Sreenilayathil Lekha Ramachandran vs Othayoth Rukhiya

Kerala High Court

Sreenilayathil Lekha Ramachandran vs Othayoth Rukhiya on 20 May, 2024

Author: Amit Rawal

Bench: Amit Rawal

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                       &
                THE HONOURABLE MR. JUSTICE EASWARAN S.
         MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                          RCREV. NO. 224 OF 2022
AGAINST THE JUDGMENT DATED 11.08.2022 IN RCA NO.58 OF 2021 OF RENT
  CONTROL APPELLATE AUTHORITY/ADDITIONAL DISTRICT COURT, VATAKARA
 ARISING OUT OF THE ORDER DATED 23.09.2021 IN RCP NO.91 OF 2015 OF
              THE RENT CONTROLLER/MUNSIFF COURT, VATAKARA
REVISION PETITIONER/APPELLANT/RESPONDENT :

             SREENILAYATHIL LEKHA RAMACHANDRAN
             AGED 59 YEARS
             W/O RAMACHANDRAN ,BUSINESS,SREE NILAYAM,
             CHANGOTH VAYIL, PONMERI AMSOM,
             PARAMBIL DESOM, PONMERI PARAMBIL PO,
             VATAKARA TALUK, KOZHIKODE DIST-673542.
             BY ADV ZUBAIR PULIKKOOL


RESPONDENTS/RESPONDENTS/PETITIONERS :

     1       OTHAYOTH RUKHIYA,
             AGED 42 YEARS
             D/O IBRAHIM, CHATHOTH HOUSE,
             CHOROD AMSOM AND DESOM,VATAKARA TALUK,
             KOZHIKODE DISTRICT 673104.
     2       SAITHALAVI C H,
             S/O. IBRAHIM, CHATHOTH HOUSE,
             CHOROD AMSOM AND DESOM,VATAKARA TALUK,
             KOZHIKODE DIST- 673104.
     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON   20.05.2024,    THE   COURT   ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 R.C.R No.224 of 2022              2


              AMIT RAWAL & EASWARAN S. , JJ.
                     -------------------------
                     R.C.R No.224 of 2022
                -----------------------------------
             Dated this the 20th day of May 2024

                              ORDER

AMIT RAWAL, J.

The present petition is directed against the concurrent findings of the Rent Controller and Appellate authority allowing the rent petition of the respondents/landlord and upholding the eviction in R.C. No.58 of 2021.

2. Succinctly the facts in brief are as under:

The 1st respondent/landlord instituted a rent petition bearing R.C.P. No.91 of 2015 by impleading himself and his brother seeking the eviction of the petitioner-tenant initially under Section 11 (2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was dismissed on 26.8.2017. However, the appellate authority vide order dated 24.7.2019 in R.C.A No.184 of 2017 remanded the matter back to the Rent Controller for fresh consideration with liberty to adduce further evidence as well as to R.C.R No.224 of 2022 3 carry out amendment. Accordingly, amendment was carried out and the plea as available under Section 11(3) of the Act was added. None of the parties after the remand led any fresh evidence, except that the landlord examined himself after the remand and the amendment on account of the plea of bonafide need. The petitioner-tenant objected to the aforementioned grounds stating that the respondent No.2, the brother of respondent No.1-landlord was not dependent on him and infact he was employed, therefore, there was no bonafide need. Since the parties were at variance, after the remand the learned Rent Controller framed the following issues:

(i) Whether the first petitioner is in bonafide need of the petition schedule shoproom for P.W.1?

(ii) If so, whether the respondent had established that the petitioners are in possession of any vacant rooms of their own in the same city, village or town?

(iii) If so, whether the petitioners had established special reason for non-occupation of the vacant room/rooms in their possession?

(iv) Whether the respondent had proved the dual conditions under the second proviso to Section 11(3) of R.C.R No.224 of 2022 4 The Act?

(v) If so, whether the petitioners are entitled to an order of eviction under Section 11(3) of The Act?

(vi) What are the appropriate orders to be passed?

(vii) What is the order as to costs?

3. The following witnesses and documents have been placed on record:

Petitioner's Witness:-

PW1 : 05.04.2021 Saithalavi C.H., S/o Ibrahim Petitioner's Exhibits:-

A1 25.03.2011 Rent Agreement entered into between Rukhiya and Lekha Ramachandran A2 16.12.2014 Copy of Lawyer notice sent by Sri. Sunil Kumar K.L., Advocate to Smt. Lekha Ramachandran A3 07.12.2014 Postal Receipt A4 19.12.2014 Postal Acknowledgment Card Respondent's Witness :

RW1 03.08.2017 C.V. Ramachandran, S/o Andy C.V. Respondent's Exhibits :

B1 19.12.2014 Lawyer notice sent by Sri. Sunil K.L., Advocate to Smt. Lekha Ramachandran.

4. It is evident that after the remand the landlord has stepped into the witness box on 5.4.2021 in support of the plea of bonafide need, but tenant did not appear.

5. On analysis of the evidence brought on record the learned Rent Controller allowed the petition. The appeal bearing R.C.A. No.58 of 2021 preferred against the order of the Rent Controller was also dismissed.

6. Learned counsel appearing on behalf of the petitioner- tenant, in support of the revision petition made the following submissions:

The brother of the landlord-petitioner No.1 who was arrayed as the petitioner No.2 in the rent petition- respondent No.2 herein, to a specific question in the cross examination, admitted that he was employed and getting a salary of Rs.350/- per day, thus, the entire plea of no avocation or dependency stood evaporated. The premises in question is 23 kms away from the place of residence. No concrete evidence has been placed on record to prove the dependency of the brother-petitioner No.2 in the rent petition upon R.C.R No.224 of 2022 6 respondent No.1. Non appearance of the tenant after the remand cannot be fatal for examining the stand of the landlord by the appellate authority being the first court of fact and law. The petitioner is wholly dependent upon the income derived from the shop in dispute and would suffer a lot in case the eviction is ordered. It is only a desire but not a need. The element of desire cannot be a ground for eviction.

7. On the other hand, the learned counsel appearing for the respondent- landlord supported the finding and submitted that the concurrent finding of the fact and law cannot be re-appreciated until and unless there is a gross illegality and perversity.

8. We have heard the counsel for the parties and appraised the paper book.

9. An attempt was made by the petitioner-tenant to take the advantage of the proviso added under Sub-section 3 of Section 11 for non suiting the landlord on the ground of personal necessity on the premise that adjacent premises are available and vacant. Except bald pleadings, no concrete evidence has been placed on R.C.R No.224 of 2022 7 record much less assistance of Advocate Commissioner was taken. No reasoning have been assigned in belying the categoric stand of the landlord after the remand for seeking the eviction on the ground of bonafide need, that is the dependency of the brother - the petitioner No.2 in the rent petition. A person cannot be permitted to stay idle and sit at home, has to earn for the livelihood. That cannot be a ground for non suiting the landlord. We do not find any illegality or perversity in the concurrent finding of the learned Rent Controller and the appellate authority.

No ground for interference is made out. RCR is dismissed. Appellant is granted one month time to vacate the premises, from the date of receipt of a certified copy of this judgment.

Sd/-

AMIT RAWAL, JUDGE Sd/-

EASWARAN S., JUDGE NS