Remanded

Theekkookkal Abdul Gafoor v. C.O.K.Rasiya

Kerala HC22 Nov 2010RCRev./19/2010

Case brief

AI extract

What is this about?

The High Court set aside the appellate authority's finding that the landlady's need was bonafide and remanded the matter to the Rent Control Court for a fresh decision on bonafides and tenant eligibility. The Court also tentatively re-fixed the rent at Rs. 1,000 per month.

What did the court decide?

The impugned order set aside; RCP remanded for fresh decision on bonafides and eligibility; rent re-fixed at Rs. 1,000 per month from 1.12.2010.

Theekkookkal Abdul Gafoor Vs C.O.K.Rasiya — Property and Title | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932

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RCRev..No. 19 of 2010() --------------------------------RCA.14/2005 of ADDL. DISTRICT COURT, THALASSERY RCP.50/2003 of MUNSIFF COURT, THALASSERY

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REVISION PETITIONER/RESPONDENT/RESPONDENT

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---------------------------------------------------------------------------

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THEEKKOOKAL ABDUL GAFOOR, S/O.IBRAHIM KUTTY,AGED 62 YEARS, "AL-AMRA",NEAR RAILWAY GATE, AZHIYOOR,CHUNKAM,P.O.AZHIYUR.

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BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.ANIL.D.KAITHAKKAL

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RESPONDENT(S): APPELLANT/PETITIONER

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---------------------------------------------------------------

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C.O.K.RASIYA,D/O.THAREKUTTY, AGED 38 YEARS,"SABNOOR", CHETTAMCOON,THALASSERI.

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BY ADV. SRI.ESM.KABEER

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.

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RCR No.19 of 2010

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Dated this the 23^rd November, 2010

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ORDER

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Pius C.Kuriakose, J.

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Under challenge in this revision filed under Section 20 by the tenant is the judgment of the Rent Control Appellate Authority reversing the order of the Rent Control Court dismissing the RCP and remanding the RCP to the Rent Control Court after entering a finding that the need projected by the landlady under Sub Section 3 of Section 11 is bonafide for the limited purpose of enquiring into the tenant's eligibility for protection of the second proviso to Sub Section 3 of Section 11. The landlady sought to evict the tenant on the ground of arrears of rent and the ground of bonafide need for own occupation. The ground of arrears of rent does not any longer survive for consideration and it is submitted by both sides that in this revision, we need to be concerned only with the ground under Sub Section 3 of Section 11. Prior to instituting the RCP, the landlady had issued Ext.A1 lawyer's notice. In that notice, the need which was projected was that the landlady needs the building for the purpose of conducting

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RCR No.19/2010 2

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tailoring business. But when the Rent Control Petition is instituted, to Ext.A1 notice, the tenants sent a reply, Ext.A4 disputing the bonafides. In Ext.A4, the tenant contended that the need is not bonafide and that the landlady has left India for a Gulf Country. However, when the rent control petition was instituted, the need projected by the landlady was to conduct tailoring business in partnership. The tenant in its statement of objections disputed the bonafides of need. It was contended that the landlady has already left India for a Gulf Country and that she does not have any bonafide need to occupy the building for conducting tailoring business. It was also contended that the tenant is entitled for the protection of the second proviso to Sub Section 3 of Section 11. The rent control court enquired into the matter. In the enquiry, the evidence consisted of Exts.A1 to A6 and oral testimonies of PW1, the landlady's brother Usman and that of the tenant RW1.

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The rent control court on evaluating the evidence came to the conclusion that the need projected by the landlady is not bonafide. In view of that finding, the rent control court did not examine the question whether the

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RCR No.19/2010 3

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tenant is entitled for the protection of the second proviso to Sub Section 3 of Section 11. The rent control court dismissed the RCP. The impugned judgment has been passed by the rent control appellate authority considering an appeal filed by the landlady.

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According to the learned appellate authority, the four reasons stated by the rent control court for taking the view that the need is not bonafide are not sufficient reasons. The learned appellate authority would take the view that the deviation between the case stated in Ext.A1 and the one pleaded in the RCP is not of much consequence. The appellate authority would also take the view that in the present case where the landlady intends to start a tailoring business in partnership with her brother, non-examination of the landlady as a witness is not fatal as landlady's prospective partner, her brother has been examined as PW1. The other reasons mentioned by the rent control court were also found to be unsatisfactory. Hence, the appellate authority reversed the finding of the rent control court that the need is not bonafide and found that the need is bonafide. But as the rent control court had not considered the question of the tenant's

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eligibility for protection of the second proviso at all, the RCP was remanded to the rent control court as already indicated.

