Kerala High Court

P.P.Yousuff vs P.P.Yousuff on 23 February, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                             &

        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                   RCRev..No.206 OF 2020

AGAINST THE ORDER/JUDGMENT IN RCA 128/2013 DATED 13-03-2020
    OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV,
                        THALASSERY

 AGAINST THE ORDER/JUDGMENT IN RCP 56/2012 DATED 22-07-2013
    OF THE RENT CONTROLLER (MUNSIF) COURT, KUTHUPARAMBA


REVISION PETITIONER/RESPONDENT/RESPONDENT:

            P.P.YOUSUFF
            AGED 68 YEARS
            S/O.HUSSAIN, PUTHENPURA HOUSE, PURAKKALAM P.O.,
            KUTHUPARAMBA, KUTHUPARAMBA AMSOM, THALASSERI
            TALUK, PIN-670643.

            BY ADV. SRI.K.V.PAVITHRAN

RESPONDENT/APPELLANT/PETITIONER:

            KALLARIKKAL RASIYA
            AGED 42 YEARS
            D/O.MUSTHAFFA, KUTHUPARAMBA AMSOM NARZAVOOR
            DESOM, P.O.KUTHUPARAMBA, PIN-670643.

            R1 BY ADV. SMT.RUKHIYABI MOHD KUNHI
            R1 BY ADV. SMT.T.K.SREEKALA

     THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 R.C.R No.206/2020                        2




         A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ.
              --------------------------------------
                     R.C.R No.206 of 2020
              --------------------------------------
         Dated this the 23rd day of February, 2021

                                   ORDER

P.V.KUNHIKRISHNAN, J.

The revision petitioner is the respondent in R.C.P.

No.56/2012 on the file of the Rent Controller (Munsiff Court,

Kuthuparamba). The above rent control petition was filed by

the respondent herein for eviction of the petition schedule

building under Section 11 (2)(b) and 11(3) of the Kerala

Building (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 case of the petitioner can be summarised like

this:- The petition schedule building belongs to the

petitioner. The respondent is in the occupation of the

petition schedule building as a tenant. In the year 2001,

the petitioner filed RCP No.12/2001 against the respondent

seeking eviction on the ground of her bonafide need for

conducting a business in ladies wear and she wants to do

the business with the assistance of her husband who had

lost his job at abroad. The rent control court was pleased to

order eviction under Section 11(3) of the Act as per its order

dated 3.7.2002 in the above petition. Due to some pressure

through political leaders, the petitioner agreed with the

respondent that the respondent can continue in the petition

schedule building for some more time. The respondent

voluntarily agreed to discharge monthly rent at the rate of

Rs.1,750/- and the rent was subsequently enhanced to

Rs.2,000/-. According to the petitioner, there was default in

paying the rent. In the meanwhile, the petitioner's husband,

who was running a business of her uncle had surrendered

the said business in February, 2010 and the petitioner's

husband became jobless. As such the petitioner and her

husband become jobless and without any income. Thus the

petitioner issued a registered lawyer notice to the

respondent calling upon him to surrender the petition

schedule building. According to the petitioner, she needs the

petition schedule building for the bonafide purpose of herself

and her husband. The petitioner contended that she and her

husband have no other shop rooms except the petition

schedule building. According to her, her husband is

dependent on her for the same. It is the case of the

petitioner that her husband has got experience in doing

business and he has funds for the proposed business. The

respondent is having other means and has got properties.

The petitioner contended that the main source of livelihood

of the respondent is from other sources and not from the

petition schedule building. The petitioner also contended

that there are so many vacant rooms available in the

locality. Hence, the petitioner contended before the rent

control court that there may be an order of eviction under

Section 11(3) of the Act 1965.

3. The respondent entered appearance before the

rent control court and filed a counter statement denying the

averments in the rent control petition. He admitted that

there was an order of eviction in RCP No. 12/2001 and

against which an appeal was filed by him before the Rent

Control Appellate Authority as RCA No.156/2002. When the

said case was pending, the respondent submitted that the

petitioner allowed the respondent to continue his tenancy

and occupation of the room on the condition of paying

enhanced rent of Rs.1750/- per month. It is the definite

case of the respondent that a new kachit dated 11.8.2003

was executed. The other contentions in the rent control

petition were denied by the respondent. According to the

respondent, the intention of the petitioner is only to evict

the respondent and to let out the building to others for

higher rent. The respondent also prayed for the benefit of

the first and second proviso to Section 11(3) of the Act.

