Mariyumma vs James

Pius C. Kuriakose, J.—Under challenge in this revision filed by the landladies, who were co- owners of the petition schedule building, a small room on the Canal Road with direct frontage to Banerji road, is the judgment of the Rent Control Appellate Authority dismissing the petition for eviction after interfering with the order of eviction passed by the Rent Control Court under Sub-section (3) of Section 11.

The need projected by the three landladies was that the room is needed bona fide for occupation by Jameela, the 2nd revision Petitioner, so that she can conduct a tailoring business. Disputing the bona fides of the need, the tenant who is conducting business in the name and style of "Pets Paradise" (sale of pet birds, rabbits, etc.) claimed the protection of the second proviso to Sub-section (3) of Section 11. Before the Rent Control Court the evidence consisted of Exts.A1 to A5, B1 to B1 series of photographs, Ext.C1 commission report and the oral evidence of PW1, and R Ws1 to 5. On appreciating the evidence, particularly the oral evidence adduced by PW1 (Smt. Jameela) the Rent Control Court concluded that the need is bona fide. That court further concluded that the tenant was unsuccessful in proving that he satisfied the two ingredients of the second proviso to Sub-section (3) of Section 11. Accordingly, order of eviction was passed.

The Appellate Authority under the impugned judgment on making a reappraisal of the evidence would reverse the finding of the Rent Control Court regarding the bona fides of the need. According to the learned Appellate Authority, the evidence adduced on behalf of the tenant was sufficient to uphold his contention that the petition schedule room is not big enough to accommodate tailoring business. The Appellate Authority also noticed that during the pendency of the proceedings, another room belonging to the three landladies had fallen vacant and the landladies had suppressed the availability of that room in their vacant possession from the Rent Control Court. This, according to the Appellate Authority, disentitled the revision Petitioners to relief at the hands of the Rent Control Court. Accordingly, the Appellate Authority set aside the finding regarding the bona fides of the need. Though the finding that the tenant is not entitled for the protection of the second proviso was not vacated, the Appellate Authority allowed the appeal and dismissed the Rent Control petition.

In this revision u/s 20, various grounds are raised challenging the judgment of the Appellate Authority. Sri. P.U. Ziyad learned Counsel for the revision Petitioners addressed us on the basis of all those grounds raised. According to Mr. Ziyad, the appreciation of the evidence by the learned Appellate Authority was not proper. The landladies, who are co-owners, had earmarked the petition schedule building for the second revision Petitioner Jameela to conduct a tailoring business. It had become evident that Jameela had no business or other avocation. It had also become evident that she knew tailoring. The Appellate Authority was not expected to sit in the judgment over the wisdom of the landladies to conduct tailoring business in the building belonging to them. It is a small scale tailoring business which is intended to be conducted. If Jameela does not occupy the building and conduct tailoring business therein, Sub-section (12) of Section 11 will come to the rescue of the Respondent tenant. The vacancy of another room during the pendency of the proceedings cannot have any impact in the present case as the other room did not belong absolutely to Jameela, the needy person. Smt. Jameela was only a co-owner. It is true that in respect of the petition schedule room also Jameela is a co-owner. But, the other two co-owners are agreeable in Jameela occupying the petition schedule room. There is no such agreement in respect of the room which fallen vacant during the pendency of the proceedings. The principle laid down by a Division Bench of this Court in Asher Vs. Hassankutty Hajee, should not have been ignored by the Appellate Authority, so submitted the learned Counsel.

All the submissions of Mr. Ziyad were opposed stoutly by Sri. A.T. Anil Kumar learned Counsel for the Respondent/tenant. Mr. Anil Kumar submitted that the petition schedule building is too small to accommodate even one sewing machine. The idea of Jameela conducting tailoring business is not at all workable. The learned Counsel pointed out that if there was bona fides in the need projected by the landladies, Jameela could have occupied the other building which had fallen vacant during the pendnecy, as she was as much a co-owner as she is in respect of the present building. Mr. Anilkumar submitted that the finding in the context of the second proviso notwithstanding, it is a fact that the pet business being conducted by the Respondent is the sole means of his livelihood. The landladies are very affluent persons and they can accommodate the Respondent in any one of the other rooms in the larger building which belongs to them. At this juncture, Sri. Ziyad would intervene and submit that there is a proposal to demolish and reconstruct a substantial portion of the larger building excluding the petition schedule building earmarked for Jameela. At this juncture we enquired of Mr. Ziyad whether his client be preferred to accommodate the Respondent in one of the rooms in the above building. As directed by us, affidavit dated 9/6/2011 was filed by Jameela, the prospective occupant of the petition schedule room. In that affidavit it is stated that three landladies, who are co-owners, proposed to reconstruct a portion of the existing building by utilising the properties belonging to their brother which is also situated on the southern side. The affidavit goes on to state as follows;

... To finalise the proposal and work out details, it will take at least one year from now and the construction is expected to be completed within 3 years there from.

