K.M.Gopi vs P.P.Saina
2021 Latest Caselaw 874 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                    &

              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                         RCRev..No.102 OF 2020

AGAINST THE JUDGMENT IN RCA 44/2017 DATED 14-02-2020 OF ADDITIONAL
        DISTRICT COURT & SESSIONS COURT - III, THALASSERY

  AGAINST THE ORDER IN RCP 114/2014 DATED 16-12-2016 OF MUNSIFF
                        COURT, THALASSERY


REVISION PETITIONER:

               K.M.GOPI
               AGED 68 YEARS
               S/O. KUMARAN, RESIDING AT KONAR KANDY MUKKATH HOUSE,
               MAYYAZHI COMMUNE, CHOODIKOTTA DESOM, P.O MAHE,
               PONDICHERY STATE PIN 670 310

               BY ADVS.
               SRI.K.VISWAN
               SRI.D.ARUN BOSE
               SRI.AKHIL S.VISHNU

RESPONDENT:

               P.P.SAINA
               AGED 74 YEARS
               D/O. ASSAN, RESIDING AT SAINABA MANZIL, NEAR
               FRENCHPETTY PALAM, KODIYERI AMSOM, PERUMUNDERI DESOM,
               THALASSERY TALUK, KANNUR DISTRICT, KERALA PIN 670 102

               R1 BY ADV. SRI.T.ASAFALI

     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
11.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 R.C.R No.102 of 2020           2



           A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ.
       -----------------------------------------------------
                     R.C.R No.102 of 2020
       -----------------------------------------------------
         Dated this the 11th day of January, 2021

                           ORDER

P.V.KUNHIKRISHNAN, J

The revision petitioner is the respondent in RCP No.114 of

2014 on the file of the Rent Controller/Munsiff, Thalassery. The

above petition was filed by the respondent herein for eviction

under Section 11(3) and 11(4) (v) of the Kerala Building

(Lease and Rent Control) Act (hereinafter mentioned as the

Act). The Rent Control Court, after going through the evidence

and documents, ordered eviction u/s.11(3) and 11(4) (v) of

the Act.

2. Aggrieved by the order of the Rent Control Court, the

respondent filed an appeal before the Appellate Authority. The

Rent Control Appellate Authority dismissed the appeal on

15.1.2020, confirming the order of eviction passed by the Rent

Control Court. Thereafter a Review Petition was filed before the

Rent Control Appellate Authority alleging that the parties were

not appropriately heard before passing the final order. The

same was allowed by the Appellate Authority, and the appeal

was heard again. Thereafter, as per order dated 14.2.2020, the

Rent Control Appellate Authority dismissed the appeal.

Aggrieved by the above order dated 14.2.2020 in RCA No.44 of

2017 of the Rent Control Appellate Authority (Additional

District Judge-III), Thalassery which confirmed the order of

eviction passed by the Rent Control Court (Munsiff), Thalassery

as per order dated 16.12.2016 in RCP No.114 of 2015, this

revision is filed under Section 20 of the Act. (hereinafter the

parties are mentioned as per their rank before the Rent Control

Court).

3. The Rent Control Petition was filed by the petitioner

under Section 11(3) and 11(4)(v) of the Act. According to the

petitioner/landlady, she needs the petition schedule shop room

for the occupation of her daughter Asma.P.P, who is dependant

on her for starting a tailoring shop. The petitioner also

contended that the respondent ceased to occupy the petition

schedule building for more than 10 months without any cause.

Hence, she prayed for eviction under Section 11 (3) and 11(4)

(v) of the Act.

