K.Nanu vs Chonokadavath Muhammed Faisal
2024 Latest Caselaw 14269 Ker

Kerala High Court

K.Nanu vs Chonokadavath Muhammed Faisal on 29 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.
     WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
                        RCREV. NO. 97 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 27.05.2023 IN RCA NO.169 OF 2015
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, THALASSERY
ARISING OUT OF THE ORDER/JUDGMENT DATED 31.08.2015 IN RCP NO.111
OF 2013 OF MUNSIFF COURT, THALASSERY
REVISION PETITIONER(S)/SUPPLEMENTAL APPELLANTS/NOT PARTY IN RCP:

    1     K.NANU
          AGED 71 YEARS
          S/O.KUNHIRAMAN, ANUGRAH, KAYYATH ROAD,
          THALASSERY TALUK, KANNUR DISTRICT., PIN - 670101

    2     K.ASHOKAN
          AGED 66 YEARS
          S/O.KUNHIRAMAN, KAYYADATHIL, MOILOTHARA.P.O.,
          THOTTIPALAM (VIA), KOZHIKODE DISTRICT., PIN - 673513

    3     K.LEELA
          AGED 62 YEARS
          W/O.SUKUMARAN, NELLATTUKUNIYIL HOUSE,
          KARTHIKAPALLY.P.O., VILLYAPPILLY (VIA),
          KOZHIKODE DISTRICT., PIN - 690516

          BY ADVS.
          D.ARUN BOSE
          K.VISWAN


RESPONDENT(S)/RESPONDENT/PETITIONER:

          CHONOKADAVATH MUHAMMED FAISAL
          AGED 49 YEARS
          S/O.LATE HAMZA, RESIDING AT ROSE MAHAL,
          THALASSERY AMSOM, VADIKKAKAM DESOM,
          THALASSERY TALUK, KANNUR DISTRICT., PIN - 670101
     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RCREV. NO. 97 OF 2024
                           -2-



                         ORDER

AMIT RAWAL, J.

1. The present petition is directed against the

concurrent findings of fact in RCP No.111 of 2013,

whereby eviction of the petitioners have been ordered by

the Rent Controller and affirmed by the appellate

authority on the ground of personal necessity.

2. Respondent - landlord sought the eviction of

the petitioners in RCP No.111 of 2013. Actually there

were two rent petitions and two appeals filed by two

tenants. We are only confined to the decision rendered

in RCP No.111 of 2013 and RCA No.169 of 2015.

Eviction was sought on the ground of bona fide need

under Section 11(3) of the Kerala Building (Lease and

Rent Control) Act, 1965 and in the other rent petition, on

the ground of subletting under Section 11(4) of the

Kerala Building (Lease and Rent Control) Act, 1965. RCREV. NO. 97 OF 2024

3. Respondent - landlord stated that the premises

in occupation of the tenant consisted of two shop rooms

in the downstair portion and one hall on the upstair

portion. Petitioners had taken out the schedule building

No.9/376 situated in the downstair portion and 9/377 in

the upstair portion. He needs the building to start a large

scale hardware business after having returned from Gulf.

4. Petitioners contended that the bona fide need

of the landlord was a figment of imagination. They have

been in occupation of the building for the last thirty six

(36) years, conducting the business of grocery and is

dependent upon the income from the business and there

is no other building available in the vicinity enabling the

petitioners-tenants to conduct their business. It is

impossible for the landlord to conduct the business of

hardware. Landlord examined two witnesses - PW1 and

PW2 - and brought on record documents Exts.A1 to A5

whereas petitioner-tenant examined two witnesses RW1 RCREV. NO. 97 OF 2024

and RW2 and marked Exts.B1 to B56 documents; Ext.C1

is court Commissioner's report.

5. Learned Rent Controller, after analysis of the

evidence, found that the need was bona fide. Appeal

preferred by the petitioners-tenants has also been

dismissed. Learned counsel appearing on behalf of the

petitioners - tenants submitted that no doubt the

relationship between the landlord - respondent was

admitted but the fact remains respondent - landlord has

not been able to prove the bona fide need. A specific

plea with regard to the dependency on the business was

taken. Landlord - respondent has failed to place on

record any evidence qua availability of a building in the

vicinity where petitioners - tenants could have shifted

and continued to earn their livelihood. The building is

situated in a remote area and the contemplated business

of hardware would not be profitable. Respondent -

landlord had other building in possession, but had not RCREV. NO. 97 OF 2024

occupied and the attempt is only to fetch higher rent.

6. We have heard counsel for the petitioner and

appraised the paper book.

7. No concrete evidence has been placed on

record on behalf of the petitioners - tenants regarding

owning of the building by the respondent - landlord. It is

settled law that the desire of the landlord cannot be put

to trial at the whims and fancies of the tenant. Tenants

cannot dictate to the landlord whether the business

would be profitable or not. The Court below has to sit in

the arm chair of the landlord to see the necessity as

pleaded. RW2 in cross examination admitted that the

scheduled building is five minutes walkable from MG

road, thus the business intended to be set up by landlord

cannot be said to be non-profitable.

8. On analysis of the evidence, we concur with the

findings of the court below on the point that all the

witnesses examined on behalf of the respondent - RCREV. NO. 97 OF 2024

landlord have consistently stated regarding the need.

For the reason aforementioned, we do not find any

illegality and perversity. No ground for interference is

made out in the revision petition. Revision Petition

stands dismissed.

Sd/-

AMIT RAWAL JUDGE

Sd/-

EASWARAN S. JUDGE vv