Sahida vs V.C. Purushu
2021 Latest Caselaw 9280 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                             &

        THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

  FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                   RCRev..No.223 OF 2016

AGAINST THE    JUDGMENT IN RCA 6/2014 DATED 12-02-2016 OF
RENT   CONTROL   APPELLATE  AUTHORITY/ADDITIONAL  DISTRICT
COURT, VATAKARA.

AGAINST THE ORDER IN RCP 43/2013 DATED 04-12-2013 OF COURT
OF THE RENT CONTROLLER/MUNSIFF, VATAKARA.


REVISION PETITIONER/APPELLANT/PETITIONER    :

            SAHIDA, AGED 44, D/O. IBRAHIM HAJI,
            EDAKOZHINHIYIL HOUSE, KUNNUMMAKKARA AMSOM,
            DESOM, KUNNMMAKKARA P.O., VADAKARA TALUK,
            KOZHIKODE DISTRICT.

            BY ADVS.
            SRI.R.BINDU (SASTHAMANGALAM)
            SRI.PRASANTH M.P

RESPONDENT/RESPONDENT/RESPONDENT    :

            V.C. PURUSHU, AGED 54, S/O. NANU,
            RESIDING AT VELLACHALAI, NEAR KUNHIPALLY
            RAILWAY GATE, KUNHIPPALLY AMSOM, DESOM,
            CHOMBALA (P.O), VADAKARA TALUK,
            KOZHIKODE DISTRICT, PIN-673 308.



    THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
19.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 R.C.R No.223 of 2016                   2




                   A.HARIPRASAD & ZIYAD RAHMAN A.A, J J.

                   --------------------------------------
                              R.C.R No.223 of 2016
                   --------------------------------------
                       Dated this the 19th day of March, 2021


                                    ORDER

A.Hariprasad, J

Heard the learned counsel for the revision petitioner. Despite

service of notice on the respondent in the year 2017, there is no

appearance. We anxiously perused the records.

2. Revision petitioner is the landlord, who lost an application for

eviction filed under Section 11(2)(b) and 11(3) of the Kerala Buildings

(Lease and Rent Control) Act, 1965 (in short 'the Act'), finding that the

protection afforded under second proviso to Section 11(3) of the Act is

available to the tenant. Learned counsel for the revision petitioner

contended that the authorities below committed serious mistakes in

assessing the benefit of second proviso to Section 11(3) of the Act.

3. Short facts, necessary for disposal of the case, are as follows :-

Tenant/respondent is in possession of the petition schedule room on

an agreement to pay a monthly rent of Rs.900/- to the landlord/petitioner.

The tenant wilfully kept rent in arrears and despite sending a statutory

notice, rent arrears was not cleared.

4. In addition to that, the petitioner bona fide requires the

building to start a retail medical shop for her daughter, who was doing 3 rd

year B.Pharm degree course at that time. According to the averments in the

petition, petitioner's daughter is depending on the petitioner for availing an

accommodation for conducting the business which is essential for their

livelihood. With these averments, the petition was filed.

5. The tenant/respondent opposed the application disputing the

quantum of arrears of rent and also the bona fide need set up by the

landlord/petitioner.

6. Before the Rent Control Court, PW's 1 and 2 and RW1

testified. Exts.A1 to A3 and Ext.B1 and B2 are the documents produced by

the contestants. Ext.C1 and C1(a) are the Commissioner's report and plan .

7. The authorities below on finding that the tenant has deposited

admitted arrears of rent from the date of demand till the date of filing the

petition, the ground under Section 11(2)(b) of the Act was disallowed

against the petitioner. In our view, there is no mistake in the approach by

the authorities in this regard.

8. However, the question regarding evictability of the tenant

under Section 11(3) of the Act is seriously challenged before us. The

authorities below found that the need set up by the petitioner for bona fide

occupation of her daughter to start a medical shop has not been effectively

controverted by the tenant. However, the protection of second proviso was

afforded to the tenant by the Rent Control Court finding that the tenant has

adduced some evidence to show that he is living out of the income derived

from the trade in the petition schedule building. It is a well settled

proposition in law that the two limbs contained in the second proviso to

Section 11(3) of the Act have to be conjunctively proved by the tenant and

the burden is entirely on him. The Rent Control Court, on flimsy reasons,

found that the tenant could establish that there is no suitable building

available in the locality to shift his business. Reasons stated, therefor, are

not convincing because the tenant has not adduced any positive proof to

show that no vacant building is available in the locality. On this score, the

Rent Control Appellate Authority in paragraph 17 has clearly entered a

finding stating that the limb in the second proviso to Section 11(3) of the

Act requiring the tenant to prove that no suitable accommodation is

available has not been established by the tenant. Despite that finding, the

Appellate Authority also confirmed the order of eviction.

Having regard to the facts and circumstances, we find that the

analysis of evidence on second proviso to Section 11(3) of the Act and the

finding entered thereon by the authorities below are incorrect. Hence, we

are inclined to allow the revision petition in the following manner :

The revision petition is allowed in favour of the petitioner

granting an order of eviction under Section 11(3) of the Act. The

tenant/respondent shall vacate the premises within a period of one month,

failing which, the revision petitioner is free to execute the order.

A. HARIPRASAD, JUDGE.

ZIYAD RAHMAN.A.A, JUDGE amk