4. To substantiate the case, PW1 and PW2 were

examined on the side of the petitioner and RW1 was

examined on the side of the respondent. Exts.A1 to A5 were

marked on the side of the petitioner as exhibits and Exts.B1

to B16 were marked on the side of the respondent. After

going through the evidence and documents the rent control

court found that the petitioner is not entitled to get an order

of eviction under Section 11(2) and 11(3) of the Act 1965.

5. Aggrieved by the order passed by the rent control

court, the petitioner/landlord filed an appeal before the rent

control appellate authority, Thalassery. The rent control

appellate authority reversed the finding of the rent control

court under Section 11 (3) of the Act 1965 and ordered

eviction. Aggrieved by the above order of eviction, this

revision is filed.

6. Heard the counsel for the petitioner and the

counsel for the respondent. The counsel for the respondent

argued that the rent control petition is not maintainable and

the rent control court ought to have rejected the application

because, between the same parties, the same issues were

already decided and hence in the light of Section 15 of the

Act 1965, the present rent control proceedings is not

maintainable. Moreover, the counsel also submitted that

there are contradictions in the evidence adduced by the

petitioner about the bonafide need when compared with the

pleadings. The counsel for the respondent submitted that

the rent control appellate authority erred in reversing the

findings of the rent control court.

7. The counsel for the petitioner supported the order

of eviction passed by the appellate authority. The learned

counsel submitted that Section 15 of the Act 1965 has no

application in the facts and circumstances of this case. The

counsel submitted that the cause of action for filing the

present rent control petition is different from the cause of

action which leads to the filing of the earlier petition.

Therefore, Section 15 of the Act 1965 is not at all applicable

to the facts and circumstances of the case. The counsel

submitted that there is nothing to interfere with the eviction

order passed by the appellate authority by invoking Section

20 of the Act 1965.

8. The main contention of the respondent is that the

present rent control proceedings is not maintainable in the

light of Section 15 of the Act 1965. For a proper decision of

the case Section 15 of the Act 1965 is extracted hereunder.

"15. Decisions which have become final not to be reopened - The Rent Control Court shall summarily reject any application under sub-section (2), (3), (4), (5), (7) or sub-section (8) of section 11 which arises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under this act or under the corresponding provisions of any law in force prior to the commencement of this Act or the corresponding provisions of any law repealed or superseded by such law."

(emphasis supplied)

9. Section 15 of the Act 1965 says that the rent

control court shall summarily reject any application under

Section (2), (3),(4), (5),(7) or subsection 8 of Section 11

which arises between the same parties or between parties

under whom they or any of them claim substantially the

same issues as have been finally decided or purports to have

been finally decided in a former proceeding under this Act or

under the corresponding provisions in any law in force prior

to the commencement of this Act or the corresponding

provisions of any law repelled or superseded by such law.

Therefore, Section 15 is applicable only if the same issue is

finally decided in a former proceeding.

10. It is true that the petitioner filed RCP No. 12/2001

against the respondent earlier for eviction under Section 11

(3) of the Act 1965. It is also a fact that the above rent

control petition was decided on merit and an order of

eviction was passed by the rent control court. The parties

in RCP No.12/2001 and the parties in the present

proceedings are the same. Challenging the order of

eviction passed by the rent control court, an appeal was filed

before the appellate authority by the respondent/tenant

herein. That appeal was dismissed as not pressed as per

judgment dated 14.08.2003. The claim of the

petitioner/landlord in R.C.P.No.12/2001 is a bonafide need

and the petition was filed under Section 11 (3) of the Act

1965. For understanding the need projected by the

petitioner/landlord in RCP No. 12/2001, it is better to extract

the relevant portion of the rent control petition in RCP

No.12/2001 which is extracted hereunder.

" 4. The petitioner has been requesting the respondent to vacate and surrender the petition schedule shop building for her bonafide need for conducting a business in ladies wears. Though the respondent agreed for surrender initially, he subsequently evaded from the same clandestinely. The petitioner has no independent job or source of income and the need of the petitioner is with all bonafides. The petitioner has also made him aware that her husband also lost his job abroad and her idea is to run her venture with the assistance of her husband. The petitioner gained knowledge and experience for the proposed venture and she accumulated funds also".

