. 1 of Tirur Municipality as pleaded by him. 13. Thirdly, it is contended that now there is no need to conduct battery sales and service in the plaint schedule shop room as the respondent has taken another shop room bearing No. 8/494-B on lease in a building owned by E.K. Hydru and E.K. Mamooty and he is conducting the battery sales and service shop along with his wife in that shop room. This contention is seen raised in the earlier R.C.P. No. 19/2007 and got rejected due to lack of evidence. In this case also the revision petitioner has not produced any evidence to prove that the respondent has taken the aforesaid shop room on rent and he is conducting the battery sales and service shop in that shop room. On the other hand, Ext. In this case also the revision petitioner has not produced any evidence to prove that the respondent has taken the aforesaid shop room on rent and he is conducting the battery sales and service shop in that shop room. On the other hand, Ext. A9 licence shows that the respondent's wife is the licensee of the business in building No. 8/494-B. No evidence has been produced to show that though licence stands in the name of respondent's wife, actually the respondent is conducting the business. 14. Fourthly, it is contended that in R.C.P. No. 19/2007, the bona fide need projected was for starting a textile shop; whereas the bona fide need projected in the present petition is for starting a grocery shop. But Ext. B1, copy of the order passed in R.C.P. No. 19/2007, shows that the prayer for eviction under Section 11(3) of the Act, was dismissed on the ground that the need projected was not a bona fide one. As rightly observed by the courts below merely on the reason that the nature of business is changed, it cannot be presumed that there is a change of entire circumstance after the dismissal of earlier R.C.P. No. 19/2007. More importantly, there is no explanation for changing the nature of business from textile shop to grocery shop. The revision petitioner further stated that he has filed the present R.C.P. as the earlier R.C.P. filed by him was dismissed due to his inexperience in conducting the case. We are of the opinion that judicial proceedings before the court of law can never be an experimental exercise, one by one, till attaining the victory. Moreover, it is found in Ext. B1 that the revision petitioner has got three other shop rooms and quarters in his possession for doing the proposed business. In the above view we find that there is no illegality in the findings that the revision petitioner has miserably failed to prove the change of circumstance to file the present R.C.P. under Section 11(3) of the Act. 15. The revision petitioner has sought for eviction under Section 11(4)(ii) of the Act on the ground that the respondent has been using the building in such a manner so as to destroy or reduce the value of the building, materially and permanently. 15. The revision petitioner has sought for eviction under Section 11(4)(ii) of the Act on the ground that the respondent has been using the building in such a manner so as to destroy or reduce the value of the building, materially and permanently. In the earlier R.C.P. No. 19/2007 also eviction was sought under Section 11(4)(ii) of the Act on the very same ground and got rejected. There is no pleadings or evidence to prove that after the dismissal of R.C.P. No. 19/2007, the respondent has reduced the value and utility of the building more than what was pleaded and proved in the earlier R.C.P. No. 19/2007. 16. In the earlier R.C.P. No. 19/2007, eviction was declined under Section 11(4)(ii) of the Act on the ground that the revision petitioner has failed to adduce any kind of evidence to show that the respondent has used the building in such a manner so as to destroy or reduce the value of the building, materially and permanently. There is no specific pleadings in the present petition that the value and utility of the building were reduced by the act of the respondent, after the dismissal of earlier R.C.P. No. 19/2007. In Ext. C1 report, the commissioner has reported that there are some cracks on the walls of the building and the flooring was found damaged. But the revision petitioner has not produced the commission report in earlier R.C.P. No. 19/2007, to prove more damages, if any, after the dismissal of R.C.P. No. 19/2007. Thus, there is no evidence to prove that the damages to the floor or cracks to the wall were occurred after the dismissal of the earlier R.C.P. No. 19/2007. Thus, the revision petitioner has failed to plead and prove any change of circumstance, after the dismissal of the earlier R.C.P. No. 19/2007, to seek eviction under Section 11(4)(ii) of the Act. 17. Coming to the ground under Section 11(4)(iii) of the Act, there is no pleadings to the effect that the respondent has acquired possession of room No. 8/494-B at Elamkulam, after the dismissal of R.C.P. No. 19/2007. So also there is no evidence to show acquisition of any building, after the dismissal of R.C.P. No. 19/2007. 17. Coming to the ground under Section 11(4)(iii) of the Act, there is no pleadings to the effect that the respondent has acquired possession of room No. 8/494-B at Elamkulam, after the dismissal of R.C.P. No. 19/2007. So also there is no evidence to show acquisition of any building, after the dismissal of R.C.P. No. 19/2007. So, there is no illegality in the concurrent findings of the courts below that the revision petitioner failed to prove any change of circumstance, after the dismissal of R.C.P. No. 19/2007, to seek an order of eviction under Section 11(4)(iii) of the Act also. 18. In the above analysis, we find that there is no illegality or perversity in the concurrent findings of the courts below that the present RCP is barred by Section 15 of the Act. Hence, this rent control revision is dismissed.