Kerala High Court
Anil Kumar vs K.V.Khalid on 11 February, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
RCRev.No.231 of 2024
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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
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
RCREV. NO. 231 OF 2024
AGAINST THE JUDGMENT DATED 11.09.2024 IN RCA NO.28 OF 2021
OF ADDITIONAL DISTRICT COURT KOZHIKODE-III / II ADDITIONAL MACT,
KOZHIKODE ARISING OUT OF THE ORDER DATED 21.06.2021 IN RCP NO.22
OF 2018 OF MUNSIFF MAGISTRATE COURT, PERAMBARA
REVISION PETITIONER/APPELLANT/RESPONDENT:
ANIL KUMAR
AGED 51 YEARS
S/O. ACHUTHAN, CHITHIRA JEWELRY, NEAR OLD POLICE
STATION, PERAMBRA, KOYILANDY TALUK, KOZHIKODE.,
PIN - 673525
BY ADVS.
P.B.SUBRAMANYAN
P.B.KRISHNAN (SR.)
SABU GEORGE
B.ANUSREE
MANU VYASAN PETER
MEERA P.
RESPONDENT/RESPONDENT/PETITIONER:
K.V.KHALID
AGED 67 YEARS
S/O. MUHAMMED HAJI, SONNET HOUSE, MELADI AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT., PIN - 673522
BY ADV R.K.MURALEEDHARAN
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
11.02.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RCRev.No.231 of 2024
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ORDER
P.Krishna Kumar, J.
The tenant who suffered an order of eviction
under Section 11 (3) of the Kerala Buildings (Lease and
Rent Control) Act, 1965 ('the Act', for short)
challenges the concurrent findings of the Rent Control
Court and the Rent Control Appellate Authority, by
invoking the revisional jurisdiction of this court.
2. The short facts which are necessary for the
disposal of this case are as follows:
The respondent pleaded that the petitioner
herein had taken on lease the petition scheduled shop
room from the respondent as per a rental agreement on
16.08.2000 for a monthly rent of Rs.3,000/-. Later the
rent has become due for several months and thus the
respondent moved the court and obtained an order for
eviction on the ground of arrears of rent but then the
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petitioner paid the arrears. In the year 2013, with
the intention to start a business in IT consumables,
the respondent again filed a petition to evict the
petitioner, but he did not prosecute the same as his
Visa got extended in the meantime. The respondent
further contended that at present, as he has completed
the age of 60 years, he is not in a position to
continue his job abroad and thus he bonafide require
the vacant possession of the petition scheduled room
for enabling his wife to start a tailoring shop
therein. It is also pleaded that his wife is his
dependent.
The petitioner resisted the eviction petition by
contending that, if the respondent has any bonafides in
raising the abovesaid contentions, he would have
prosecuted the eviction petition which was filed in the
year 2013. It is also contended that the petition
scheduled shop room is not suitable to start such a
business and the respondent and his wife have many
other business abroad and hence they do not require the
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vacant possession of the building. It is also alleged
that the attempt of the respondent is to somehow obtain
the vacant possession of the building for leasing out
the same for higher rent.
3. During the trial, the respondent was
examined as PW1 and proved Exts.A1 to A4 in his
evidence. The petitioner was examined as RW1 and got
marked Exts.B1 to B15 in evidence. Ext.C1 and C2 report
and plan of the Commissioner were also marked in
evidence.
4. Heard the learned counsel appearing for the
petitioner as well as the respondent.
5. The petitioner forcefully contended that
the impugned order ought not have been passed as the
landlord had earlier filed a petition for eviction in
the year 2013 and it was dismissed for non-prosecution
and thus the present eviction petition is barred by
Section 15 of the Act. It is also contended that the
wife of the respondent was not examined during the
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trial even when the need projected was on account of
his wife.
6. We find no reason to accept the contention
based on Section 15 of the Act for the obvious reason
that the present petition is filed after a period of
five years and the ground raised in the same was
different from the purpose for which he moved the
previous eviction petition. That apart, Section 15 bars
a subsequent application filed under any of the
provisions of Section 11 where the landlord had earlier
raised a claim with substantially same issues and those
issues had been finally decided by the court. We are
also not impressed by the argument that the wife ought
to have been examined during the trial. The requirement
of the vacant possession of the building is indeed of
the respondent even when it is for the occupation of
his wife. This is evident from the language employed in
Section 11(3) (".... if he bonafide needs the building
for his own occupation or for the occupation by any
member of his family...."). In that case, examination
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of any one of them is sufficient to prove the bona fide
need.
7. Though the learned counsel appearing for the
petitioner raised certain contentions to assail the
eviction order passed under Section 11(3) of the Act,
we find no reason to re-evaluate the correctness of
those findings of facts. In Ubaiba v. Damodaran [(1999)
5 SCC 645] the Honourable Apex Court held that the power
of revision under Section 20 of the Act should not be
exercised to reappreciate the evidence and to
substitute an independent conclusion in place of the
findings arrived at by the Rent Control Court/Appellate
Authority. In the absence of any material to show that
there is perversity or gross irregularity in the
findings of the Courts of the first and second
instances, this court is not expected to reconsider the
correctness of the concurrent factual findings as to
the bona fide need projected by the landlords. The
petitioner herein failed to point out any such
exceptional circumstances.
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8. Therefore, this Rent Control Revision
Petition is dismissed. However, considering the fervent
plea made by the learned counsel for the petitioner,
seven months' time is granted to the petitioner to
surrender vacant possession of the petition schedule
shop room to the respondent, subject to the following
conditions:
(i) The petitioner shall file an affidavit
before the Rent Control Court or the
Execution Court, as the case may be,
within two weeks from the date of receipt
of a certified copy of this order,
expressing an unconditional undertaking
that he will surrender vacant possession
of the petition schedule shop room to the
respondent-landlord within seven months
from the date of this order and that, he
shall not induct third parties into
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possession of the petition schedule shop
room, and further, he shall conduct any
business in the petition schedule shop
room only on the strength of a valid
licence/permission/consent issued by the
local authority/statutory authorities;
(ii) The petitioner shall deposit the
entire arrears of rent as on date, if any,
before the Rent Control Court or the
Execution Court, as the case may be,
within one month from the date of receipt
of a certified copy of this order, and
shall continue to pay rent for every
succeeding month, without any default;
(iii) Needless to say, failing to comply
with any one of the conditions stated
above, the time limit granted by this order
to surrender vacant possession of the
petition schedule shop room will stand
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cancelled automatically, and the landlord
will be at liberty to proceed with the
execution of the order of eviction.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
