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Kerala High Court
K K Hassan Kunhi vs Dr. Muhammed Ali M on 21 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.
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
RCREV. NO. 102 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 06.03.2024 IN RCA NO.96 OF 2023
OF ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY ARISING OUT
OF THE ORDER/JUDGMENT DATED 31.03.2023 IN RCP NO.6 OF 2021 OF
ADDITIONAL MUNSIFF COURT, KANNUR
REVISION PETITIONER(S)/RESPONDENT/PETITIONER:
K K HASSAN KUNHI
AGED 69 YEARS
S/O ABDUL RAHIMAN, BUILDING NO. TV 33/2016,
KODI FOOTWEAR, FORT ROAD, KANNUR, PIN - 670001
BY ADVS.
M.K.SUMOD
VIDYA M.K.
THUSHARA.K
NAMITHA GEORGE
RESPONDENT(S)/APPELLANTS/RESPONDENTS:
1 DR. MUHAMMED ALI M
AGED 76 YEARS
S/O HASSAN KUNHI FATHIMA FARHEEN, THATTIYODE P.O.,
KOODALI, THATTIYODE DESOM, KANHIRODE DESOM,
KANNUR, PIN - 670592
2 T P ANSILA
AGED 46 YEARS
W/O M. FAISAL RABIYA MANZIL, NEAR GOVT. HIGH SCHOOL,
VALAPATTANAM AMSOM DESOM, KANNUR, PIN - 670592
3 DR T P NISHI
AGED 48 YEARS
W/O DR. P. FARHAD FATHIMA FARHEEN, THATTIYODE P.O.,
KOODALI, THOTTIYODE DESOM, KANHIRODE DESOM,
KANNUR, PIN - 670592
RCREV. NO. 102 OF 2024 -2-
4 T P JERRISH
AGED 38 YEARS
S/O DR. MUHAMMED ALI M. FATHIMA FARHEEN,
THATTIYODE P.O., KOODALI, THOTTIYODE DESOM,
KANHIRODE DESOM, KANNUR, PIN - 670592
5 T P SHAMEEM
AGED 46 YEARS
S/O DR. MUHAMMED ALI M. FATHIMA FARHEEN,
THATTIYODE P.O., KOODALI, THOTTIYODE DESOM,
KANHIRODE DESOM, KANNUR, PIN - 670592
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RCREV. NO. 102 OF 2024 -3-
ORDER
AMIT RAWAL, J.
1. Petitioner tenant was not successful in protecting the possession of the tenanted premises upto this Court and the eviction order was upheld by this Court vide order dated 12.12.2019, though during the pendency of the proceedings before the higher courts, tenant had instituted Execution Petition No.66 of 2017.
2. The possession of the schedule property was delivered to the landlord on 28.09.2020. Section 11(12) of the Kerala Buildings (Lease and Rent Control) Act entitles the tenant to seek the re-possession of the property in case the landlord does not occupy without reasonable cause within one month of the date of obtaining possession, or having so occupied it, vacates it without reasonable cause within six months of such date. Concededly, during the period when the possession was handed over, there were restrictions owing to the RCREV. NO. 102 OF 2024 -4- COVID-19 pandemic. The quarantine period as fixed by the respective states in the said month was fourteen(14) days.
3. Petitioner tenant by taking the benefit of the aforementioned provisions instituted RCP No.6 of 2021 and sought the assistance of the Rent Controller for appointment of the Advocate Commissioner. The report of the Advocate Commissioner revealed that the premises was unoccupied and filled with waste. The landlord sought the eviction for running an Ultrasound Sonography Centre. On receipt of the aforementioned petition landlord gave the explanation in the objection petition. Both the parties were at variance and the Rent Controller framed the following issues:
"1. Whether the respondents did not occupy the petition schedule building within one month of date of obtaining possession without any reasonable cause?
2. Whether the petitioner is entitled to get an order of eviction of respondents? If so on what ground?RCREV. NO. 102 OF 2024 -5-
3. What is the order as to costs?"
Judgment of the previous court and appellate court was brought on record A2 and A3 and Advocate Commission Report C1 and Photographs C2. Rent Controller vide judgment dated 31.03.2023 allowed the petition. Learned Appellate Court in an appeal preferred by the landlord reversed the findings. It is in this background petitioner tenant has approached this Court.
4. Mr.M.K.Sumod, assisted by Adv.Namitha George learned counsel appearing on behalf of the petitioner submitted that appellate authority failed to notice the testimony of the landlord, categorically stated that the steps to occupy the property and run the business was taken only after the appointment of the Advocate Commissioner. No reasonable cause has been shown to wriggle out from the applicability of the provisions of Section 11(12) of the Act, much less failed to file any objection to the report of the Advocate Commissioner.
RCREV. NO. 102 OF 2024 -6-
5. We have heard learned counsel for the petitioner and appraised the paper book.
Concededly, the eviction order was upheld on 12.12.2019 when the rent provision preferred by the tenant was dismissed. Possession was handed over on 28.09.2020. Landlord has explained the objection that owing to the COVID-19 there were restrictions for undertaking the scanning of pregnant woman from one or two months to four months. There was no possibility of setting up the scanning center much less no technicians and other staff was available for undertaking the renovation and repairs. Realising bleak prospects, changed the vocation by setting up a mobile shop as per the permission granted on 12.01.2021. We are of the view that the findings of the appellate authority are based upon the applicability of the provisions as landlord has been able to explain the reasons of not occupying the premises and rightly thwarted the claim of the tenant. The order is perfectly legal and justified. RCREV. NO. 102 OF 2024 -7-
No ground for interference is made out. Rent Control Revision petition is dismissed.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE vv