Kerala High Court
Maya vs Maya on 18 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
RCRev..No.319 OF 2017
AGAINST THE ORDER/JUDGMENT IN RCP 21/2011 OF ADDITIONAL MUNSIFF
COURT, KOLLAM
AGAINST THE ORDER/JUDGMENT IN RCA 16/2014 DATED 20-02-2017 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOLLAM
REVISION PETITIONER/APPELLANTS/RESPONDENTS:
1 MAYA, W/O.LATE GOPALA PILLAI
AGED 68 YERAS,RESIDING AT REVATHI HOUSE,
KAVANADU, KOLLAM-69100,
2 SAJI
S/O.LATE GOPALA PILLAI,
RESIDING AT REVATHI HOUSE,
KAVANADU, KOLLAM-69100.
3 SREYA LEKSHMI(MINOR)
D/O.SAJI, REPRESENTED BY FATHER AND GURDIAN SAJI,
RESIDING AT REVATHI HOUSE, KAVANADU,KOLLAM-691001.
BY ADV. SRI.B.MOHANLAL
RESPONDENT/RESPONDENT/PETITIONER:
A.K.SHABEERA KALAM
W/O.ABDUL KALAM, SAFIRE, HOUSE NO IX,
KOTTAKKAKOM WARD,KOLLAM, NOW RESIDING AT GREEN
GARDENS,HOUSE NO-6, CHELLAMANGALAM,POWIDKONAM,
THIRUVANANTHAPURAM,PIN- 695587
R1 BY ADV. SRI.V.PREMCHAND
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11-02-
2021, THE COURT ON 18-02-2021 PASSED THE FOLLOWING:
R.C.R No.319 OF 2017
2
A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ
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R.C.R No. 319 of 2017
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Dated this the 18th day of February 2021
O R D E R
P.V.KUNHIKRISHNAN, J.
Revision petitioners are the respondents in RC(OP) No.21/2011
on the file of the Additional Munsiff/Rent Control Court, Kollam. The
respondent herein is the petitioner in the above Rent Control
Petition. The Rent Control Petition was filed by the respondent for
eviction under Section 11(2) and 11(3) of the Kerala Buildings
(Lease and Rent Control) Act, 1965 (for short 'the Act, 1965').
Hereinafter the parties are mentioned in accordance with their rank
before the Rent Control Court.
2. The petitioner contended that 2 cents of property and
commercial building therein comprised in old Sy.No.8692/85 of
Kollam East Village originally belonged to petitioner's husband
Abdul Kalam. Out of this one shop room bearing No.616 (present
No.895) of Andamukkam Ward was taken for lease by late Gopala
Pillai as per rent deed No.2282/1974 dated 01.08.1974 of Kollam
SRO. That shop room is specifically shown as petition schedule
shop room. Late Gopala Pillai was a tenant for one year and it was
R.C.R No.319 OF 2017
taken for rent of Rs.100/- per month. Subsequently, as per
settlement deed No.2666 of Kollam SRO, the petitioner obtained
right in the building. The counter petitioners accepted the
petitioner as their landlord. According to the petitioner, there was
default in paying the rent and there are arrears of rent. It is the
specific case of the petitioner that she and her sister intended to
start a readymade garment business for ladies by making use of the
petition schedule shop room along with the adjacent shop room and
the upstairs room therein. According to the petitioner, she and her
sisters together owned adjacent shop room bearing No.853 and
860. Tenants in that shop rooms were evicted and steps being
taken for reconstructing those buildings. It is also the case of the
petitioner that she had taken further steps to evict tenants from the
upstairs shop room. According to the petitioner, the petition
schedule shop room and the adjacent room are suitable to start the
proposed business. There are other buildings available for the
counter petitioners to continue their business. The family members
of respondents have other sources of income and they are not
solely depending on the income from the petition schedule shop
room. Hence the petition is filed under Section 11(3) and 11(2)(b)
of the Act, 1965.
R.C.R No.319 OF 2017
3. The counter petitioners entered appearance before the
rent control court and filed an objection denying almost all the
statements in the petition. The counter petitioners submitted that
there is no bonafide on the part of the petitioner in filing the
petition under Section 11(3) of the Act, 1965. The counter
petitioners also contended that they are entitled to the benefit of
the first and second proviso of Section 11(3) of the Act, 1965.
4. To substantiate the case PW1 was examined on side of
the petitioner and Ext.A1 to A6 were also marked. CPW1 and CPW2
were examined on side of the counter petitioners. Ext.B1 was also
marked on side of the counter petitioners. Exts.C1 and C1(a) are
the report of the Advocate Commission. After going through the
evidence and the documents the Rent Control Court found that the
petitioner is not entitled to an order under Section 11(3) and 11(2)
(b) of the Act 1965. Accordingly, the petition was dismissed.