After the completion of the construction, I agree that along with the other co- owners/Petitioners a room with an area of not less than 100 sq. ft. shall be offered to the Respondent/tenant to let it out to him on the then existing rent.

On reading of the affidavit it is clear to us that this affidavit is filed on behalf of the other three Petitioners also. In fact, we are told by Mr. Ziyad that all the three landladies have filed separate affidavits. The Registry will incorporate the three affidavits as part of the records in the Rent Control revision. Mr. Ziyad submitted that the Petitioners'' brother Mr. Musthafa is also ready to file an affidavit before the Execution Court in the lines of affidavits filed by his sisters agreeing with the proposal of the sisters to put up a new shopping complex.

Having considered the rival submissions addressed before us and having scanned the judgment of the Appellate Authority and keeping in mind the relevant statutory provisions and binding judicial precedents pertaining to Sub-section (3) of Section 11, we are of the view that the learned Appellate Authority was not justified in interfering with the finding of the Rent Control Court regarding the bona fides of the need. May be the petition schedule room is a small one. But, there was no reason to discard the evidence of PW1, Jameela, that room is sufficient for her to conduct tailoring business in a small scale. It is true that another building belonging in common to three landladies fell vacant during the pendency of the proceedings. But, according to us, the non occupation of that room by Jameela cannot be a circumstance militating against the bona fides of the need projected by Jameela in this case. Jameela is not the absolute owner of that building. There was consent from her co-owners for her occupation of only the petition schedule building. There is no similar consent from the co-owners for Jameela to occupy the other room. The principles laid down by the Division Bench of this Court in Asher v. Hassankutty Hajee (cited supra) should have decided the issue in favour of the landladies. We also notice Sub-section (12) of Section 11, which should come to the rescue of the Respondent if it is seen that Jameela is not occupying the petition schedule building for conducting tailoring business.

Though eviction order is being passed under Sub-section (3) of Section 11, and not u/s 11(4)(iv) of the Act, we have already recorded the affidavits filed by the three landladies wherein they have undertaken to allow the room having a minimum extent of 100 sq.feet in the building which they propose to put up by utilising their brother's land also. We find force in the submission of Mr. Anil Kumar that four years is too long period for completion of the construction of the proposed shopping complex. According to us, the Petitioners should be able to complete the construction of the ground floor of the proposed shopping complex within a period of two years of their obtaining surrender of the petition schedule building from the Respondent/tenant.

Accordingly, we dispose of the revision petition issuing the following orders and directions;

i) The judgment of the Appellate Authority is set aside and the order of eviction passed by the Rent Control Court is restored.

ii) If it is noticed by the Respondent that Jameela (PW1) has not started tailoring business in the petition schedule building within a period of one month of her getting vacant possession of the petition schedule building, it is open to the Respondent to invoke the provision of Sub-section (12) of Section 11 for appropriate relief.

iii). The revision Petitioners are directed to complete the ground floor of the proposed shopping complex within a period of two years of their getting vacant possession of the petition schedule building and to allow one room having a minimum extent of 100 sq. feet to the Respondent subject to the liability of the Respondent to pay fair rent to the revision Petitioners. This order is being passed on the basis of the affidavits filed by the landladies before this Court and also on the affidavit which the RCR. No. 242/2008 10 landladies'' brother is directed to file before the Execution Court.

iv). The Execution Court is directed not to order delivery of the petition schedule building for a period of six months from today subject to the following conditions;

a). The Respondent/tenant shall pay the rent which has fallen due in respect of the building since December 2007 together with interest at the statutory rate of 6% p.a. within two months from today.

b). The Execution Court is directed further not to order delivery unless Musthaffa, the brother of the landladies, also files an affidavit in the lines of the affidavits filed by his sisters the landladies before this Court.