Kerala High Court
Vaisyaravida Nafeesu vs Abdulla.C.P on 9 August, 2023
RCR 123/2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
RCREV. NO. 123 OF 2023
RCA 38/2020 OF RENT CONTROL APPELLATE AUTHORITY/DISTRICT COURT ,
THALASSERY
RCP 105/2015 OF RENT CONTROL COURT/MUNSIFF COURT, THALASSERY
REVISION PETITIONER/APPELLANT/RESPONDENT
VAISYARAVIDA NAFEESU
AGED 56 YEARS
D/O ABDULLA HAJI, VAISYARAVIDA HOUSE, PANOOR AMSOM,
PANOOR DESOM, P.O. PANOOR, THALASSERY, KANNUR DISTRICT,
PIN - 670692
BY ADV G.S.REGHUNATH
RESPONDENT/RESPONDENT/PETITIONER:
ABDULLA.C.P
S/O C.T. MUHAMMED, RESIDING AT SUHAS, KUTTIMAKKOOL,
THIRUVANGAD AMSOM, THIRUVANGAD DESOM, THALASSERY TALUK,
KANNUR DISTRICT, PIN - 670103
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCR 123/2023 2
DR.A.K.JAYASANKARAN NAMBIAR
&
MOHAMMED NIAS C.P., JJ
............................................................
RCRev. No.123 of 2023
............................................................
Dated this the 9th day of August, 2023
ORDER
Mohammed Nias C.P., J
The revision petitioner, tenant in RCP No.105/2015, filed by the
respondent/landlord herein under Section 11(3) and 11(4)(v) of the Kerala
Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as 'the
Act'), is aggrieved by the judgment in RCA No.38/2020 on the files of the Rent
Control Appellate Authority/District Court, Thalassery, that affirms the order of
eviction. In this revision, we are only concerned with the correctness of the order
passed under Section 11(3) of the Act.
2. The landlord contended that the building was let out to the tenant
respondent, and the current monthly rent payable is Rs.5,250/- as per order in
RCP 127/2013 filed by him before the Rent Control Court/Munsiff Court,
Thalassery. He also contended that he wants to start a business in the sale of
textiles and readymade garments in the petition schedule building and that he
does not have any other vacant rooms in his possession for the said purpose and
accordingly claimed eviction under section 11(3) of the Act.
3. The tenant resisted the petition contending that the petition scheduled
building was in the possession of one Sudheer as a tenant, and while he was in
possession of the building as a tenant, he died, and thereafter Sudheer's father
contacted the tenant's husband with an offer to sell the tenancy right of the
petitioner including the furniture therein. Pursuant to the said agreement, an
amount of Rs.10,000/- was received from the tenant's husband as advance, and
subsequently, the legal heirs of the tenant had entered into an agreement
whereby the tenancy right was transferred in favour of the respondent. This
agreement was executed with the knowledge and consent of the landlord of the
building. A rent kachit was executed between the tenant and C.T. Muhammad as
document No.814/2005 of SRO, Panoor. It is also the contention of the tenant that
the petitioner's father had received an amount of Rs.3,00,000/- from the tenant,
and therefore, the petitioner has no right to terminate the tenancy right without
returning the said amount. It is also her contention that the petitioner was
conducting business in Bangalore and that he has several buildings in his
possession, and the need urged is only a ruse for evicting the tenant. She also
claims the protection of the provisos and sought a dismissal of the petition.
4. The Rent Control Court, after considering the evidence of PWs 1 and 2,
Exts.A1 and A2 and C1 and also the evidence of the advocate commissioner and
considering the evidence of RWs 1 to 3 on the side of the respondents and
Exts.B1 to B24, found that the need projected was bona fide and rejected the
contentions raised by the tenant with respect to payment of amounts to the
petitioner's father as a reason for not ordering eviction. It was also found that
the tenant failed to discharge the burden to prove both limbs of the second
proviso, and accordingly, the benefit of the said proviso was not extended to the
tenant. The trial court thus ordered eviction under Section 11(3) of the Act and
rejected the claim for eviction under Section 11(4)(v) of the Act. The tenant
challenged the same in RCA 38/2020, wherein the appellate court affirmed the
orders of eviction passed by the Rent Control Court. Aggrieved by the same, this
revision is filed.