(emphasis supplied)

11. From the above, it is clear that the claim of the

petitioner/landlord is to get the vacant petition schedule

room for her bonafide need for conducting a business in

ladies wears. But of course, it is stated by the petitioner

that her husband also lost his job abroad and her idea is to

run her venture with the assistance of her husband.

Therefore, the petitioner/landlord intends to get the vacant

possession of the petition schedule building in RCP

No.12/2001 to conduct a business in ladies wears and she

wanted to conduct the same with the assistance of her

husband.

12. Thereafter, the rent control court ordered eviction

and the appeal filed by the tenant was dismissed as not

pressed.

13. Thereafter, the present rent control court petition

was filed as RCP No.56/2012. The need projected in RCP

56/2012 which leads to the present revision is extracted

hereunder.

" 11.The petitioner as well as her husband bonafide require the petition schedule shop room for their livelihood and their income and their need is dire and inevitable. The petitioner or her husband has absolutely no other exclusive shop rooms except the petition schedule building and the husband of the petitioner depends the petitioner for the same. The husband of the petitioner has already gained experience in doing business besides funds and his proposed business venture is to run Ladies Wears. The respondent is a man of means, substantial in all respects and acquired with various properties and building and his main source of livelihood is from those ventures, particularly not from the petition schedule shop room. Suppose he intends to acquire any other shop rooms, such convenient vacant shop rooms are available in the locality also. The petitioner

is now fully convinced that the respondent will not surrender vacant possession of the petition schedule shop building without the intervention of this Hon'ble Court. Hence this petition".

(emphasis supplied)

14. From the above averment, it is clear that the

intention of the petitioner/landlord is to start a business in

ladies wears with her husband. In the above petition, it is

stated in so many words, that the petitioner as well as her

husband bonafide required the petition schedule room for

their livelihood. Therefore, the need projected in RCP No.

12/2001 and the need projected in RCP No.56/2012 are

entirely different. In RCP No.56/2012, the petitioner/landlord

wants to start a business in ladies wear and she expects

assistance from her husband for the business. But the need

projected in RCP No.56/2012 is that the petitioner as well as

her husband bonafide required the petition schedule building

for their livelihood and their income and their need is dire

and inevitable. Therefore, the need projected in RCP

No.12/2001 and RCP No.56/2012 is not the same.

Therefore, it cannot be said that the issues in RCP No.

12/2001 and RCP No.56/2012 are substantially the same

issues as stated in Section 15 of the Act 1965. If that is the

case, Section 15 of the Act 1965 has no application at all.

Moreover, it is also to be noted that no such case was

pleaded by the respondent/tenant in his counter statement

in RCP 56/2012. We are not going to the issue regarding

the lack of pleading in the counter statement of the

respondent about the applicability of Section 15 the Act

1965 because according to us, Section 15 has no application

in this case because the need projected in RCP Nos.12/2001

and 56/2012 is not the same which is one of the

requirement to attract Section 15 of the Act 1965.

15. At this stage, the counsel for the respondent

submitted that there are contradictions in the evidence of

PW1 and the other witnesses about the bonafide need. We

perused the evidence of PW1 and PW2 along with the

pleadings in the rent control petition. We see no serious

contradiction in the evidence adduced by PW1 and PW2 to

interfere in a revision filed under Section 20 of the Act 1965.

From the facts and circumstances of the case, according to

us, there is nothing to interfere with the eviction order

passed by the rent control appellate authority.

16. At this stage, the counsel for the respondent

submitted that one year time may be granted to him for

vacating the petition schedule building. The counsel for the

petitioner strongly opposed the same. She submitted that

the rent control petition was filed in 2012 and he is waiting

to start the business for the last 9 years. Considering the

entire facts and circumstances of the case, according to us,

six months can be granted.

In the result, the revision is dismissed granting six

months to the revision petitioner/tenant to vacate the

petition schedule building on the following conditions:

(i) The revision petitioner/tenant will file an undertaking

within three weeks from today before the rent control

court to the effect that he will vacate the petition schedule

premises within six months.

(ii)The revision petitioner/tenant will pay the entire arrears of

rent and also will continue to pay the contract rent as

compensation for the use and occupation.

(iii) If any of the above conditions are violated, the

respondent/landlord herein is entitled to execute the

eviction order in accordance with the law.