Mohanan vs Pulickal Biju
2023 Latest Caselaw 4141 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT

        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                             &
          THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

  FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945

                   RCREV. NO. 43 OF 2023

  AGAINST THE ORDER/JUDGMENT IN RCA 3/2021 OF RENT CONTROL
    APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE - II),
                           KALPETTA

RCP 21/2015 OF RENT CONTROLLER (MUNSIFF MAGISTRATE, SULTHAN
                         BATHERY)

REVISION PETITIONER/APPELLANT/RESPONDENT:

MOHANAN
AGED 60 YEARS, S/O.KUNHANANDAN,
RESIDING AT VATTAKULATHIL HOUSE, KATTAYAD, SULTHAN
BATHERY VILLAGE, SULTHAN BATHERY TALUK, WAYANAD
DISTRICT, PIN - 670731

BY ADVS.
JIKKU SEBAN GEORGE
DEEPTI SUSAN GEORGE


RESPONDENT/RESPONDENT/PETITIONER:

 PULICKAL BIJU,
 AGED 49 YEARS, S/O.NARAYANAN, RESIDING AT
 PULICKAL HOUSE, POOTHADI AMSOM DESOM, ATHIRATTUKUNNU
 P.O, SULTHAN BATHERY TALUK, WAYANAD DISTRICT,
 PIN - 673596

 BY ADV A.R.NIMOD(K/539/2008) (CAVEATOR)


      THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
28.03.2023, THE COURT ON 31.03.2023 DELIVERED THE FOLLOWING:
 RCRev No.43 of 2023                          2



                           P.B SURESHKUMAR &

                             SOPHY THOMAS, JJ.

                 -------------------------------------------

                      Rent Control Revision No.43 of 2023

                 -------------------------------------------

                       Dated this the 31st day of March, 2023



                                  ORDER

Sophy Thomas, J.

The tenant in RCP No.21 of 2015 on the file of Rent Control

Court, Sultan Bathery is the revision petitioner herein, assailing

the judgment of the Rent Control Appellate Authority in RCA No.3

of 2021.

2. The petitioner in RCP No.21 of 2015 is the son of the

original landlord. His case was that, his father, as per settlement

deed dated 01.11.2013, settled the petition schedule property in

favour of the petitioner and hence he became the landlord. He

filed RCP No.21 of 2015 for evicting the tenant under Section

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

Control) Act, 1965 (hereinafter referred as 'the Act'). His case

was that, the rent was in arrears and he was in bonafide need of

the tenanted premises for starting a stationery business. The

tenant opposed that petition contending that, the rent was never

in arrears and the petitioner had no locus standi to file such a

petition, as he was having no right over the petition schedule

room. According to him, the schedule shop room was taken on

lease from the father of the petitioner on 27.04.2012. He never

knew that the petitioner became the owner of that property.

Moreover, since one year had not been elapsed from the date of

transfer, the petition filed by the petitioner was not maintainable.

The tenant was in possession of the schedule shop room since

1990 and the income derived from the business in that shop room

was the main source of his livelihood. The petitioner was having

income from other sources and the desire expressed by him to

start a stationery business in the schedule shop room, was not

bonafide. The schedule shop room was not suitable for starting a

stationery business. The only intention of the petitioner was to

evict the tenant from the schedule shop room by whatever

means.

3. Before the Rent Control Court, PW1 was examined and

Exts.A1 to A5, C1 and C1(a) were marked from the side of the

landlord, RW1 was examined and Exts.B1 to B10 were marked

from the side of the tenant.

4. Since the tenant deposited the rent arrears upto

February, 2021, the eviction sought under Section 11(2)(b) was

rejected. The Rent Control Court considered the relief sought

under Section 11(3) of the Act and found that the intention of the

landlord to start a stationery business in the schedule shop room

was a bonafide one and the tenant was not eligible to get the

benefit of the first and second provisos to Section 11(3) of the

Act. So, as per order dated 26.03.2021, the Rent Control Court

ordered eviction under Section 11(3) of the Act.

5. Aggrieved by the order of eviction, the tenant preferred

RCA No.3 of 2021 before the Rent Control Appellate Authority,

Kalpetta. The appellate authority affirmed the order of the Rent

Control Court finding that, the need projected by the landlord was

a bonafide one and the tenant was not eligible to get the benefit

of the provisos under Section 11(3) of the Act. Aggrieved by the

concurrent orders of eviction under Section 11(3) of the Act, the

tenant has come up with this revision.

6. We are called upon to find out whether there is any

illegality, irregularity or impropriety in the judgment impugned,

warranting interference of this Court.

7. Heard learned counsel Sri.Jikku Seban George, appearing

for the revision petitioner/tenant and learned counsel Sri.A.R

Nimod, appearing for the respondent/landlord.

8. In the revision, the main ground urged by the revision

petitioner is that the respondent could not prove his title over the

schedule shop room and so, he had no locus standi to file the

Rent Control Petition. He relied on the common law principle of

'sublato fundamento, cadit opus' which means 'a foundation

being removed, the superstructure falls'. He would submit that,

as the respondent had no title over the schedule shop room, he

will not get locus standi to file a petition for evicting the tenant.

