Partly allowed

C.Moosakunhi v. K.H.Mohammed

Kerala HC21 Nov 2013RCRev./287/2013

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition challenging the Rent Control Appellate Authority's finding that the premises were forcibly vacant. The Court rejected the tenant's claim, upheld the eviction order, but granted six months to vacate on strict conditions regarding arrears and undertaking.

What did the court decide?

Revision petition dismissed. Tenant granted time to vacate up to 31.05.2014 upon paying arrears and filing an undertaking. Pending execution proceedings kept in abeyance.

C.Moosakunhi Vs K.H.Mohammed — 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 &

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935

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RCRev..No. 287 of 2013 ()

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AGAINST THE JUDGMENT IN RCA 28/2012 of RENT CONTROL APPELLATE AUTHORITY, KASARAGOD DATED 01-07-2013

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AGAINST THE ORDER IN RCP 16/2009 of RENT CONTROL COURT, KASARAGOD DATED 29-03-2012

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REVISION PETITIONER)/RESPONDENT/TENANT:

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C.MOOSAKUNHI AGED 62 YEARS RETIRED SUB REGISTRAR, MUSLIM, S/O. ABBAS R/AT D/NO, KMC. XXIV-23 OF KASARAGOD MUNICIPALITY PALLAM ROAD, KASARAGOD KASBA VILLAGE, KASARAGOD.P.O. KASARAGOD DISTRICT.

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BY ADV. SRI.KODOTH SREEDHARAN

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RESPONDENTS/APPELLANT/LANDLORD:

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K.H.MOHAMMED, AGED 56 YEARS S/O. KHADER HASSAN, MUSLIM, ARTIST R/AT K.H. HOUSE, NAIMAMOOLA, CHENGALA VILLAGE P.O. CHEROOR, KASARAGOD DISTRICT.

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RAJENDRAN.K.V., AGED 42 YEARS S/O. DAMODARAN, HINDU, BUSINESS R/AT USHA NIVAS, NEAR RAILWAY STATION, THATTACHERY NILESHWAR.P.O., NILESHWAR VILLAGE, KASARAGOD DISTRICT.

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BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) BY ADV. SRI.P.B.KRISHNAN BY ADV. SMT.GEETHA P.MENON BY ADV. SRI.N.AJITH BY ADV. SRI.P.M.NEELAKANDAN BY ADV. SRI.P.B.SUBRAMANYAN

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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T.R.RAMACHANDRAN NAIR

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B.KEMAL PASHA, JJ.

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R.C.R. No.287 of 2013 A

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Dated this the 21^st day of November, 2013

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O R D E R

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~ ~ ~ ~ ~ ~

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Kemal Pasha, J.

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Even though the R.C.P. was filed in the year

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2009, it has got a checkered career. Presently, the tenant

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has come up in revision challenging the findings entered by the learned Appellate Authority in R.C.A. No.28/2012 on the applicability and admissibility of the evidence relating to the first proviso to Section 11(3) of the Kerala Buildings (Lease

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and Rent Control) Act, 1965 (for short, 'the Act').

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We heard the learned counsel for the petitioner

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Sri.Kodoth Sreedharan and the learned Senior Counsel

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appearing for the respondent Sri.S.V.Balakrishna Iyer.

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According to the learned counsel for the petitioner, there is no sufficient evidence in the matter to disprove the case of the petitioner that the claim of the landlord under Section 11(3) of the Act is hit by the first proviso to Section 11(3) of the Act. The main argument of the petitioner is based on the contents of Exts.B1 and B3. According to the tenant, there is another vacant shop room available in the building so as to enable the landlord, to accommodate PW2 for whom the petition schedule building has been sought for. Ext.B1 is the extract from the Property Register of the Kasaragod Municipality. The argument is that building No.XXIV/25 is shown as vacant in Ext.B1. It is also the case of the petitioner that, in Ext.B3, it has been stated that for the period from 2004-2005 to 2008-2009, no D & O licence or PFA licence were issued in respect of any business in K.M.C.XXIV/25. It is mainly based on Exts.B1 and B3, it has been contended that the case of the landlord that the said room is occupied by one Shamsudheen is

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false.

