Kerala High Court
K K Hassan Kunhi vs Dr. Muhammed Ali M on 21 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.
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
RCREV. NO. 102 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 06.03.2024 IN RCA NO.96 OF 2023
OF ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY ARISING OUT
OF THE ORDER/JUDGMENT DATED 31.03.2023 IN RCP NO.6 OF 2021 OF
ADDITIONAL MUNSIFF COURT, KANNUR
REVISION PETITIONER(S)/RESPONDENT/PETITIONER:
K K HASSAN KUNHI
AGED 69 YEARS
S/O ABDUL RAHIMAN, BUILDING NO. TV 33/2016,
KODI FOOTWEAR, FORT ROAD, KANNUR, PIN - 670001
BY ADVS.
M.K.SUMOD
VIDYA M.K.
THUSHARA.K
NAMITHA GEORGE
RESPONDENT(S)/APPELLANTS/RESPONDENTS:
1 DR. MUHAMMED ALI M
AGED 76 YEARS
S/O HASSAN KUNHI FATHIMA FARHEEN, THATTIYODE P.O.,
KOODALI, THATTIYODE DESOM, KANHIRODE DESOM,
KANNUR, PIN - 670592
2 T P ANSILA
AGED 46 YEARS
W/O M. FAISAL RABIYA MANZIL, NEAR GOVT. HIGH SCHOOL,
VALAPATTANAM AMSOM DESOM, KANNUR, PIN - 670592
3 DR T P NISHI
AGED 48 YEARS
W/O DR. P. FARHAD FATHIMA FARHEEN, THATTIYODE P.O.,
KOODALI, THOTTIYODE DESOM, KANHIRODE DESOM,
KANNUR, PIN - 670592
RCREV. NO. 102 OF 2024 -2-
4 T P JERRISH
AGED 38 YEARS
S/O DR. MUHAMMED ALI M. FATHIMA FARHEEN,
THATTIYODE P.O., KOODALI, THOTTIYODE DESOM,
KANHIRODE DESOM, KANNUR, PIN - 670592
5 T P SHAMEEM
AGED 46 YEARS
S/O DR. MUHAMMED ALI M. FATHIMA FARHEEN,
THATTIYODE P.O., KOODALI, THOTTIYODE DESOM,
KANHIRODE DESOM, KANNUR, PIN - 670592
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RCREV. NO. 102 OF 2024 -3-
ORDER
AMIT RAWAL, J.
1. Petitioner tenant was not successful in
protecting the possession of the tenanted premises upto
this Court and the eviction order was upheld by this
Court vide order dated 12.12.2019, though during the
pendency of the proceedings before the higher courts,
tenant had instituted Execution Petition No.66 of 2017.
2. The possession of the schedule property was
delivered to the landlord on 28.09.2020. Section 11(12)
of the Kerala Buildings (Lease and Rent Control) Act
entitles the tenant to seek the re-possession of the
property in case the landlord does not occupy without
reasonable cause within one month of the date of
obtaining possession, or having so occupied it, vacates it
without reasonable cause within six months of such date.
Concededly, during the period when the possession was
handed over, there were restrictions owing to the
COVID-19 pandemic. The quarantine period as fixed by
the respective states in the said month was fourteen(14)
days.
3. Petitioner tenant by taking the benefit of the
aforementioned provisions instituted RCP No.6 of 2021
and sought the assistance of the Rent Controller for
appointment of the Advocate Commissioner. The report
of the Advocate Commissioner revealed that the
premises was unoccupied and filled with waste. The
landlord sought the eviction for running an Ultrasound
Sonography Centre. On receipt of the aforementioned
petition landlord gave the explanation in the objection
petition. Both the parties were at variance and the Rent
Controller framed the following issues:
"1. Whether the respondents did not occupy
the petition schedule building within one
month of date of obtaining possession
without any reasonable cause?
2. Whether the petitioner is entitled to get
an order of eviction of respondents? If so
on what ground?
3. What is the order as to costs?"
Judgment of the previous court and appellate court was
brought on record A2 and A3 and Advocate Commission
Report C1 and Photographs C2. Rent Controller vide
judgment dated 31.03.2023 allowed the petition.
Learned Appellate Court in an appeal preferred by the
landlord reversed the findings. It is in this background
petitioner tenant has approached this Court.
4. Mr.M.K.Sumod, assisted by Adv.Namitha
George learned counsel appearing on behalf of the
petitioner submitted that appellate authority failed to
notice the testimony of the landlord, categorically stated
that the steps to occupy the property and run the
business was taken only after the appointment of the
Advocate Commissioner. No reasonable cause has been
shown to wriggle out from the applicability of the
provisions of Section 11(12) of the Act, much less failed
to file any objection to the report of the Advocate
Commissioner.
5. We have heard learned counsel for the
petitioner and appraised the paper book.
Concededly, the eviction order was upheld on
12.12.2019 when the rent provision preferred by the
tenant was dismissed. Possession was handed over on
28.09.2020. Landlord has explained the objection that
owing to the COVID-19 there were restrictions for
undertaking the scanning of pregnant woman from one
or two months to four months. There was no possibility
of setting up the scanning center much less no
technicians and other staff was available for undertaking
the renovation and repairs. Realising bleak prospects,
changed the vocation by setting up a mobile shop as per
the permission granted on 12.01.2021. We are of the
view that the findings of the appellate authority are
based upon the applicability of the provisions as landlord
has been able to explain the reasons of not occupying the
premises and rightly thwarted the claim of the tenant.
The order is perfectly legal and justified.
No ground for interference is made out. Rent
Control Revision petition is dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
vv
