Kerala High Court
Chandroth Tharuvayi Haji vs E. M Chandran on 5 February, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
RCRev.No.122 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
RCREV. NO. 122 OF 2022
AGAINST THE JUDGMENT DATED 04.04.2022 IN RCA NO.77 OF
2020 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ARISING
OUT OF THE ORDER DATED 29.01.2020 IN RCP NO.27 OF 2016 OF
MUNSIFF COURT, NADAPURAM
REVISION PETITIONERS/RESPONDENTS/PETITIONERS:
1 CHANDROTH THARAVYAYI HAJI
AGED 60 YEARS
S/O. KUNHALI, SWASTHAM, CHEKKIAD AMSOM, VEVOM DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673509
2 THERUKANDIYIL KUNHABDULLA HAJI
AGED 63 YEARS
S/O. MAMMAD, SWASTHAM, CHEKKIAD AMSOM, VEVOM DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673509
3 VALIYA VALIKKOTH POCKER HAJI
AGED 70 YEARS
S/O. KUNHABDULLA HAJI, SWASTHAM, THUNERI AMSOM,
MUTAVANTHERI DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN - 673505
4 KANDOTH MOOSA HAJI
AGED 60 YEARS
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S/O. MAMMU, SWASTHAM, MUCHILOTTUMMAL HOUSE, THUNERI
AMSOM, MUTAVANTHERI DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN - 673505
5 MAIMOONATH M.K
AGED 48 YEARS
D/O. KUNHABDULLA HAJI, NELLIKALATHIL HOUSE, THUNERI
AMSOM, MUTAVANTHERI DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN - 673505
6 SHAHIDA V
AGED 42 YEARS
D/O. KUNHABDULLA HAJI VAYALIL HOUSE, PERODE AMSOM AND
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN -
673504
7 SALEEMA
AGED 40 YEARS
D/O. KUNHABDULLA HAJI, CHELAPPURATH HOUSE, SWASTHAM,
UMMATHOOR AMSOM, PARAKKADAVE DESOM, VATAKARA TALUK,
KOZHIKODE DISTRICT, PIN - 673509
8 RAFEEQ T. P
AGED 38 YEARS
S/O. KUNHABDULLA HAJI, SWASTHAM, THAIPPARAMABATH
HOUSE, CHEKIAD AMSOM, PARAKKADAVE DESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT, PIN - 673509
9 SHAMSEENA
AGED 36 YEARS
D/O. KUNHADBULLA HAJI, SWASTHAM, THALIKKANDIYIL
HOUSE, EYYAMKODE AMSOM, DESOM, VATAKARA TALUK,
KOZHIKODE DISTRICT, PIN - 673101
BY ADV R.K.MURALEEDHARAN
RESPONDENT/APPELLANT/RESPONDENT:
E. M CHANDRAN
AGED 60 YEARS
S/O. NARAYANAN, BUSINESS, ERAVATTOOR AMSOM, DESOM,
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NOW WORKING 'SREYAS', TEXTILES, THALASSERI, ROOM NO.
NP/VIII/34IC.C2, C8, C9 NADAPURAM AMSOM, DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673542
BY ADVS.
P.A.AUGUSTINE(AREEKATTEL)
RONY AUGUSTINE
CRISTO S.PARIYARAM
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
25.01.2025, THE COURT ON 05.02.2025 PASSED THE FOLLOWING:
RCRev.No.122 of 2022
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ORDER
P. Krishna Kumar, J.
The petitioners are the landlords who filed an
eviction petition under Sections 11(3) and 11(4)(ii)
of the Kerala Buildings (Lease and Rent Control) Act
('the Act', for short) for evicting the respondent
from the building leased out to him. The Rent Control
Court allowed the petition under Section 11(3) and
directed the respondent to vacate the petition-
scheduled shop rooms. By the impugned order, the Rent
Control Appellate Authority set aside the said finding
and dismissed the Rent Control petition on the ground
that the petitioners have no bonafide in seeking
eviction.
