Kerala High Court

Muhammed Rafi vs Noorjahan on 2 December, 2022

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                              &
         THE HONOURABLE MRS. JUSTICE C.S. SUDHA
 FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA,
                          1944
                 RCREV. NO. 320 OF 2019
  AGAINST THE JUDGMENT DATED 13.06.2019 IN RCA NO.52 OF
 2014 OF III RENT CONTROL APPELLATE AUTHORITY, THRISSUR
  CONCURRING WITH THE COMMON ORDER IN RCP NO.71 OF 2009
    DATED 31.01.2014 OF RENT CONTROL COURT,CHAVAKKAD
REVISION PETITIONER/APPELLANT/RESPONDENT:

         MUHAMMED RAFI,
         AGED 53 YEARS,
         S/O. PULLIKALAKATH MUHAMMED HABEEBULLA HAJI,
         PALLIPRAM DESOM, VALAPPAD VILLAGE,
         CHAVAKKAD TALUK.

         BY ADV RAJIT


RESPONDENT/RESPONDENT/PETITIONER:

         NOORJAHAN,
         AGED 52 YEARS,
         W/O. ABDUL RAZAK, PUTHIYAVEETIL HOUSE,
         NATTIKA VILLAGE, NATTIKA DESOM, NATTIKA P.O,
         CHAVAKKAD TALUK, THRISSUR DISTRICT 680566.

         BY ADVS.
         K.I.SAGEER IBRAHIM



     THIS RENT CONTROL REVISION HAVING COME UP          FOR
ADMISSION ON 02.12.2022, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 R.C.Rev. No.320 of 2019

                                   -: 2 :-




             P.B.SURESH KUMAR & C.S.SUDHA, JJ.
              -----------------------------------------------
                     R.C.Rev. No.320 of 2019
              -----------------------------------------------
         Dated this the 2nd day of December, 2022.


                               ORDER

P.B.Suresh Kumar, J.

The tenant in a proceedings for eviction under

Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and

Rent Control) Act, 1965 (the Act), is the petitioner in this

revision petition.

2. The subject matter of the proceedings is a

shop room. The shop room was let out to the tenant on

23.12.2008 on a monthly rent of Rs.850/-. It is alleged by the

landlady in the eviction petition that the tenant is not paying

rent in respect of the shop room from the month of October,

2009. It is also alleged by the landlady in the eviction petition

that she intends to run a textile business in the shop room,

after evicting the tenant. The tenant disputed the allegation in

the eviction petition regarding arrears of rent. He has also

contended that there is no bona fides in the need set out for R.C.Rev. No.320 of 2019

eviction under Section 11(3) of the Act. According to the

tenant, the landlady is an affluent person who does not need to

do any business and that she does not have the expertise also

in the field of textile business. It was also contended by the

tenant that two other tenants in the very same building were

evicted by the landlady for the very same purpose and after

getting eviction of the premises occupied by those tenants, the

landlady let out the premises to other tenants and that the

need cannot, therefore, be bona fide for that reason also. The

Rent Control Court rejected the contentions raised by the

tenant and allowed the eviction petition on both grounds.

Even though the tenant challenged the decision of the Rent

Control Court in appeal, the Appellate Authority affirmed the

decision of the Rent Control Court. Hence, this revision.

3. Heard the learned counsel for the tenant.

4. It is seen that after the institution of the

eviction petition, the landlady preferred an application under

Section 5 of the Act for fixation of fair rent for the premises.

The said application was allowed by the Rent Control Court

fixing the fair rent of the premises at Rs.2,800/- per month

from 01.05.2010. Even though the said decision was R.C.Rev. No.320 of 2019

challenged by the tenant in appeal, the Appellate Authority

affirmed the decision. The tenant preferred a revision petition

before this Court against the aforesaid decisions of the

authorities as R.C.Rev.No.345 of 2019 and in the said revision

petition, in terms of an interim order passed by this Court on

21.08.2019, this Court stayed the orders of the authorities

below on condition that the tenant shall deposit arrears of the

rent upto date at the rate of Rs.1,500/- per month.