4. The respondent contended before the Rent Control

Court that the bonafide need alleged in the petition is only an

invented one for the sake of eviction of the respondent from

the petition schedule room. According to the respondent, the

petitioner's daughter Asma is residing in Gulf, and she is in no

need of the petition schedule room for her livelihood. He also

contended that Asma is not having any experience in tailoring

and nor she has any experience in conducting business. The

respondent also contended that he is conducting a stationary

business in the petition schedule room for the last 9 years. He

also contended that he depends mainly from the income

derived from the business in the petition schedule shop room

for his livelihood. According to the respondent, there is another

room in the possession of the petitioner adjacent to the

petition schedule room. It is also contended that a tailoring

shop is being conducted by one Yamuna near the petition

schedule room and there is no scope for starting a tailoring

shop in the petition schedule room. The respondent contended

that no other vacant room is available near the petition

schedule room and the intention of the petitioner is to evict the

respondent and to reconstruct the petition schedule building

into a flat. An additional counter statement was also filed by

the respondent in which the description of plaint schedule

property was disputed.

5. To substantiate the case, parties adduced evidence.

PW1, PW2, RW1, and CW1 were examined. Ext A1 was marked

on the side of the petitioner and Exts B1 to B26 were marked

on the side of the respondent. Ext C1 is the commission report.

6. After going through the evidence and documents, the

Rent Control Court allowed the petition and ordered eviction

under Section 11(3) and 11(4)(v) of the Act. The Appellate

Authority confirms the eviction order.

7. Heard.

8. The counsel for the respondent submitted that the Rent

Control Court and the Appellate Authority had not considered

the contentions of the respondent properly. According to the

counsel, the order of eviction passed under Section 11(4)(v) is

without considering the contentions of the respondent. The

counsel submitted that the building inspected by the

Commissioner is not the building in which the respondent is

conducting business. As far as the bonafide need is concerned,

the submission of the counsel for the respondent is that the

evidence adduced by the petitioner is not sufficient to prove

the bonafide need alleged in the Rent Control Petition. The

counsel for the petitioner contended that the Rent Control

Court and the Appellate Authority, after considering the entire

oral and documentary evidence, concluded that the petitioner

is entitled eviction order under Section 11(3) and 11(4)(v) of

the Act. The submission of the petitioner is that there is

nothing to interfere with the eviction order in a revision filed

under Section 20 of the Act.

9. After hearing both sides, according to us, there is

nothing to interfere with the order of eviction passed by the

Rent Control Court, which is confirmed by the Appellate

Authority. The contention of the respondent that the

Commissioner has not inspected the petition schedule building

cannot be accepted. The evidence adduced by the respondent

himself will falsify the said contention. The Commissioner

deposed before the Rent Control Court that on local enquiry,

she was convinced about the long cessation of occupation of

the petition schedule room. The Commissioner also found the

shutters of the building affected with rust. The explanation of

the respondent tenant is that he was not present in the shop

when the Commissioner inspected. But no steps were taken by

the respondent to get the building inspected by the Advocate

Commissioner again to prove that he is in occupation of the

building. The main contention of the respondent is about the

identity of the tenanted premises in which the Commissioner

inspected. It is true that as per Ext A1 kychit and as per the

Rent Control Petition, the number of the room is X/728 of New

Mahi Grama Panchyath. Ext B24 is the application filed by the

respondent before the Secretary of Grama Panchayat under the

Right to Information Act, asking as to whether room No.X/728

was in possession of the respondent herein. As per Ext B26,

the Secretary of New Mahi Panchayat replied in the negative.

The said Secretary was examined as CW1. CW1 deposed

before the learned Rent Controller that building numbers would

be changed periodically and he was not able to state as to

when the number was changed last. The Secretary of the

Panchayat deposed before the Court that the number is subject

to change from time to time. In this context it is to be noted

that the respondent himself had shown the same building

number as X/728 while referring the petition schedule building

in a suit filed by him as O.S.No.8/2014, which was filed against

the petitioner for injunction against the forceful eviction. This

fact is evident in Ext B3 copy of the judgment and Ext B4 copy

of the decree in that suit. Therefore, according to us, the lower

Court rightly rejected the contention of the respondent about

the identity of the petition schedule building. The Rent

Controller after going through the evidence of PW1, the

Commissioner and other evidence available before the Court

concluded that the petitioner is entitled eviction under Section

11(4)(v) of the Act. We see no reason to interfere with the

above order of eviction.

