Kerala High Court

Jude vs Fathima Xavier on 12 June, 2023

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
     THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                               &
         THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
   MONDAY, THE 12TH DAY OF JUNE 2023 / 22ND JYAISHTA, 1945
                      RCREV. NO. 68 OF 2023
     AGAINST THE ORDER IN RCA 40/2018 OF THE RENT CONTROL
 APPELLATE AUTHORITY (ADDITIONAL DISTRICT & SESSIONS COURT -
               VIII ERNAKULAM) DATED 31.10.2022
ORDER IN RCP 20/2014 OF THE RENT CONTROL COURT COURT (MUNSIFF
                  COURT) KOCHI DATED 11.9.2018
REVISION PETITIONER/APPELLANT/RESPONDENT:

          JUDE, AGED 54 YEARS
          S/O. XAVIER, RESIDING AT PADINJATTUMURI HOUSE,
    1     KUMBALANGHI PO, KOCHI-682007,
          KUMBALANGHI VILLAGE,
          KOCHI TALUK, PIN - 682007
          BY ADVS.
          ANEESH JAMES
          JIJI THOMAS
          M.D.BEENA


RESPONDENT/PETITIONER:

          FATHIMA XAVIER
          AGED 71 YEARS
          W/O. LATE P. A. XAVIER,
          RESIDING AT PANACHIKKAL HOUSE,
          UNNI & RAMESH ROAD,
          THOPPUMPADY PO,
          THOPPUMPADY VILLAGE, KOCHI TALUK,
          ERNAKULAM DISTRICT, COCHIN, PIN - 682005
     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 12.06.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Rc Rev.68 of 2023
                                       2




    A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
                  ......................................................
                          RC(Rev.)No.68 of 2023
              .................................................................
               Dated this the 12th day of June, 2023


                                    ORDER

Mohammed Nias. C.P. J.

The tenants, respondents in RCP Nos.19 of 2014 and 20 of 2014 on

the files of the Rent Control Court, Kochi, have filed this revision,

aggrieved by the common order in RCA Nos.40 of 2018 and 41 of 2018

rejecting the appeals preferred by them confirming the orders of eviction.

2. The Rent Control Petitions were filed by the respondent herein,

claiming that she is the owner of the shop rooms involved in the petition.

The tenant in RCP No.20 of 2014 was running a soda-filling unit, while the

tenant in RCP No.19 of 2014 was running a barber shop. Landlord

claimed that she reconstructed the two-storied building, including the

rooms which are the subject matter in these cases, by availing huge

amount as loan from the bank and that the rental income from the

building is not sufficient to pay the debts incurred by the petitioner for

reconstructing the rooms. The petitioner is a senior citizen and has no

fixed income or means to support herself independently other than the Rc Rev.68 of 2023

rental income. The petitioner, in order to start a business to support

herself, obtained a franchise of Milma ice creams and obtained licence

from the Kumbalangi Grama Panchayath for conducting an ice cream

parlour on 20.09.2013, and accordingly, an agency agreement was entered

into by the landlord. The ice cream parlour that the landlord conducted is

functioning in a shop in a building owned by the petitioner's sister. The

petitioner's building is situated in a commercially important area and

suitable for businesses like an ice cream parlour, and the petition schedule

rooms are situated on the ground floor facing Kumbalangi-Ezhupunna

main road. The petitioner bonafide requires the petition schedule room for

running the Milma dairy and ice cream parlour.

3. Respondents in both cases contended that the petitioner is a

multi-millionaire having several properties in the same locality as well as

other places in the city and that there is a shop room in her possession

lying vacant, and if she wants she can shift the business to those shop

rooms. There is no special reason stated by the landlord for wanting the

petition schedule rooms, and the need projected is not genuine.

4. The respondent in RCP 19 of 2014 had a further contention that

the original respondent in the said RCP died, and after that, his son is

running a hair-cutting saloon, and he has no other means to look after his

family and no other suitable buildings available in the locality to run his

business.

Rc Rev.68 of 2023

5. The trial court considered the applications jointly, treating RCP 19

of 2014 as the leading case. After considering the evidence PWs 1 to 3

examined on the side of the petitioner and Exts.A1 to A10 and the

evidence of RWs1 to 7 on the side of the respondent and marking Exts.B1

to B8 and referring to Exts.X1 to X7 and C1 series, the trial court found

that the claim preferred by the landlord is bonafide and directed the

respondents/tenants to put the landlady in possession of the rooms under

Section 11(3) of the Act.

6. Against the same, appeals were filed contending that the need put

forward was not genuine. After re-appreciating the entire evidence, the

appellate court concurred with the trial court's findings that there was

nothing to show that the need projected by the landlord was not bonafide.

It considered the fact that the landlady was doing business of running an

ice cream parlour in a building which is the backside of the petition

schedule building, and there was scope for such business and the desire to

shift to a better building owned by her cannot be said to be not bonafide.

The tenant's further contention that the landlord has stopped the business

also cannot be treated as a reason to non-suit her as the tenant cannot

force the landlord to do a business that is running at a loss. The appellate

court also considered whether the tenants were entitled to the protection

of provisos under Section 11(3) of the Act. Under the first proviso, it found

that though two rooms in the upstairs were vacant, the landlord stated as

PW1 that she wanted to shift her ice cream parlor business to the rooms Rc Rev.68 of 2023

facing the main road, and this should be taken as a special reason that will

not dis-entitle the landlord in a claim under Section 11(3). The benefit of

the second proviso to the tenant was also considered, and it was found

that both the tenants did not prove the two ingredients in the second

proviso.

7. After having heard the learned counsel for the petitioner and on a

perusal of the judgment impugned before us with the available records,

we find the appellate court has taken into consideration every contention

urged before it in the right perspective after appreciating the evidence,

both oral and documentary. The findings so entered cannot be termed as

illegal, improper, or irregular warranting interference under Section 20 of

the Act. None of the findings entered into by the appellate court affirming

the orders of eviction passed by the rent control court calls for any

interference. There is no merit in the revision petition; accordingly, the

same is dismissed.

At this juncture, learned counsel for the revision petitioner sought

time to vacate the premises. Taking into account the facts and

circumstances of the case, we deem it appropriate to grant ten months'

time, 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 Rc Rev.68 of 2023

undertaking that he will surrender vacant possession of the

petition schedule building to the petitioner-landlord within ten

months from the date of this order and that, he shall not induct

third parties into possession of the petition schedule building, and

further he 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.