Dr.Mubaris Ahammed vs Dr.Mubaris Ahammed
2021 Latest Caselaw 8056 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                &

         THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

    TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

                       RCRev..No.55 OF 2021

  AGAINST THE JUDGMENT IN RCA 107/2019 OF RENT CONTROL APPELLATE
   AUTHORITY/ADDITIONAL DISTRICT COURT, VATAKARA DATED 5.2.2021

AGAINST THE ORDER IN RCP 12/2018 OF RENT CONTROLLER/MUNSIFF COURT,
                    NADAPURAM DATED 22.02.2019


REVISION PETITIONER/APPELLANT/RESPONDENT:

             DR.MUBARIS AHAMMED
             AGED 30 YEARS
             S/O AHAMMED, THARAMMAL HOUSE, AJANJERY AMSOM, DESOM,
             VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 544.

             BY ADVS.
             SMT.K.REEHA KHADER
             SRI.O.T.JABISH
             SHRI.MOHAMMED ASLAM P.S

RESPONDENT/RESPONDENT/PETITIONER:

             KANHIRAKKANDIYIL RABIYA
             AGED 42 YEARS
             D/O POKKER HAJI, KUNHIPARAMBATH HOUSE, VALAYAM AMSOM,
             DESOM, VATAKARA TALUK, VALAYAM P.O.KOZHIKODE
             DISTRICT, PIN-673 571.

              BY ADV. SRI.ZUBAIR PULIKKOOL

     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
09.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 R.C.R.No.55/2021
                                      2



                                JUDGMENT

Dated this the 9th day of March 2021

DR. KAUSER EDAPPAGATH, J.

The tenant before the Courts below challenges the eviction

ordered under Section 11(3) of the Kerala Buildings (Lease and Rent

Control) Act, 1965 (for short 'the Act').

2. The respondent before us is the landlady. She field eviction

petition under Section 11(3) of the Act alleging that her husband and

son are jobless and they wanted to start a business of their own in the

petition schedule building to seek out the livelihood of the entire

family. She contended that she has no other building in her possession

for the said purpose. The oral demand made by the landlady to vacate

the rooms was turned down by the tenant and hence she filed RCP.

3. The tenant filed counter statement. The landlord-tenant

relationship was admitted. The bonafide need set up was denied. The

tenant sought for protection of 2 nd proviso to Section 11 (3) of the Act.

It is contended that the he is conducting a Unani Clinic in the petition

schedule building and the income derived from it is his main source of

livelihood. He also contended that there are no other vacant suitable

building available in the locality.

4. Parties went on trial. On the side of the landlady, her R.C.R.No.55/2021

husband was examined as PW1. No oral evidence was adduced by the

tenant. The Rent Control Court, after analysing evidence found that

landlady is in bonafide need of the petition schedule building and

accordingly the petition was allowed directing the tenant to give

vacant possession of the petition schedule shop room to the landlady.

5. In appeal filed by the tenant, the eviction order was

confirmed. Challenging the concurrent findings of the courts below

this revision has been filed by the tenant.

6. The landlady has entered appearance through counsel. We

heard both sides.

7. To prove the bonafide need projected by the landlady, the

husband of the landlady was examined as PW1. He reiterated the

need alleged in the petition. The need alleged is that he along with his

son wanted to start a hotel business in the petition schedule building.

It has come out in evidence that the husband of the landlady is now

jobless. He lost his job in Gulf about 6 years back. The financial

capacity of the parties is also not in dispute. The son of the landlady is

also without any job. Even though PW1 was cross examined, nothing

tangible was extracted from his cross examination to discredit his

testimony. On an entire analysis of the evidence of PW1, both the

courts below found that the landlady succeeded in proving the

bonafide need. Moreover, no rebuttable evidence had been adduced

by the tenant.

R.C.R.No.55/2021

8. Even though the tenant has sought for protection under the

2nd proviso to Section 11(3) of the Act, he did not adduce any

evidence. Needless to say that the burden is entirely upon the tenant

to prove both ingredients of the 2nd proviso to Section 11(3) of the Act

which he failed to discharge. We find no reason to interfere with the

findings on facts of the courts below in the exercise of our revisional

jurisdiction under Section 20 of the Act.

9. The learned counsel for the revision petitioner sought one

year time to vacate the premises. We feel that time can be granted till

31.12.2021 on the following conditions.

1. The tenant shall pay the arrears of rent, if any, within one month

and shall continue to pay the monthly rent without fail.

2. An affidavit shall be filed by the tenant before the court below

undertaking that he will vacate the building unconditionally on or

before 31.12.2021.

3. The affidavit as above shall be filed on or before 8.4.2021.

The parties shall suffer their respective costs. In the result,

revision petition is dismissed subject to the above conditions.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

                                       DR. KAUSER EDAPPAGATH, JUDGE
kp                 True copy
                     P.A to Judge
 R.C.R.No.55/2021





                         APPENDIX
PETITIONER'S EXHIBITS:

ANNEXURE A1          CERTIFIED COPY OF THE JUDGMENT IN RCA
                     107/2019 ON THE FILE OF RENT CONTROLLER

APPELLATE AUTHORITY/ADDL DISTRICT COURT VATAKARA DATED 5.2.2021

ANNEXURE A2 CERTIFIED COPY OF THE JUDGMENT IN RCP 12/2018 ON THE FILE OF RENT CONTROLLER/ MUNSIFF, NADAPURAM DATED 22.2.2019