2. The landlord-tenant relationship is not in
dispute. The petitioners are the co-sharers of the
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petition schedule shop rooms. They contended that they
intend to put up a large-scale textile and readymade
cloth business in wholesale and retail in the petition
scheduled shop room as they do not have any engagement
at present. The first, second and fifth petitioners
jointly owned together with several other persons a
building in the same locality and the rental income
from the above said buildings was not sufficient to
meet their daily needs and accordingly they decided to
set up a business for themselves. It is further
pleaded that when the petitioners expressed their need
to the respondent in March 2014, instead of
voluntarily vacating the building, the respondent
initiated a suit against them with false allegations.
3. The respondent contended that the petitioners
have no bonafide need to start a new business and they
have several other buildings in joint and separate
ownership in the very same city and there are many
vacant rooms in the said buildings. It is also
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contended that the respondent filed a civil suit
against the petitioners when they objected to the
attempt of the respondent to extend his business, at
the behest of one Rashid who is occupying a rented
room adjacent to the petition scheduled shop rooms.
4. Heard the learned counsel appearing for the
petitioners and as well as the respondent.
5. Having perused the entire case records, in
particular the deposition of PW1, we are unable to
uphold the views expressed by the Rent Control
Appellate Authority. The Appellate Authority observed
as follows:
"17. The evidence of PW1 during cross-
examination shows that the first petitioner has
a huge building near the petition schedule
building. According to PW1 the shop rooms in
the said buildings are required for the
bonafide need of children of the first
petitioner. However the children of first
petitioner also is stated to be bonafide need
of the petition schedule building. They are
impleaded as supplemental petitioners No. 6 to
10. The allegation in the petition is that
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petitioner Nos.2 and 4 are employed. PW1 admits
that petitioners No.1, 2 and 5 has a separate
building on the northern side of petition
schedule building. It is a three storied
building. PW1 is unable to exactly state the
number of rooms available in the said building.
However, he deposed that 10 to 15 rooms are
available in the ground floor of the said
building facing the road. It was let out to the
tenants only about one or two years back. That
proves that after the filing of the Rent
Control Petition these rooms are let out to the
tenants."
6. One of the reasons upon which the Rent Control
Appellate Authority entered into an adverse finding
against the petitioners is that about 10 to 15 rooms
were available on the ground floor of the building
owned by petitioners No.1, 2 and 5 and those rooms
were let out to the tenants about one or two years
back. But the Appellate Authority failed to appreciate
that the tenanted building is jointly owned by five
persons and what they pleaded and proved was that all
of them jointly require the vacant possession of the
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same for starting a business of their own. In that
case, even if one or more of them have a vacant
building, it cannot be said that the petitioners could
have started the intended business in that building.
The petitioners, together, have a separate identity
and integrity when they do a joint business. PW1, the
third petitioner, deposed before the court that apart
from the first, second, and fifth petitioners, their
children are also the joint owners of the said
building. Thus, the petitioners cannot be asked to
accommodate such a business in a building jointly
owned by some among them together with a few other
individuals, even if those individuals are their
children.
7. The Appellate Authority further erred in
observing against the petitioners on the ground that
the first petitioner had another vacant building. When
the third petitioner adduced evidence on behalf of the
petitioners, he explained very well, during cross-
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examination, the disadvantages of the said building.
According to him, the wife and children of the first
petitioner intend to start a business of their own in
the said building. There is nothing on record to
discredit this version.
8. It is to be noted that the petitioners have not
suppressed the fact that the petitioners No. 1, 2 and
5 own another building in the locality. They
specifically pleaded about the said fact in the
petition. Significantly, the petition scheduled
building consists of a very large hall and four rooms
and most of them are on the ground floor. It is the
definite case of the petitioners that the said part of
the building is advantageous to them for the proposed
business. Though the third petitioner was cross-
examined at length, nothing was elicited to discredit
him as to the bonafide need projected by the
petitioners. As the Appellate Authority as well as the
Rent Control Court found that the respondent is not
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entitled to get the protection of the second proviso
to Section 11(3) of the Act, there is no need to re-
evaluate the said factual findings. Hence, the
petitioners are entitled to get an eviction order
against the respondent. In the above circumstances, we
find that the impugned order is liable to be set
aside.
Therefore, the revision petition is allowed, and
the impugned order is set aside. The order passed by
the Rent Control Court is restored. The respondent
shall vacate the premises within two months from
today.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