5. Aggrieved by the above order the petitioner filed an
appeal before the Appellate Authority. The Additional District Judge-
V (Rent Control Appellate Authority), Kollam considered the appeal.
After hearing both sides, the Appellate Authority allowed the appeal
in part and ordered eviction under Section 11(3) of the Act, 1965.
Aggrieved by the above eviction order this revision is filed.
R.C.R No.319 OF 2017
6. Heard counsel for the petitioner and counter petitioners.
The counsel for the counter petitioners submitted that the order
passed by the appellate authority is per se illegal and without
considering the evidence available in this case. The counsel
submitted that the tenants are entitled to the benefits of the
proviso to Section 11(3) of the Act, 1965. The counsel submitted
that in the light of Exts.C1 and C1(a) report of the Commissioner, it
is clear that the landlord is in possession of other vacant buildings
of her own in the same premises, where the petition schedule
building is situated and there is no special reason mentioned for not
occupying those rooms. The contention based on the first proviso is
the trump card raised by the counsel for the counter petitioner. The
counsel for the petitioner submitted that the counter petitioner is
relying upon Exts.C1 and C1(a) Commissioner report, which is a
report submitted by the Commissioner in another case. The same
cannot be relied upon in the light of the judgment of this Court in
Selin Joseph v. Vijyan [1999 (3) KLT 898].
7. After hearing both sides, according to us there is nothing to
interfere with the order passed by the Appellate Authority. Exts.C1
and C1(a) cannot be relied upon in the light of the principle laid
down in the judgment of this Court in Selin Joseph v. Vijyan [1999
R.C.R No.319 OF 2017
(3) KLT 898]. The appellate court found that the claim of the
petitioner is genuine and bonafide. The relevant portion of the
judgment of the appellate court is extracted hereunder:
"9. Point No.2:- Petitioner alleged that she is in
bonafide need of the petition scheduled shop room for
conducting a ready made garments business along with her
sister, who is the owner of the adjacent shop room. At the
time of argument the learned counsel for the petitioner
submitted before the court that the sister of the petitioner
had already filed a RC OP with respect to the eviction of the
shop room belonged to her and that was already allowed by
the Rent Control Court. Though the respondents are absent
before the appellate court they have filed counter and
contended before the lower court that the petitioner is in
possession of other rooms and she can start her business in
that vacant rooms. But the petitioner alleged that she along
with her sister are in need of starting a ready made garments
business in adjacent shop rooms. In addition to this the
respondent further contended that there is a stare case in
the scheduled shop building and that will cause
inconvenience to run a ready made garment business in the
scheduled shop rooms. All these matters are to be decided
by the land lady herself. The learned counsel for the
petitioner argued before the court that it is the privilege of
land lady to choose the nature of the business and place of
business on the basis of decision reported in 2005 KHC 1495
(Supreme Court) in Sait Nagee Purushotham and Co.Ltd. v.
Vimalabai Prabhulal. It is true that the land lord is having
every privilege to choose the nature of business and the
place of business according to her convenience. In Savitri
Sahay v. Sachidanand Prasad (2002 KHC 1749 S.C.) also
Hon'ble Apex Court held that it is open for land lord to
choose and prefer one suitable let out premises and a tenant
cannot question such preference."
We see no reason to interfere with the above finding of fact by the
lower authorities by invoking the powers under Section 20 of the
Act, 1965.
8. At this stage the counsel for the petitioner submitted that
R.C.R No.319 OF 2017
the tenants may be given ten months to vacate the premises.
Admittedly the Rent Control Petition was filed in the year 2011.
Now almost ten years elapsed after filing the Rent Control Petition.
In such circumstances, we are not in a position to give ten months
to vacate the premises. Considering the facts and circumstances of
the case, we feel that six months can be granted.
9. Therefore, this Rent Control Revision is dismissed granting
six months to the counter petitioners/tenants for vacating the
petition schedule building on the following conditions:
(1) Counter petitioners/tenants will file an undertaking before the Rent
Control Court to the effect that they will vacate the petition schedule premises
within six months.
(2) The counter petitioners/tenants will pay the entire arrears of rent
and also will continue to pay the contract rent as compensation for use and
occupation.
(3) If any of the above conditions are violated, the petitioner/Landlady
is free to execute the eviction order.
Sd/-
A.HARIPRASAD
JUDGE
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
scs