10. As far as the order of eviction under Section 11(3) of

the Act is concerned, there is evidence of PW2, the daughter of

the petitioner. She gave evidence in detail. The need put

forward by the petitioner is that she wants the petition

schedule building for starting a tailoring shop for her daughter,

who is PW2. There is nothing to disbelieve the evidence of PW2

as far as the need pleaded by the petitioner for eviction. Both

Courts concurrently considered all the contentions of the

respondent and rejected the same. We see no reason to

interfere with the same. The contention of the respondent

based on the 1st and 2nd proviso of Section 11(3) was also

considered by the Rent Control Court and the the Appellate

Authority in detail. The Rent Control Court and the Appellate

Authority found that the case of the respondent that the room

which was in possession of one Yamuna adjacent to the

petition schedule building, which is similar to the petition

schedule building is lying vacant is rejected because in his

counter statement, the respondent has not raised such a

contention. There is no evidence to show that a room occupied

by Yamuna, near to the petition schedule room is lying vacant.

Similarly, the respondent had not pleaded or proved the

availability of any other vacant room either in possession of the

petitioner or in possession of her daughter for conducting the

proposed business. Hence, the appellate authorities perfectly

justified in concluding that the respondents failed to prove

entitlement of protection under the 1 st proviso to Section 11(3)

of the Act.

11. As far as the 2nd proviso to Section 11(3) of the Act is

concerned, the contention of respondent is that he is

conducting a stationary business in the petition schedule

building for the past 9 years and he is depending mainly on the

income derived from the business conducted in the petition

schedule building. But after considering the entire oral and

documentary evidence, the Rent Control Court and the

Appellate Authority found that the respondent is not entitled

the benefit of 2nd proviso to Section 11(3) of the Act. We see

no reason to interfere with the above finding also in a revision

filed under section 20 of the Act.

12. The respondent filed I.A.No.3 of 2020 before this

Court, producing Annexure XXXV to XCVI as additional

documents. That petition is filed under Order XLI Rule 27 read

with Section 151 CPC. We are considering a revision petition

and not an appeal. Order XLI has no application to the

revisional proceedings. Moreover, the conditions to accept

additional documents as per Order XLI Rule 27 is not available

in this case. Moreover it is not even pleaded in the affidavit

filed along with the petition. There is no explanation for not

producing these documents before the Rent Control Court or

before the Appellate Authority. We see no reason to accept

those documents in a revision filed under Section 20 of the Act.

Therefore, we reject I.A.No.3 of 2020 filed by the respondent

on 26.11.2020.

13. In the result, the order of eviction passed by the Rent

Control Court under Section 11(3) and 11(4)(v) of the Act,

which is confirmed by the Appellate Authority is perfectly

justified and there is nothing to interfere in a revision filed

under Section 20 of the Act.

At this stage, the counsel for the petitioner submitted that

some time may be granted to vacate the premises. Considering

the entire facts and circumstances of the case, we think that

six months time can be granted to vacate the premises on

condition that the respondent will file an undertaking before

the Rent Control Court that he will vacate the premises within

six months and will continue to pay the admitted rent as

compensation for use and occupation till such time.

In the result this revision is dismissed, granting six

months time to the respondent/tenant for vacating the petition

scheduled building on the following conditions.

1. The respondent/tenant will file an

undertaking before the Rent Control Court to

the effect that he will vacate the petition

scheduled premises within six months.

2. The respondent/tenant will pay the

entire arrears of rent and also will continue to

pay the contract rent as compensation for use

and occupation.

Sd/-

A. HARIPRASAD, JUDGE.

Sd/-

P.V.KUNHIKRISHNAN, JUDGE

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