Dismissed

Balakrishnan v. C.Muhammedali

Kerala HC7 Oct 2013RCRev./198/2009

Case brief

AI extract

What is this about?

Rent Control Court revised eviction order granted to landlord seeking reconstruction and business under Section 11(3). Landlord proved bona fide need as family sharers released rights. Tenants found not entitled to proviso benefits. Nine months vacate time granted with conditions.

What did the court decide?

Nine months time to vacate premises granted subject to remitting arrears, filing affidavit, and paying rent until vacancy.

Balakrishnan Vs C.Muhammedali — Landlord and Tenant | Kerala HC (2013)

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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 T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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MONDAY, THE 7TH DAY OF OCTOBER 2013/15TH ASWINA, 1935 RCRev..No. 198 of 2009 ( )

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AGAINST THE JUDGMENT IN RCA 38/2007 of RENT CONTROL APPELLATE AUTHORITY,PALAKKAD DATED 08-04-2009

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AGAINST THE ORDER IN RCP 34/2005 of RENT CONTROL COURT, PALAKKAD DATED 26-07-2007

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REVISION PETITIONER(S)/REVISION PETITIONERS/APPELLANTS/RESPONDENTS: -------------------------------------------------------------------

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BALAKRISHNAN, S/O.LATE CHAMAYI

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RAVINDRAN, S/O.LATE CHAMAYI,

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NANDHANAN, S/O.LATE CHAMAYI,

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ALL ARE RESIDING AT MANIYANKADU HOUSE, KOPPAM AMSOM PALAKKAD TALUK.

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BY ADVS. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP

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RESPONDENT(S)/PETITIONER:

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C.MUHAMMEDALI S/O.LATE CHELLAPPA ROWTHER RESIDING AT HEDGERO HOUSE, KOPPAM AMSOM PALAKKAD TALUK.

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DASAN, S/O.LATE CHAMAYI, RESIDING AT MANIYANKADU HOUSE, KOPPAM AMSOM PALAKKAD TALUK. R,R1 BY ADV. SRI.D.KRISHNA PRASAD R,R1 BY ADV. SMT.O.K.SANTHA R,R1 BY ADV. SMT.P.L.MARY TREASA

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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T.R. RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ.

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~~~~~~~~~~~~~~~~~~~~~~~~~~~

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R.C.R.No.198/2009

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~~~~~~~~~~~~~~~~~~~~~~~~~~~

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Dated this the 7^th day of October, 2013

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O R D E R

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Ramachandran Nair, J.

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The tenants of a building, belonging to the respondents, aggrieved

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by the concurrent orders passed by the authorities below directing eviction,

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are the petitioners herein.

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The landlord sought eviction for doing his own business after

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reconstruction of the building. The plea is one under Section 11(3) of the

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Kerala Buildings (Lease and Rent Control) Act (for short, the 'Act'). Before

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us, the learned counsel for the petitioners submitted that the finding on the

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bona fide need is not justified as it is a case where the landlord is only a

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co-owner and all the other co-owners have not been impleaded in the

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proceedings and even his contentions will show that he has set up his case

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in derogation of the rights of other co-owners.

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R.C.R.No.198/2009

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-:2:-

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3. The learned counsel for the respondent explained that the

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landlord obtained the property in a family partition and other sharers have

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released their rights.

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The learned Rent Control Court on an assessment of the

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evidence found that the landlord is not having any avocation in life and,

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therefore, the plea sought for eviction under the ground of Section 11(3) of

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the Act is justified. Of course, during the pendency of the Rent Control

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Petition, it appears that he obtained a job in Kuwait but, it was found that

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the said aspect cannot go against the plea to get eviction for doing his own

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business. The bona fide need pleaded is to put up a two storied building

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after demolishing the present building which is old and to start a business

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in the ground floor and to use the first floor for residence.

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The above finding was confirmed by the Appellate Authority,

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according to us rightly, on a proper assessment of the facts and evidence.

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The landlord had pleaded and established in evidence that the building

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R.C.R.No.198/2009

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-:3:-

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was obtained by him in a family partition and other sharers have released

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their rights as per Ext.A1 and he is not having a permanent job or

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avocation in life. He had obtained a job in Kuwait but later returned back.

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It was held by the Appellate Authority that merely because he obtained a

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job during the pendency of the eviction petition, that will not affect the bona

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fide need pleaded by him. Accordingly, the Appellate Authority rejected the same.

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One another aspect pointed out by the learned counsel for the

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petitioners is that in the eviction petition the landlord has pleaded that he

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has applied for a plan and a permit and, if ultimately this Court is not

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inclined to allow the revision petition, the eviction order should be allowed

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to be executed only on production of the approved plan and permit by the respondent-landlord before the execution court. On the last occasion, we

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had directed the learned counsel for the landlord to obtain instructions on

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that aspect and today it is submitted that the landlord has already obtained

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R.C.R.No.198/2009

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-:4:-

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the building permit and copies of the same have been produced before us

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for perusal. Therefore, on that score also the petitioners' contention that

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the matter should be left to the Execution Court for taking a decision do not

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deserve any consideration.

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With regard to two limbs of the second proviso to Section 11(3)

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of the Act, namely, (i) that tenants are depending for their livelihood mainly

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on the income derived from any trade or business carried on in such

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building and (ii) that there is no other suitable building available in the

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locality for the tenants to carry on such trade or business, both the authorities have rendered clear findings. The finding on the first limb is in favour of the tenants. But on the second limb, it has been found that going by the evidence of RW1, there are several shopping complexes near the

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petition schedule shop room. He has not given the details of the enquiry made by him as to the availability of suitable building in the locality. In the

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light of the above evidence, the finding is again against the tenants.

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R.C.R.No.198/2009

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-:5:-

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Accordingly, the Rent Control Court and the Appellate Authority found that

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the tenants are not entitled for the benefit of the second proviso. We find

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no reason to interfere with the same. We therefore dismiss the revision

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petition.

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At this stage, the learned counsel for the petitioners sought for

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one years time to vacate the premises. It is submitted that they are doing stationery business. We grant nine months time from today to the

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petitioners to vacate the premises and deliver possession to the landlord

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on the following conditions:

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(i) The tenants remit the entire arrears as on today

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before the execution court within one month from today and

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file an affidavit before the execution court within one month

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from today, unconditionally undertaking to surrender vacant

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possession of the premises to the landlord within nine months

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from today.

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R.C.R.No.198/2009

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-:6:-

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(ii) The tenants pay charges towards use and

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occupation of the building at the current rent rate from today till

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they give vacant possession of the premises to the landlord.

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(iii) Execution proceedings, if any, pending before the

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execution court shall be kept in abeyance for a period of nine

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months if the aforesaid conditions are satisfied.

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(iv) If there is default in performing any of the

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conditions imposed in clause (ii) above, the benefit given to

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the tenants as per this Order will stand recalled automatically

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and the execution court shall effect delivery forthwith.

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Sd/-

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(T.R. Ramachandran Nair, Judge)

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Sd/-

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(B.Kemal Pasha, Judge)

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Balakrishnan v. C.Muhammedali

Case brief

What is this about?

What did the court decide?

Balakrishnan v. C.Muhammedali

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

Coram

Case details

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