5. The learned counsel for the tenant contended

that the tenant has deposited the arrears of rent upto date in

terms of the interim order passed by this Court on 21.08.2019

in R.C.Rev.No.345 of 2019 and since the tenant is paying rent

for the period thereafter also at the rate of Rs.1500/- per

month, the authorities below ought not have entertained the

eviction petition. The learned counsel has relied on the

decision of the Apex Court in Mohammad Ahmad v. Atma

Ram Chauhan, 2011 KHC 4505, in support of the said

proposition. It was also contended by the learned counsel that

at any rate, insofar as it was admitted by the landlady that she

had instituted proceedings for eviction of two other tenants in

the very same building and on getting vacant possession of the R.C.Rev. No.320 of 2019

said premises, she had let out the same to other tenants, the

authorities below should have held that there is no bona fides

in the claim set out for eviction.

6. We have examined the contentions advanced

by the learned counsel for the tenant. We have also perused

the records of the case.

7. It is seen that the landlady has instituted two

eviction petitions earlier as R.C.P.Nos.30 of 2004 and 31 of

2004 before the Rent Control Court, Chavakkad. Ext.B1 is the

certified copy of the eviction petition in R.C.P.No.30 of 2004. A

perusal of Ext.B1 would show that it is not an application for

eviction on the ground of bona fide need at all. Instead it is an

application filed under Sections 11(2) and 11(4)(i). That apart,

R.C.P.No.30 of 2004 is not instituted in respect of any room in

the building of which the tenanted premises is a part. It is in

respect of a shed adjoining the building. Coming to R.C.P.No.31

of 2004, it is of course, in respect of a shop room which is part

of the building, of which the tenanted premises is also a part.

The materials on record indicate that during the pendency of

the said proceedings, based on compromise, the tenants in

both the proceedings have surrendered vacant possession of R.C.Rev. No.320 of 2019

the premises to the landlady. As far as the premises which is

the subject matter of R.C.P. No.30 of 2004 is concerned, the

landlady has categorically stated in her evidence that the said

shed is not suitable for the business proposed by her. As far as

R.C.P.No.31 of 2004 is concerned, the evidence given by the

landlady is to the effect that at the time when she got vacant

possession of the premises, as she was suffering from various

ailments, she permitted her husband to run spare parts

business in that premises. In other words, it is a case where

the landlady has established special reasons for not occupying

the premises which are the subject matter of R.C.P.Nos.30 of

2004 and 31 of 2004.

8. The contention of the tenant remaining to be

considered is that since the landlady obtained an order fixing

the fair rent for the premises from 01.05.2010, the application

for eviction should not have been entertained by the

authorities below. It is seen that in Mohammad Ahmad, the

Apex Court, while issuing guidelines concerning fixation of fair

rent and related matters, held that if the fair rent payable in

respect of a premises as fixed between the parties is paid by

the tenant, then the landlord shall not be entitled to bring any R.C.Rev. No.320 of 2019

action for eviction at least for a period of five years. The said

decision of the Apex Court has no application, according to us,

to the facts of the present case as the application for fixation

of fair rent is instituted long after the eviction petition. That

apart, even though the fair rent was fixed in the said

proceedings with effect from 01.05.2010, the same was not

paid by the tenant until the eviction was ordered. The eviction

was ordered by the Rent Control Court on 31.01.2014 and the

order of eviction was affirmed by the Appellate Authority in

appeal on 13.06.2019. It was much thereafter on 21.08.2019,

that the tenant obtained interim order in R.C.R.No.345 of 2019.

We have perused the interim order passed in R.C.R.No.345 of

2019. It is seen that the said interim order was passed on an

application preferred by the tenant seeking stay of further

proceedings pursuant to the order fixing the fair rent of the

premises. The said order reads thus:

"There shall be an interim order of stay as prayed for, on the condition that the revision petitioner shall deposit entire arrears of rent at the rate of Rs.1,500/- (Rupees one thousand and five hundred only) per month until disposal of this matter without fail."

R.C.Rev. No.320 of 2019

As evident from the order extracted above, the direction was

issued by this Court in the stay petition. There is nothing on

record to indicate that the tenant has paid the rent at the

aforesaid rate for the period after 21.08.2019 upto date. In the

circumstances, according to us, there is absolutely no merit in

the argument advanced by the learned counsel for the tenant

that the authorities below ought not have entertained the

eviction petition in the light of the order obtained by the

landlady for fixation of fair rent in the subsequent proceedings.

The revision petition, in the circumstances, is

without merits and the same is, accordingly, dismissed.