Dismissed

Kandiyil Rajan v. Moidu Haji

Kerala HC4 Oct 2013RCRev./260/2013

Case brief

AI extract

What is this about?

This revision petition challenged an eviction order granting relief to a landlord for arrears of rent and bonafide need in leasing premises in Kerala. The High Court dismissed the petition, affirming the lower courts’ findings on the proviso regarding vacant possession and the bona fide necessity of the landlord’s son.

What did the court decide?

Eviction order dismissed with a ten-month timeline to vacate, contingent upon deposit of arrears and undertaking to pay rent until delivery.

Kandiyil Rajan Vs Moidu Haji — Labour and Industrial Disputes | 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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FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935 RCRev..No. 260 of 2013 () --------------------------

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AGAINST THE ORDER/JUDGMENT IN RCA 21/2012 of RENT CONTROL APPELLATE AUTHORITY/DISTRICT COURT, KOZHIKODE DATED 06-04-2013

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AGAINST THE ORDER/JUDGMENT IN RCP 54/2011 of RENT CONTROL COURT/PRL.M.C.KOZHIKODE-I DATED 21-12-2011 REVISION PETITIONER(S)/APPELLANT IN RCA/RESPONDENT (TENANT) IN RCP:

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KANDIYIL RAJAN AGED 72 YEARS S/O. CHATHUKUTTY, 13/614Z(604), MANIYOTH BUILDING KALLAI ROAD, NAGARAM AMSOM, DESOM KOZHIKODE TALUK, KOZHIKODE-673002. BY ADVS.SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON

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RESPONDENT(S)/RESPONDENT IN RCA/PETITIONER (LANDLORD) IN RCP: -------------------------------------------------------------------------------------------------------------------------

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MOIDU HAJI, AGED 68 YEARS S/O. IBRAHIM, MANIYOTH HOUSE, P.O.PONMERI PARAMBIL VILLYAPPALLI VIA, PONMERI AMSOM, PARAMBIL DESOM VADAKARA TALUK, KOZHIKODE.

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R1 BY ADV. SRI.E.NARAYANAN

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-10-2013, 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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R.C.R. No. 260 of 2013

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DATED THIS THE 4TH 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 defeated tenant in a petition for eviction under the Kerala Buildings (Lease & Rent Control) Act, is the petitioner herein. The parties are referred to as arrayed in the revision petition. The sole respondent is the landlord.

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The shop room in question was taken by the petitioner on lease from the predecessor-in-interest of the landlord by agreement dated 28.3.1975. The landlord purchased the same in 1976 and the tenant has attorned to the same to the landlord. The monthly rent being paid is Rs.130/-.

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Eviction was sought under Section 11(2)(b) (arrears of rent) from

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April 2004 and under Section 11(3), for bonafide need for starting a business in fruits and juice, for the son of the landlord, Shri Ansar who is depending on him.

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The tenant contended that the landlord is having another building

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RCR No.260/2013

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having 16 rooms, in his possession in Oasis compound and also is having several other shop rooms situated near Alukkas Jewellery in Kozhikode. It was also contended that the purpose shown is not genuine.

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P.Ws.1 and 2 have been examined and they are respectively the

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landlord and his son Shri Ansar. The tenant was examined as R.W.1 and C.W.1 is the Commissioner who was appointed by the court.

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The Rent Control Court allowed the prayer for eviction under both grounds. The Appellate Authority, in the appeal filed by the petitioner herein, concurred with the same. Before us, learned counsel for the petitioner Shri Jayesh Mohankumar submitted that actually it is a case where the landlord is having a vacant room which was originally occupied by Santhosh Pharmacy and no special reasons have been offered for not occupying the same. It is submitted that these aspects have not been considered by the Appellate Authority also.

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Learned counsel for the respondent, Shri E. Narayanan submitted

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that the tenant could not prove that the landlord is in vacant possession of any room. It is submitted that even though the tenant of another room has

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stopped the business, since the said room has not been surrendered to the landlord, it cannot be said to be in the possession of the landlord as on the date of filing of the eviction petition. Therefore, it is submitted that the first proviso to Section 11(3) is not attracted to the facts of this case.