5. The learned counsel for the revision petitioner Sri.G.S.Reghunath
argued before us that the findings of the Rent Control Appellate Authority are
clearly wrong and as it did not take into account the contention of the tenant that
she had paid huge amounts for obtaining the tenancy right. He contended that
she had paid Rs.10,00,000/- to the previous tenant and Rs.3,00,000/- to the father
of the petitioner, and without getting a return of the said amounts, the petition
for eviction should not have been entertained. It is also argued earlier in RCP
127/2013 filed for fixing fair rent that the landlord had claimed an amount of
Rs.30,000/- per month, but the court below had fixed Rs.5,250/- per month. The
said fact also should have been taken into account while considering the
bonafides of the petitioner and further argued that the landlord had gone abroad
by executing a power of attorney and, therefore, it was clear that he had no
intention to start the proposed business and thus the petition for eviction ought
to have been rejected.
6. Having heard the learned counsel for the revision petitioner and
perusing the available records, we are not in a position to accept his contentions.
As rightly held by the appellate authority, there are suits instituted by the tenant
for recovery of amounts from the persons to whom she claimed to have paid, and
the said fact cannot have a bearing on the application preferred under the
provisions of the Act seeking eviction. The appellate authority also found that the
tenant even disputes the gift deed executed by the landlord's father to his son,
the petitioner. As rightly observed by the appellate authority, the tenant could not
have challenged the said transaction or the legality of the gift deed. Further, the
argument that the execution of a power of attorney and the fact that the
petitioner was employed in Dubai at the relevant time also cannot militate
against the need projected by him. Until the petitioner obtains possession of the
petition schedule shop room, it is not the requirement of law that he should be
sitting idle, and the petitioner's employment in such circumstance cannot be
taken as going against the need sought. The appellate court had also found that
the evidence of RW1 is binding on the tenant as he was a witness on the part of
the tenant and who supported the case of the landlord. The further argument
made by the tenant that the landlord's father had received the rent on some
occasions and, therefore, the title of the petitioner is in doubt also cannot be
accepted.
7. As regards the need, the appellate court concurred with the findings of
the Rent Control Court, and we find nothing in the said findings supported by the
evidence on record. As regards the applicability of the first proviso, going by the
evidence of RW1, who deposed that he was not aware if the petitioner was having
any other rooms in his possession, the tenant could not have invoked the first
proviso. As regards the second proviso, RW1 deposed that the available
buildings in the locality require a higher rent to be paid; the same cannot be
treated as a reason for holding the said limb in favour of the tenant. That apart,
the evidence of RW1 showed that he had constructed a building with 27 rooms
along with three partners, and therefore, the courts below rightly rejected the
claim for protection under the second proviso to the tenant. in the facts and
circumstances of the case, we do not find the appellate authority's order to be
irregular, improper, or illegal, warranting interference under Section 20 of the
Act. Accordingly, we dismiss this revision.
8. At this juncture, the learned counsel for the revision petitioner/tenant
sought reasonable time to vacate. Having considered the submissions and taking
into account the facts and circumstances of the case, we deem it appropriate to
grant six months' time to the revision petitioner, subject to the following
conditions:
" (i) The respondent-tenant in the Rent Control Petition shall file an affidavit
before the Rent Control Court or the Execution Court, as the case may be,
within two weeks from the date of receipt of a certified copy of this order,
expressing an unconditional undertaking that she will surrender vacant
possession of the petition schedule building to the petitioner-landlord within
six months from the date of this order and that, she shall not induct third
parties into possession of the petition schedule building, and further she
shall conduct any business in the petition schedule building only on the
strength of a valid licence/permission/ consent issued by the local
authority/statutory authorities;
(ii) The respondent-tenant in the Rent Control Petition shall deposit the
entire arrears of rent as on date, if any, before the Rent Control Court or
the Execution Court, as the case may be, within four weeks from the date
of receipt of a certified copy of this order, and shall continue to pay rent
for every succeeding month, without any default;
(iii) Needless to say, in the event of the respondent-tenant in the Rent
Control Petition failing to comply with any one of the conditions stated
above, the time limit granted by this order to surrender vacant possession
of the petition schedule building will stand cancelled automatically, and
the landlord will be at liberty to proceed with the execution of the order
of eviction.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.
JUDGE
okb/
