Kerala High Court
Parottokath Ismail vs Parottokath Ismail on 2 March, 2021
RCR No.130/2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942
RCRev..No.130 OF 2019
[AGAINST THE JUDGMENT DATED 10.10.2018 IN R.C.A.NO.55 OF 2015 ON THE FILE OF THE RENT
CONTROL APPELLATE AUTHORITY, THALASSERY
AGAINST THE ORDER DATED 26.2.2015 IN R.C.P.NO.32 OF 2013 ON THE FILE OF THE RENT
CONTROL COURT (MUNSIFF), TALIPARAMBA
REVISION PETITIONER/RESPONDENT/RESPONDENT:
PAROTTOKATH ISMAIL
AGED 33 YEARS
S/O KUNDILE PURAYIL HAMSA, BUSINESS, RESIDING AT PULIMPARAMBA,
TALIPARAMBA AMSOM, KUPPAM DESOM, KANNUR DISTRICT, PIN 670 141
BY ADVS.
SRI.MATHEW KURIAKOSE
SRI.G.GIREESH
RESPONDENT/APPELLANT/PETITIONER:
CHITTARIKADAVATH SHEREEF
AGED 45 YEARS
S/O MOIDEEN, BUSINESS, RESIDING AT PULIMPARAMBA, TALIPARAMBA
AMSOM, KUPPAM DESOM, KANNUR DISTRICT, PIN 670 141
R1 BY ADV. SMT.VIDHYA. A.C
R1 BY ADV. SRI.A.C.VENUGOPAL
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02.03.2021, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
RCR No.130/2019 2
ORDER
Dated this the 2nd day of March 2021
Ziyad Rahman A.A. , J.
This revision is filed by the tenant challenging the order of eviction
passed by the Rent Control Appellate Authority, Thalassery under Section
11(3) of the Kerala Buildings (Lease and Rent Control)Act, 1965 as per
judgment in R.C.A.
2. The brief facts of this case is as follows:
The rent control petition was filed by the respondent/landlord seeking
an order of eviction of the tenant under Sections 11(2)(b) and 11(3) of the
Kerala Buildings(Lease and Rent Control)Act (hereinafter referred to as
`the Act'). The building was let out to the tenant as per the lease deed dated
16.7.2008 for a monthly rent of Rs.400/-. The tenant is conducting a barber
shop and a beauty parlour in the said building. Later, the rent was enhanced
to Rs.500/- from 1.1.2012 onwards. It was contended by the landlord that
the tenant committed default in payment of rent. It was further contended
that, the wife of the landlord is unemployed and it has become impossible to
run the family by relying upon the income derived by the landlord from his
business. Therefore, the landlord wants the vacant possession of the
building for his wife to run a textile shop in the petition schedule building.
As the tenant refused to vacate the building, the rent control petition was
filed under Sections 11(2)(b) and 11(3) of the Act.
3. The tenant filed objection to the same contending that, the
need put foward by the landlord is not bona fide. The petition schedule
room is not suitable for conducting a textile shop. The wife of the landlord
does not have any experience to conduct business. It was also
contended that, the tenant is depending upon the income derived from
the barber shop for his livelihood and no other rooms are available in the
locality to run the business of the tenant. It was also contended that the
landlord is having other rooms in his possession. On the above grounds,
he prayed for dismissal of the rent control petition. The evidence in this
case consists of exhibits A1 to A2(b) and oral evidence of PW1 from the
part of the landlord. From the side of the respondent/tenant, he got
himself examined as RW1.
4. After the trial, the rent control court dismissed the rent control
petition on both grounds.
5. Challenging the finding of the rent control court under Section
11(3), the landlord filed R.C.A.No.55 of 2015 before the Rent Control
Appellate Authority, Thalasery. After hearing both sides, the rent control
appellate authority reversed the finding of the Rent Control Court under
Section 11(3) of the Act. This revision petition is filed by the tenant under
the above circumstances.
6. Heard the learned counsel for the revision petitioner as also
the learned counsel for the respondent.
7. The main point highlighted by the learned counsel for the
tenant is that, the Rent Control Appellate Authority should not have
passed an order of eviction under Section 11(3) of the Act as it is evident
from the facts and circumstances of the case that, it is hit by the first
proviso to Section 11(3) of the Act. According to the counsel, It has come
out in the cross-examination of PW1 that, five other rooms are under the
ownership of the landlord and therefore no order of eviction should have
been passed in this case. The rent control court even though found that
the need put forward by the landlord is bona fide, the order of eviction
was declined on the ground that it is hit the first proviso in view of the fact
that there were other rooms under his ownership in the same locality.
However, the said finding was reversed by the Rent Control Appellate
Authority on the ground that as per the deposition of PW1, it is discernible
that he is having ownership of some other rooms. However, it is not
stated by PW1 that, the said rooms were in his physical possession.
On the other hand in re-examination it is clearly mentioned by PW1 that
all the said rooms are occupied by tenants. Merely because of the reason
that the landlord has admitted ownership of other buildings in the locality,
the claim put forward by him under Section 11(3) of the Act cannot be
denied. The requirement for attracting first proviso to Section 11(3) of the
Act is that the landlord must be having another building of his own
possession in the same city or town or village. So long as the vacant
possession of the said buildings were not brought on record, it cannot be
said that the first proviso to Section 11(3) is attracted. In this case, there
are no materials to show that the landlord is having vacant possession of
buildings. Therefore, the Rent Control Appellate Authority was correct in
holding that the first proviso is not attracted. We do not find any grounds
for interfering with the said finding. With regard to the application of
second proviso, the Rent Control Appellate Authority already found that,
even though the tenant is depending upon the income derived from the
petition schedule building for his livelihood, he has not discharged his
burden to prove that, no other suitable buildings in the locality is available
to accommodate the business of the tenant. From the materials available
on record, we do not find any ground to interfere with the said finding as
well.
8. In the above circumstances, the only conclusion possible is
that, the landlord is entitled to get an order of eviction under Section 11(3)
of the Act and the revision petition is liable to be dismissed.
9. However, taking note of the fact that the tenant is in
occupation of the petition schedule building from 16.7.2008 onwards, it is
just and proper that some time be granted for vacating the premises. This
is particularly so, the Rent Control Court has found that, the tenant is
depending upon the income derived from the petition schedule building
for his livelihood. In the above circumstances, a lenient view is warranted.
Hence, we hereby grant a time limit of one year from the date of the
order, to vacate the petition schedule building, subject to the following
conditions:
a) The tenant shall file an affidavit before the Rent
Control Court within one month from today undertaking to vacate
the premises within one year from today ;
(b) The petitioner shall pay entire arrears of rent, if any,
within one month from today and shall continue to pay
compensation for use and occupation of the building at the
contractual rate, in future, without any default.
(c) In case of default on the part of the petitioner in
complying with any of the conditions above, the respondent/land
lord shall be at liberty to proceed further, as if no time is granted
by this court for vacating the premises.
Parties shall suffer their respective costs.
Sd/-
A.HARIPRASAD
JUDGE
Sd/-
ZIYAD RAHMAN A.A.
pkk JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE CERTIFICATE DATED
9.8.2018 ISSUED BY THE SECRETARY OF THE
MUNICIPAL COUNCIL TALIPARAMBA.
//TRUE COPY//
P.S. to Judge