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We have perused the orders. Regarding the bonafide need, it is in evidence that the son of the landlord, Shri Ansar has no job or avocation. He has no higher educational qualification to get a job and is aged 23. He is depending on the landlord for the need shown, viz. to start a fruits and juice shop. P.W.2, the son of the landlord disclosed before the court that he is unmarried and is depending upon his father. According to him, he had worked with one Mr. Nizar in his juice shop for more than two years and has earned experience also. No vitiating circumstances could be proved by the tenant to discredit the version of P.Ws.1 and 2. One of the objections raised by the tenant is that there are several other similar shops in the locality. The evidence shows that the petition schedule building is situated near the Palayam bus stand, railway station and Apsara theatre. Therefore, the court did not accept the plea of the tenant that in view of the fact that

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there are other similar shops, there is no scope for the proposed business, rightly according to us.

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The suggestion put to P.W.1 that he is having vacant possession of other rooms, has been denied. He also admitted that the shop, viz. Santhosh Pharmacy is not functioning. The Rent Control Court was of the view that merely because the same is not functioning, it cannot be said that the room is readily available and is possessed by the landlord. It was found that the tenant could not succeed in proving that vacant rooms are available with the landlord.

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These aspects have been considered by the Appellate Authority in detail. Even though it was argued before the Appellate Authority also that the landlord is having vacant possession of another room, in the light of the factual setting already discussed above, the Appellate Authority also did not accept the said plea. With regard to the bonafide need pleaded, it was held that the intention of the father to start a fruits and juice shop to eke out a livelihood for P.W.2, is a genuine need. It was found that there is no case for the tenant that P.W.2 is employed elsewhere and he is not having

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experience in selling fruits and juice. It was also held that he being a young man, the intention to start a business is a real and natural one, especially since he is not having higher educational qualification also.

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Even though it was vehemently contended by the learned counsel for the petitioner that the reasoning made by the authorities below is perverse, we cannot agree. All the items of evidence have been properly discussed. The tenant having failed to adduce any cogent evidence to show that the landlord is in possession of any vacant room, the view taken cannot be faulted.

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With regard to the two limbs of the second proviso to Section 11 (3) of the Act, the finding is against the tenant. It was contended by the landlord that the tenant is not doing any business in the petition schedule rom. Even though R.W.1 deposed before the court that he is doing a retail business in soaps and other items purchased from other shops, in the light of the non production of cogent materials, the finding went against the tenant and it was concluded by the Appellate Authority that there is nothing to show that the tenant is mainly depending upon the income from the business

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being conducted in the petition schedule building, for his livelihood.

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With regard to the availability of other rooms, R.W.1 has

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admitted that there is a new shopping complex near to the petition schedule building and several rooms in the said building are lying vacant. The report of the Commissioner showed that several rooms are available in 'Yemuna Building' situated near the petition schedule building and the Commissioner also deposed that he could see the board 'to let' in the said building. These items of evidence have been accepted by the Rent Control Court and by the Appellate Authority. We find no reason to interfere with the same and the revision petition is dismissed.

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We grant ten months' time from today to the petitioner to vacate the petition schedule room on the following conditions:

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i) The entire arrears of rent as on today will be paid/deposited within one month. If such deposit is made, the same will be disbursed to the respondent;

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ii) An affidavit will be filed by the petitioner before the Rent Control Court within one month from today, undertaking to vacate the premises

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within the time stipulated by this Court.

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iii) The petitioner will continue to pay at the same monthly rate for

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the use and occupation of the building till vacant peaceful possession is handed over to the respondent;

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iv) If the above conditions are not satisfied, the petitioner will not get

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the benefit of this order.

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No costs.

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(T.R.RAMACHANDRAN NAIR, JUDGE)

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(B. KEMAL PASHA, JUDGE)

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kav/

Kandiyil Rajan v. Moidu Haji

Case brief

What is this about?

What did the court decide?

Kandiyil Rajan v. Moidu Haji

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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Case details

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