The learned Senior Counsel appearing for the

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respondent/landlord has pointed out that prior to the remand of the matter, at the first instance, Ext.A9 counter foil book in respect of the rent receipts issued to the said Shamsudheen was produced and proved by the landlord. Then, the landlord was found fault with in not causing the production of the rent receipts. After remand, the said tenant Shamsudheen was called upon by the landlord and summoned him to produce the rent receipts and consequently, Exts.X3 to X3(x) were caused to be produced. The said rent receipts coincide with the counter foils contained in Ext.A9. Further, after the remand, the landlord has produced Ext.A16 extract of the D & O Register for the year 2009-2010 from the Kasaragod Municipality, which clearly shows that room No.XXIV/25 is occupied by one Shamsudheen K.A. and he is conducting jewellery works in the said building. Further, column No.8 of Ext.A16 shows

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that D & O licence No.507135 was issued to the said occupant on 22.05.2009 with effect from 25.06.2009. Ext.A17 extract of the D & O Register for the year 2010-2011 shows that the said D & O licence has been renewed. The R.C.P. was filed on 15.12.2009. Therefore, the contents of Ext.A16 clearly shows that room No.XXIV/25 was occupied by the said Shamsudheen at least from 22.05.2009 onwards and he had D & O licence for the same.

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The learned Senior Counsel has invited our attention to Ext.A14 certificate of registration, which was issued by the Commercial Tax Officer on 06.06.2007, which shows that Sri.K.A.Shamsudheen, whose photograph is affixed on it, has been conducting a jewelery in door No.KMC.XXIV/25 of the Kasaragod Municipality for which the said certificate of registration was issued with effect from 12.05.2005 onwards. Further, Ext.A18 certificate issued by the Commercial Tax Officer-II, Commercial Taxes

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Department, Kasaragod shows that the said Shamsudheen, who is the Proprietor of the said jewelery housed in KMC.XXIV/25 of the Kasaragod Municipality, has been paying tax regularly since 21.04.2006 onwards.

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The main argument forwarded by the learned counsel for the petitioner is that even though the aforesaid documents were caused to be produced, those documents were not properly proved as the said Shamsudheen, who is the alleged occupant of room No.XXIV/25, was not examined by the landlord before the Rent Control Court and, therefore, adverse inference has to be drawn. We do not find any merit in the said argument because of the fact that Ext.A18 has been clearly proved by PW3, who had issued the said document. Similar is the case with Exts.A17 and A18 obtained from the Municipality. It is the admitted case of the petitioner that Ext.B3 produced by the tenant, which is the extract of the Municipal Register, is admissible in evidence even without a formal proof. On that simple score

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itself, Exts.A16 and A17 are also admissible in evidence regarding the occupation of the said room, without any formal proof of those documents. More over, we find that there is no inconsistency with regard to the contents of Exts.A16 and A17 with the contents of Ext.B3, as Ext.B3 relates only to the period up to 2008-'09. Ext.A16 proves that the said Shamsudheen has been holding D & O licence with effect from 25.06.2009 onwards. Had a similar document as that of Ext.B3 been obtained in respect of the period of 2009-'10 onwards, definitely, the name of the said Shamsudheen as the occupant should have found a place in such a document.

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Apart from all the above, Ext.C1 Commissioner's report also clearly shows that even during the pendency of the proceedings, the said Shamsudheen has been occupying the said room and he is conducting jewellery business in the said room. It is hard to believe that in order to make it appear that the room is occupied by a tenant, the

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landlord has created a jewellery in the said room.

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The learned counsel for the petitioner has relied on the decisions in Vidhyadhar Vs. Manikrao and another [1999 (3) SCC 573] and CIT Vs. Koonans Jewellery [1997 KHC 125]. We have adverted our attention to those decisions; but we are of the view that, in the facts and circumstances in hand, the said decisions have no application at all.

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The remand was only for the limited purpose of considering the question regarding the application of the first proviso to Section 11(3) of the Act. We find that the findings entered by the learned Appellate Authority on that aspect do not suffer from any illegality, irregularity, impropriety, or perversity. Therefore, the impugned judgment does not call for any interference at all.

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Lastly, the learned counsel for the petitioner has sought for six months' time for the tenant to vacate the premises. We are of the view that such a period can be

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granted on conditions.

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In the result,

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(a) This revision petition is dismissed.

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(b) The tenant is granted time up to 31.05.2014, to

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vacate the premises and deliver possession to the landlord on the following conditions:-

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(i) He remits the entire arrears as on

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today before the executing court within one month from today and files an affidavit before the executing court within one month from today, unconditionally undertaking to surrender vacant possession of the premises to the landlord on or before 31.05.2014.

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(ii) He pays charges towards use and occupation of the building at the current rent rate from today till he gives vacant possession of the premises to the landlord.

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the executing court shall be kept in abeyance up to

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31.05.2014, if the aforesaid conditions are satisfied.

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(d) If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to the tenant as per this order will stand recalled automatically and the executing court shall effect delivery forthwith.

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(e) No costs.

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Sd/- (T.R.RAMACHANDRAN NAIR, JUDGE)

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/21/11

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// True Copy //

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PA to Judge

C.Moosakunhi v. K.H.Mohammed

Case brief

What is this about?

What did the court decide?

C.Moosakunhi v. K.H.Mohammed

Case brief

What is this about?

What did the court decide?

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