Chermapatta Aboobacker vs Chakkara Makoolsuma Surendran
2022 Latest Caselaw 11479 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                               &
       THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
 FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA,
                              1944
                   RCREV. NO. 279 OF 2019
  AGAINST THE JUDGMENT DATED 18.03.2019 IN RCA NO.58 OF
  2018 OF ADDITIONAL DISTRICT COURT KOZHIKODE-III / II
  ADDITIONAL MACT, KOZHIKODE CONCURRING WITH THE COMMON
 ORDER IN RCP NO.18 OF 2015 DATED 21.12.2017 OF MUNSIFF
                 MAGISTRATE COURT, PERAMBARA
REVISION PETITIONER:

          CHERMAPATTA ABOOBACKER, AGED 64 YEARS, S/O ALI,
          BUSINESS, CHENOLY AMSOM AND CHERUVALOOR DESOM,
          KOYILANDY THALUK, PO CHENOLY, KOZHIKODE
          DIST.PIN-673 525.

          BY ADVS.
          MANJERI SUNDERRAJ
          SRI.A.SANOOJ



RESPONDENTS:

   1      CHAKKARA MAKOOLSUMA SURENDRAN, W/O SURENDRAN,
          64YEARS, KOOTHALIAMSOM, DESOM, KOOTHALY.P.O,
          PERAMPRA, KOYILANDY THALUK, KOZHIKODE DIST.

   2      CHEROTHPUTHUKKUDY NIDHIN SIVASANKARAN, S/O LATE
          SIVASANKARAN, 34 YEARS, PUTHIYNGDIAMSOM,
          ATHANIKKALDESOM, KOZHIKODE THALUK, KOZHIKODE
          DISTRICT.

   3      CHEROTHPUTHUKKUDY NIMNA SIVASANKARAN, D/O LATE
          SIVASANKARAN, AGED 32, PUTHINGDIAMSOM,
          ATHANIKKALDESOM, KOZHIKODETHALUK, KOZHIKODE
          DISTRICT.
 RCREV. NO. 279 OF 2019

                               ..2..


        BY ADVS.
        SRI.PHILIP ANTONY CHACKO
        SRI.P.M.SEBASTIAN




     THIS   RENT   CONTROL     REVISION   HAVING    COME    UP    FOR
ADMISSION   ON   09.12.2022,    THE    COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 RCREV. NO. 279 OF 2019

                                     ..3..




                       J U D G M E N T

A. Muhamed Mustaque, J

This revision petition was filed by the

tenant. Both the authorities below ordered

eviction under Section 11(3) of the Kerala

Buildings (Lease and Rent Control) Act, 1965 (for

short "Act") on the ground of bona fide need of

the landlady. The need was projected for the son

of the landlady. He wants to start a Bakery-cum-

Cool bar business in the tenanted premises

including in the adjacent rooms. The landlady

also initiated eviction proceedings for the other

rooms as well.

2. The tenant is conducting a jewelry

business in the tenanted premises. Both the

authorities below found that the tenant is not

entitled to have protection under second proviso

to Section 11(3) of the Act.

RCREV. NO. 279 OF 2019

..4..

3. According to the tenant, he was inducted

in 1998 and there was a petition for eviction on

similar ground in the year 2006 and that was

compromised by enhancing the rent. Therefore, it

is submitted that the landlady lacks bona fides.

4. The son of the landlady was examined as

PW1. He deposed in tune with the petition. The

authorities below found that there was nothing in

his evidence to disbelieve the intention of the

son of the landlady to start a business. Merely

for the reason that the landlady has initiated an

eviction petition earlier and that was

compromised with the tenant, the same cannot be

operated as a bar seeking an eviction on the same

ground, which was urged earlier. The bona fide

need is essentially relates to a human mind and a

perplexed human mind takes decision in accordance

with the circumstances and time. One may have

thought of starting such business a decade above,

retracted from the same for many reasons, that RCREV. NO. 279 OF 2019

..5..

does not mean he would retract from such a

decision when it is projected after a decade.

All that matters for a Court is to assess whether

the bona fide need projected is with an oblique

motive or not. On factual analysis of pleadings

and evidence, both the authorities below came to

a conclusion that there is nothing on record to

attribute mala fides to the landlady.

5. The tenant also failed to prove that he

was depending upon the trade or business carried

out in the tenanted premises as the main source

of income and there are no other shop rooms in

the locality to shift the business.

6. In such circumstances, invoking

revisional jurisdiction, we cannot re-appreciate

the evidence and to come into a different

conclusion. We dismiss this revision petition.

However, we grant time upto 30.07.2023 to the

tenant to vacate the building on the following

terms and conditions:

RCREV. NO. 279 OF 2019

..6..

(i) The tenant shall file an undertaking

before the Rent Controller that he will surrender

the vacant possession of the building within a

period mentioned as above. That undertaking

shall be filed within a period of four weeks.

(ii) The tenant will continues to pay the

rent till the vacant possession is handed over.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

SHOBA ANNAMMA EAPEN JUDGE PR