Kerala High Court
Sreenilayathil Lekha Ramachandran vs Othayoth Rukhiya on 20 May, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
RCREV. NO. 224 OF 2022
AGAINST THE JUDGMENT DATED 11.08.2022 IN RCA NO.58 OF 2021 OF RENT
CONTROL APPELLATE AUTHORITY/ADDITIONAL DISTRICT COURT, VATAKARA
ARISING OUT OF THE ORDER DATED 23.09.2021 IN RCP NO.91 OF 2015 OF
THE RENT CONTROLLER/MUNSIFF COURT, VATAKARA
REVISION PETITIONER/APPELLANT/RESPONDENT :
SREENILAYATHIL LEKHA RAMACHANDRAN
AGED 59 YEARS
W/O RAMACHANDRAN ,BUSINESS,SREE NILAYAM,
CHANGOTH VAYIL, PONMERI AMSOM,
PARAMBIL DESOM, PONMERI PARAMBIL PO,
VATAKARA TALUK, KOZHIKODE DIST-673542.
BY ADV ZUBAIR PULIKKOOL
RESPONDENTS/RESPONDENTS/PETITIONERS :
1 OTHAYOTH RUKHIYA,
AGED 42 YEARS
D/O IBRAHIM, CHATHOTH HOUSE,
CHOROD AMSOM AND DESOM,VATAKARA TALUK,
KOZHIKODE DISTRICT 673104.
2 SAITHALAVI C H,
S/O. IBRAHIM, CHATHOTH HOUSE,
CHOROD AMSOM AND DESOM,VATAKARA TALUK,
KOZHIKODE DIST- 673104.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.C.R No.224 of 2022 2
AMIT RAWAL & EASWARAN S. , JJ.
-------------------------
R.C.R No.224 of 2022
-----------------------------------
Dated this the 20th day of May 2024
ORDER
AMIT RAWAL, J.
The present petition is directed against the concurrent
findings of the Rent Controller and Appellate authority allowing the
rent petition of the respondents/landlord and upholding the
eviction in R.C. No.58 of 2021.
2. Succinctly the facts in brief are as under:
The 1st respondent/landlord instituted a rent petition bearing
R.C.P. No.91 of 2015 by impleading himself and his brother
seeking the eviction of the petitioner-tenant initially under Section
11 (2)(b) of the Kerala Buildings (Lease and Rent Control) Act,
1965. The petition was dismissed on 26.8.2017. However, the
appellate authority vide order dated 24.7.2019 in R.C.A No.184 of
2017 remanded the matter back to the Rent Controller for fresh
consideration with liberty to adduce further evidence as well as to
carry out amendment. Accordingly, amendment was carried out
and the plea as available under Section 11(3) of the Act was
added. None of the parties after the remand led any fresh
evidence, except that the landlord examined himself after the
remand and the amendment on account of the plea of bonafide
need. The petitioner-tenant objected to the aforementioned
grounds stating that the respondent No.2, the brother of
respondent No.1-landlord was not dependent on him and infact he
was employed, therefore, there was no bonafide need. Since the
parties were at variance, after the remand the learned Rent
Controller framed the following issues:
(i) Whether the first petitioner is in bonafide need of the
petition schedule shoproom for P.W.1?
(ii) If so, whether the respondent had established that
the petitioners are in possession of any vacant rooms of
their own in the same city, village or town?
(iii) If so, whether the petitioners had established special
reason for non-occupation of the vacant room/rooms in
their possession?
(iv) Whether the respondent had proved the dual
conditions under the second proviso to Section 11(3) of
The Act?
(v) If so, whether the petitioners are entitled to an order
of eviction under Section 11(3) of The Act?
(vi) What are the appropriate orders to be passed?
(vii) What is the order as to costs?
3. The following witnesses and documents have been placed
on record:
Petitioner's Witness:-
PW1 : 05.04.2021 Saithalavi C.H., S/o Ibrahim
Petitioner's Exhibits:-
A1 25.03.2011 Rent Agreement entered into between
Rukhiya and Lekha Ramachandran
A2 16.12.2014 Copy of Lawyer notice sent by Sri. Sunil
Kumar K.L., Advocate to Smt. Lekha
Ramachandran
A3 07.12.2014 Postal Receipt
A4 19.12.2014 Postal Acknowledgment Card
Respondent's Witness :
RW1 03.08.2017 C.V. Ramachandran, S/o Andy C.V.
Respondent's Exhibits :
B1 19.12.2014 Lawyer notice sent by Sri. Sunil K.L.,
Advocate to Smt. Lekha Ramachandran.
4. It is evident that after the remand the landlord has
stepped into the witness box on 5.4.2021 in support of the plea of
bonafide need, but tenant did not appear.
5. On analysis of the evidence brought on record the learned
Rent Controller allowed the petition. The appeal bearing R.C.A.
No.58 of 2021 preferred against the order of the Rent Controller
was also dismissed.
6. Learned counsel appearing on behalf of the petitioner-
tenant, in support of the revision petition made the following
submissions:
The brother of the landlord-petitioner No.1 who was arrayed
as the petitioner No.2 in the rent petition- respondent No.2 herein,
to a specific question in the cross examination, admitted that he
was employed and getting a salary of Rs.350/- per day, thus, the
entire plea of no avocation or dependency stood evaporated. The
premises in question is 23 kms away from the place of residence.
No concrete evidence has been placed on record to prove the
dependency of the brother-petitioner No.2 in the rent petition upon
respondent No.1. Non appearance of the tenant after the remand
cannot be fatal for examining the stand of the landlord by the
appellate authority being the first court of fact and law. The
petitioner is wholly dependent upon the income derived from the
shop in dispute and would suffer a lot in case the eviction is
ordered. It is only a desire but not a need. The element of desire
cannot be a ground for eviction.
7. On the other hand, the learned counsel appearing for the
respondent- landlord supported the finding and submitted that the
concurrent finding of the fact and law cannot be re-appreciated
until and unless there is a gross illegality and perversity.
8. We have heard the counsel for the parties and appraised
the paper book.
9. An attempt was made by the petitioner-tenant to take the
advantage of the proviso added under Sub-section 3 of Section 11
for non suiting the landlord on the ground of personal necessity on
the premise that adjacent premises are available and vacant.
Except bald pleadings, no concrete evidence has been placed on
record much less assistance of Advocate Commissioner was taken.
No reasoning have been assigned in belying the categoric stand of
the landlord after the remand for seeking the eviction on the
ground of bonafide need, that is the dependency of the brother -
the petitioner No.2 in the rent petition. A person cannot be
permitted to stay idle and sit at home, has to earn for the
livelihood. That cannot be a ground for non suiting the landlord.
We do not find any illegality or perversity in the concurrent finding
of the learned Rent Controller and the appellate authority.
No ground for interference is made out. RCR is dismissed.
Appellant is granted one month time to vacate the premises, from
the date of receipt of a certified copy of this judgment.
Sd/-
AMIT RAWAL, JUDGE
Sd/-
EASWARAN S., JUDGE
NS
