K.V.Khadar Asees vs K.V.Khadar Asees
2021 Latest Caselaw 3126 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                &

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                      OP (RC).No.11 OF 2019

AGAINST THE ORDER DATED 16-01-2019 IN I.A.136/19 IN RCP 84/2015 ON
            THE FILE OF RENT CONTROL COURT, CHAVAKKAD


PETITIONER/PETITIONER IN I.A./RESPONDENT IN R.C.P:

      1      K.V.KHADAR ASEES,
             AGED 53 YEARS,
             S/O. CHUNNATTU VEETTIL V.C KHADAR, PALUVAI AMSOM AND
             DESOM, CHAVAKKAD TALUK.

      2      N.ABDUL RAHIMAN,
             S/O. MOOSA, NALAKATH KURUVAKUZHI VEEDU, PUNNA,
             CHAVAKKAD.

             BY ADVS.
             SRI.P.SANJAY
             SMT.A.PARVATHI MENON

RESPONDENTS/RESPONDENTS IN I.A./PETITIONER IN R.C.P:

      1      E.J.AMMINI,
             W/O. CHUNKATH DR. C.L JOSE, KUNNAMKULAM VILLAGE AND
             DESOM, THALAPILLY TALUK (PROGENY OF E.J AMMINI) PIN
             680 503.

      2      BIJU C.J,
             REPRESENTED BY POWER OF ATTORNEY HOLDER DR. SIBI JOSE
             CHUNGATH, KUNNAMKULAM VILLAGE AND DESOM ,THALAPILLY
             TALUK, PIN 680 503.

      3      DR. SIJU JOSE CHUNGATH,
             KUNNAMKULAM VILLAGE AND DESOM, THALAPILLY TALUK, PIN
             680 503.

      4      SIBI JOSE CHUNGATH,
             KUNNAMKULAM, VILLAGE AND DESOM, THALAPILLY TALUK PIN
 OP (RC).No.11 OF 2019              2

              680 503.

              R1-4 BY ADV. SRI.M.ANIL KUMAR
              R1-4 BY ADV. SMT.PREETHI K.PURUSHOTHAMAN

     THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON
28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (RC).No.11 OF 2019                   3




                                  JUDGMENT

Dated this the 28th day of January 2021

A.Hariprasad,J.

Heard the learned counsel for petitioners

and the learned counsel appearing for

respondents. Petitioners are the tenants under

the respondents. The respondents filed Ext.P1

application for fixation of fair rent by

invoking Section 5 of the Kerala Buildings

(Lease and Rent Control) Act 1965 (in short the

'BRC' Act). Ext.P2 is an application filed by

the landlords/respondents for evicting the

petitioners herein/tenants by invoking Section

11(3) and Section 11(8) of the BRC Act. The

Rent Control Court as per Ext.P3 order allowed

Ext.P1 petition filed under Section 5 of the

BRC Act increasing the fair rent. It is pointed

out by the learned counsel for the landlords

that dissatisfied with Ext.P3 order, they have

preferred an appeal before the Rent Control

Appellate Court concerned. Ext.P4 is an

application filed by the tenant contending that

pursuant to the decision in Subair and others

Vs. Kunjani @ Kunjimariyam and others (2015 (5)

KHC 260 D), the petition for eviction (Ext.P2)

cannot be maintained. That application was

dismissed by the Rent Control Court and that

order is under challenge.

2. Learned counsel for the landlords

submitted that 5 years have elapsed after filing

the eviction petition (Ext.P2). It has been

decided in Subair's case supra that the period

of 5 years for non evictability shall be

reckoned from the date of filing the application

for fixation of fair rent under Section 5. In

that view of the matter since 5 years have

elapsed by this time, we find that there is no

bar for the Rent Control Court in proceeding

with the trial of Ext.P2 application. Having

regard to the facts and circumstances, by way of

abundant caution, we set aside Ext.P6 order.

In the result, this Original Petition is

disposed of directing the Rent Control Court to

try and dispose of RCP No.84 of 2015 pending

before the Rent Control Court, Chavakkad on or

before 9th April, 2021.

sd/-

A.HARIPRASAD, JUDGE

sd/-

T.V.ANILKUMAR, JUDGE

pm

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PETITION , RCP 83/2015 HON'BLE RENT CONTROL COURT, CHAVAKKAD DATED 12-10-2015

EXHIBIT P2 TRUE COPY OF THE PETITION IN RCP 84/2015 OF HON'BLE RENT CONTROL COURT CHAVAKKAD DATED 12-10-2015

EXHIBIT P3 TRUE COPY OF THE JUDGMENT RCP 84/2015 OF HON'BLE RENT CONTROL COURT, CHAVAKKAD DATED 19-07-2018

EXHIBIT P4 TRUE COPY OF IA 136/2019 IN RCP 84/2015 OF HON'BLE RENT CONTROL COURT CHAVAKKAD DATED 05-01-2019

EXHIBIT P5 TRUE COPY OF I.A 320/2019 IN RCP 84/2015 OF HON'BLE RENT CONTROL COURT CHAVAKKAD DATED 10-01-2019

EXHIBIT P6 TRUE COPY OF THE ORDER IN IA 136/2019 IN RCP 84/2015 OF HON'BLE RENT CONTROL COURT, CHAVAKKAD DATE 16-1-2019.

   RESPONDENT'S EXHIBITS:     NIL