The original landlord is the father of the respondent herein, and

the revision petitioner would say that, he had no information

regarding transfer of the schedule shop room to the respondent.

The main reason for such an averment seems to be on the ground

that the Rent Control Court rejected Ext.A2, copy of settlement

deed No.3834. In paragraph 6 of the order of the Rent Control

Court, it was clearly mentioned that Ext.A2 was rejected since it

was a photocopy. It does not mean that the respondent in whose

favour the petition schedule shop room was settled by his father,

will lose his right, title or interest over that property, because of

the fact that the photocopy of that settlement deed was refused

to be admitted in evidence by the Rent Control Court.

9. On going through the order of the Rent Control Court, it

could be seen that, though the tenant contended that the

petitioner in the RCP had no right over the petition schedule

property and he was bound to prove the title etc., it was not seen

taken up as a serious contention. No evidence also was let in by

the tenant challenging the title of the petitioner/landlord in the

schedule shop room. Though he is challenging the title of the

petitioner/landlord, he failed to explain how that challenge is

maintainable. He has no case that the father of the

petitioner/landlord was not competent to execute such a

settlement deed in favour of his son. He has also no case that the

document executed by the father of the petitioner/landlord was

vitiated in any manner known to law. He has no case that the

petitioner/landlord was incompetent or legally prohibited from

accepting such a settlement from his father. The tenant did not

know about such a transfer, is not a ground to attack that

document. The photocopy of that document was refused to be

accepted by the Rent Control Court also, is not a ground to

challenge the title conferred as per that document. In the appeal

before the Rent Control Appellate Authority also, the challenge

regarding title was not made an issue. Only before this Court,

such a contention was advanced seriously, mainly because of the

fact that, Ext.A2 photocopy of the settlement deed was seen

rejected by the Rent Control Court.

10. The tenant is admitting that, he received Ext.A3 lawyer

notice sent by the landlord, in which the settlement deed

executed in favour of the petitioner in the RCP was clearly

mentioned. Ext.A2 settlement deed was dated 01.11.2013. The

Rent Control Petition was filed in the year 2015. So, it was after

one year of the transfer of the property, the RCP was filed. For all

these reasons, the challenge regarding title of the schedule shop

room is untenable.

11. Now coming to the order of eviction under Section

11(3) of the Act, the Rent Control Court as well as the appellate

court concurrently found that the need projected by the landlord

was bonafide. He was having no job or income and so, he wanted

to start a stationery business in the schedule shop room. During

cross examination, PW1 admitted that he is in possession of three

other rooms. But, the Rent Control Court as well as the appellate

authority found that the schedule shop room was facing National

Highway, as evident from Ext.B1 plan and so, it was the most

suitable room to start the stationery business. So, the landlord

has shown special reason to get vacant possession of the

schedule shop room for starting the stationery business. The

landlord was not duty bound to plead in his petition regarding

other rooms in his possession which, according to him, were not

sufficient to meet his requirement. So, the revision petitioner

was not eligible to get the benefit of the first proviso to Section

11(3) of the Act.

12. Regarding the second proviso to Section 11(3) of the

Act, though the tenant produced Ext.B2 series register to show

that, he was mainly depending upon the income from the

business in the schedule shop room for his livelihood, it was not

showing the income derived from that business. He failed to

produce any other documents such as income tax returns, to

prove his income from the schedule shop room. Moreover, it was

brought out in evidence as per Ext.A5 that, the tenant was

conducting a business named 'Arjun Ayurvedic Clinic' in the shop

room owned by his wife. Though he contended that, it was not

his business, during cross examination, he conceded that the

municipal licence in relation to the business 'Arjun Ayurvedic

Clinic' is in his name. So, we can safely conclude that the income

from the business in the schedule shop room was not the main

source of his livelihood, as he is running another branch of

ayurvedic medicine under the name and style 'Arjun Ayurvedic

Clinic' in the shop room owned by his wife. Ext.C1 commission

report also substantiates that fact.

13. From the foregoing discussion, we find no illegality,

irregularity or impropriety in the impugned judgment of the Rent

Control Appellate Authority in RCA No.3 of 2021, by which the

order of the Rent Control Court in RCP No.21 of 2015 was

confirmed. So, the revision is liable to be dismissed.

Having regard to the facts and circumstances of the case,

we deem it appropriate to grant six months time to the tenant to

surrender vacant possession of the premises, on condition that he

shall file an affidavit before the Rent Control Court on or before

22.05.2023, unconditionally undertaking to vacate the tenanted

premises within six months, and agreeing to pay the arrears of

rent, if any, within one month and continue to pay the monthly

rent before the due dates, till he vacates the premises.

With these directions, the revision stands dismissed.

Sd/-

P.B SURESH KUMAR JUDGE

Sd/-

SOPHY THOMAS JUDGE

smp/29.03.2023