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In this revision under Section 20, various grounds have been raised assailing the judgment of the appellate authority. The learned counsel for the revision petitioner would address strenuous arguments before us on the basis of those grounds. According to the learned counsel, PW1's version was that in Ext.A1 itself, it was the need to conduct business in partnership which had been projected. The above version is per se incorrect. There are no pleadings at any rate to the effect that PW1 Usman will be the partner of the landlady. PW1's evidence is to the effect that instructions for filing the RCP was imparted by his sister landlady and by another brother, Noorudheen. If that be so, it was Noorudheen and not PW1 who could have give responsible evidence regarding the bonafides of the landlady's need. Since it is the bonafides of the landlady's need that is to be considered, the same can be manifested by the landlady alone. Counsel submitted that the landlady is not in India at all and is living with her husband who is permanently employed in a Gulf Country. The landlady will never be able

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to accomplish her projected need of conducting business in partnership, unless she comes back to Thalassery where the petition schedule building is situate.

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All the submissions of the learned counsel for the revision petitioner were resisted by Sri.ESM Kabeer, the learned counsel for the respondent/landlady. Mr.Kabeer submitted that the version of PW1that he and the landlady will be the partners of the proposed partnership is not shaken in cross examination. That being so, PW1 is equally competent as the landlady to testify regarding the bonafides of the need. Meticulous analysis of pleadings is not to be insisted upon in rent control proceedings which are proceedings of a summary nature. Mr.Kabeer submitted that there is no warrant for interfering with the impugned order which is only a remand order.

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We have very anxiously considered the rival submissions. We have scanned the judgment of the appellate authority as well as the order of the rent control court. True, the impugned judgment is the judgment under which the RCP has been remanded to the rent control court. But we are not prepared to construe the impugned judgment as an innocuous

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RCR No.19/2010 6

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remand judgment. As already stated, there is a concluded finding in the impugned judgment that the need projected by the landlady is bonafide. That finding is also under challenge in this revision.

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The learned appellate authority is certainly right in its observation that in the rent control proceedings strict adherence to rules of pleadings and meticulous analysis of pleadings are not insisted upon. But, in rent control proceedings, especially when the claim is one under Sub Section 3 of Section 11 or under Sub Section 8 of Section 11, the cardinal point to be considered and decided is whether the need projected by the landlady is a genuine and bonafide one. We feel that when the above cardinal point is considered, the circumstances that in Ext.A1, there was not even a whisper regarding the proposed partnership business and the further circumstance that in the RCP no indication at all was given as to who is going to be the partner are circumstances having some moment on the issue. A careful reading of the pleadings of the landlady will show that the bonafide need projected by her is her own. Hence, it is the bonafide need of her to conduct business in partnership

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which is to be established by us. We do not think that on the totality of the circumstance attending on this case, the above need could be established by examining PW1. Especially, when there is no pleading in the RCP that PW1 will be conducting the business in partnership with his sister. We feel that either the landlady herself adduces oral evidence for manifesting the bonafides of the need projected in the RCP or the landlady seeks suitable amendment of the rent control petition. We are, therefore, inclined to set aside the finding of the learned appellate authority that the need is bonafide.

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However, we notice another aspect of the matter. The petition schedule building is situated in a very important commercial area of the Thalassery town. The building certainly is not a very big one. Still, according to us, the monthly rent of Rs.500/- which is being paid by the revision petitioner is far below the rent the building will fetch, if it is let out today. We are therefore, inclined to re-fix the rent payable by the revision petitioner prospectively.

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The result of the above discussion is as follows:

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a) The order of the rent control court and the judgment of the appellate authority are set aside. The

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RCP is remanded to the rent control court for taking a fresh decision on the question of bonafides of the need and also on the question of tenant's eligibility for protection of the second proviso to Sub Section 3 of Section 11. If the landlady wants to amend the rent control petition, she should be permitted to do so. If the RCP is amended, the tenant also should be permitted to raise counter pleadings. It is open to the landlady to get herself examined as a witness in the RCP. If the tenant is desirous of adducing further evidence by way of rebutting the evidence of the landlady, tenant should be permitted to do so.

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b) The rent payable by the revision petitioner for the building in question is re-fixed with effect from 1.12.2010 at Rs.1,000/- per mensum. We make it clear that this re-fixation is tentative and it is open to either sides to apply for fixation of the fair rent under Section5, if aggrieved. Parties will enter appearance before the rent control court on 15.12.2010.

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c) The learned rent control court is directed to expedite matters and ensure that orders are passed in

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the RCP earlier and at any rate within a period of three months of parties entering appearance before court or atleast in the first week after the court re-opens after mid-summer recess. While taking a fresh decision, the rent control court will consider the applicability of the first and second provisos also to Sub Section 3 of Section 11.

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PIUS C.KURIAKOSE JUDGE

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K.SURENDRA MOHAN

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JUDGE

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Theekkookkal Abdul Gafoor v. C.O.K.Rasiya

Case brief

What is this about?

What did the court decide?

Theekkookkal Abdul Gafoor v. C.O.K.Rasiya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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