Dismissed

Payyanat Devaki v. Ovintakath Kurukkandiyil Fousiya

Kerala HC19 Nov 2010RCRev./291/2005

Case brief

AI extract

What is this about?

The High Court dismissed a revision under Section 20 of the Kerala Regulation of Rented Premises, 1965, confirming a conviction of a tenant. The court directed the execution court to delay actual delivery of possession until the tenant's dependent son affirms he will commence business within a month.

What did the court decide?

Revision dismissed; execution of eviction order deferred until tenant's son affirms commencement of business within one month.

Payyanat Devaki Vs Ovintakath Kurukkandiyil Fousiya — Landlord and Tenant | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 RCRev..No. 291 of 2005() ----------------------------------RCA.155/1998 of ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.248/1997 of ADDL.MUNSIFF COURT, KANNUR .................... REVISION PETITONERS/ APPELLANTS/ RESPONDENTS:

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

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1. PAYYANAT DEVAKI, W/O.KUNHIRAMAN, PAYYANAT HOUSE, KACHERITHARA, P.O.IRINAVU, TALIPARAMBA TALUK, KANNUR DISTRICT.

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2. ANITHA, D/O.KUNHIRAMAN, PAYYANAT HOUSE, KACHERITHARA, P.O.IRINAVU, TALIPARAMBA TALUK, KANNUR DISTRICT.

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3. RANJITH, S/O.KUNHIRAMAN, PAYYANAT HOUSE, KACHERITHARA, P.O.IRINAVU, TALIPARAMBA TALUK, KANNUR DISTRICT.

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BY ADVS. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA

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RESPONDENT(S):

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

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OVINTAKATH KURUKKANDIYIL FOUSIYA, D/O.MUHAMMED, R/AT KAVINMOOLA, ANCHARAKANDI AMSOM, MAMBA DESOM, KANNUR TALUK.

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R1 BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MOHAMMED SHEMEEM SRI.T.P.SAJID

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19/11/2010, 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.291 of 2005

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Dated this the 16^th 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 by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction which was passed against the revision petitioners/tenants by the Rent Control Court under Sub Section 3 of Section 11 of Act 2 of 1965. The case of the landlord was that the building is needed bonafide for the occupation of her dependent son O.K.Rayees, so that Rayees can conduct stationary business. It was averred that Rayees is a graduate, without any employment or avocation for life. It was also averred that the landlady has no other building to be provided to her son who is dependent on her. The bonafides of the need was disputed by the tenants who also claimed the protection of the second proviso to Sub Section 3 of Section 11. The Rent Control Court

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RCR No.291/2005 2

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re-appraised the entire evidence in the case which consisted of Exts.A1 and A2 and the oral evidence of Pws.1 to 3 and Rws.1 and 2. PW1 was the landlady herself and PW2 was the landlady's dependent son Rayees. The Rent Control Court on a re-appraisal of the entire evidence came to the conclusion that the landlady was successful in establishing that the need is bonafide. It was also concluded that the tenant was unsuccessful in showing that he is entitled to the protection of Sub Section 3 of Section 11. Accordingly, the order of eviction was passed under Sub Section 3 of Section 11. The tenant preferred an appeal to the Rent Control Appellate Authority. The Rent Control Appellate Authority made a re-appraisal of the evidence and concurred with all the conclusions entered by the Rent Control Court. Accordingly, the appeal was dismissed. In this revision under Section 20, various grounds have been raised assailing the judgment of the appellate authority. Along with the RCR, the tenants have preferred a petition under Order 11 Rule 14 CPC for compelling the landlady to cause the production of passport of the tenant's son Rayees. The averments in

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RCR No.291/2005 3

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the affidavit in support of his petition are to the effect that Sri.Rayees has left India and presently working in Shakkeel Studio, Abu Dhabi after the judgment was passed by the appellate authority in the RCA.

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We have heard the submissions of Sri.K.C.Santhosh Kumar, the learned counsel for the revision petitioner. We have gone through the order of the Rent Control Court and we have scanned the judgment of the appellate authority. The learned counsel for the revision petitioner would highlight before us that PW2, Rayees in whose need the building is ordered to be vacated, has already left India and is permanently employed in Abu Dhabi. The learned counsel assailed the findings entered by the statutory authorities in the context of the second proviso to sub section 3 of Section 11 also. We have anxiously considered the submissions of the learned counsel. We do not think that a case is made out for invocation of the jurisdiction under Section 20 in respect of the impugned judgment by the appellate authority. It is on the basis of inspiring evidence adduced by PW1 landlady and PW2 Rayees that the authorities

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RCR No.291/2005 4

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concluded that the need projected by the landlady is bonafide. The concurrent findings entered in the context of the second proviso to Section 11(3) is also founded on acceptable evidence available in the case. It is true that the need on the basis of which eviction order is passed under Section 11(3) should continue till actual eviction is made. The one circumstance which is highlighted is the subsequent event of PW2 taking up an employment in Abu Dhabi. RCP was instituted way back in 1997. If Rayees has gone over Abu Dhabi and taken up an employment there, it must be on account of his desperation in noticing the delay which is being occasioned in getting the actual eviction of the building where he wanted to conduct his own business. We have reason to think that once the landlady gets the actual possession of the building, he will come back and start the proposed business in the building. Apprehension voiced by the learned counsel for the revision petitioner can be taken care of by incorporating appropriate safeguards in this judgment. We confirm the judgment of the appellate authority as we do not find any illegality, irregularity and impropriety about the same. We

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RCR No.291/2005 5

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dismiss the RCR. However, we direct the Execution Court not to order and effect delivery, till such time as PW2 appears before the Execution court and swears to an affidavit stating that he will be commencing his proposed business in the petition schedule building within a period of one month of his getting his actual possession. We further clarify that Sub Section 12 of Section 11 will always come to the rescue of the petitioner, if it is noticed that the undertaking in the above affidavit is violated by PW2.

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PIUS C.KURIAKOSE

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K.SURENDRA MOHAN JUDGE

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Payyanat Devaki v. Ovintakath Kurukkandiyil Fousiya

Case brief

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Payyanat Devaki v. Ovintakath Kurukkandiyil Fousiya

Case brief

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What the court decided

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