Dismissed

P.Mariyumma v. Archam Veettil Hajarabi

Kerala HC19 Nov 2013RCRev./314/2013

Case brief

AI extract

What is this about?

The High Court dismissed the revision petition against eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act as the landlady proved bona fide need. However, the ground under Section 11(4)(iii) was vacated as the tenant proved a suitable family residence. The tenant was granted conditional time to vacate by May 31, 2014.

What did the court decide?

Tenant granted time up to 31.05.2014 to vacate with conditions of filing an affidavit and paying municipal taxes; execution proceedings stayed until then.

P.Mariyumma Vs Archam Veettil Hajarabi — 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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TUESDAY, THE 19TH DAY OF NOVEMBER 2013/28TH KARTHIKA, 1935

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RCRev..No. 314 of 2013 ()

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AGAINST THE JUDGMENT IN RCA 57/2007 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 29-06-2013

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AGAINST THE ORDER IN RCP 98/2005 of RENT CONTROL COURT, THALASSERY DATED 23-01-2007

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REVISION PETITIONER/RESPONDENT/RESPONDENT NO.1:

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P.MARIYUMMA W/O LATE MAYANALI, HOUSE WIFE RESIDING AT HAJI'S BUNGLOW, THARAKKADAVATH PARAMBA HOUSE NO.48/190, CHETTANMOON ROAD THALASSERY P.O.-670 101, THALASSERY AMSOM VADIKKAKAM DESOM, THALASSERY TALUK.

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BY ADVS.SRI.C.K.SREEJITH SRI.T.REMESH BABU SMT.C.M.NIRMALA DEVI

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RESPONDENTS/APPELLANTS/PETITIONER & RESPONDENTS 2 TO 7:

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ARCHAM VEETTIL HAJARABI, AGED 58 YEARS W/O LATE P.K.ABDULLA, HOUSE WIFE RESIDING AT RAJAH MANZIL, P.B.NO.2, CHAVAKKAD P.O. GURUVAYOOR, TRICHUR.

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P.K.SAJIDHA, AGED 40 YEARS D/O LATE P.K.ABDULLA, RESIDING AT RAJAH MANZIL P.B.NO.2, CHAVAKKAD P.O., GURUVAYOOR TRICHUR.

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SISTER P.K.BABIDHA, AGED 38 YEARS HOUSE WIFE, RESIDING AT RAJAH MANZIL, P.B.NO.2 CHAVAKKAD P.O., GURUVAYOOR, TRICHUR.

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SISTER P.K.SHERMIN, AGED 36 YEARS HOUSE WIFE, RESIDING AT RAJAH MANZIL, P.B.NO.2 CHAVAKKAD P.O., GURUVAYOOR, TRICHUR.

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SEENATH AFROX RAHIM D/O LATE NAFEESSA ABDULLA, AGED 52 YEARS, HOUSE WIFE

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' THE VILLA' MILL ROAD, KANNUR-12

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RCRev..No. 314 of 2013

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THROUGH P.A.HOLDER P.K.SHAMEEM, AGED 49 YEAR, BUSINESS RSIDING AT THE VILLA H.NO.KR/33A-OPP. DSC PAY ACCOUNTS OFFICE, MILL ROAD CANNANORE DISTRICT.

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BROTHER P.K. MOHMMED ABDULLA, AGED 48 YEARS MON ROOPSE, THANA, KANNUR-12.

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BROTHER P.K.NASSAR ABDULLA,, AGED 44 YEARS ADVOCATE, MECCA NO.368 LLOYDS ROAD, CHENNAI-86 TAMILNADU.

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R1 BY ADV. SRI.K.V.PAVITHRAN(CAVEATOR) R1 BY ADV. SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19-11-2013, 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.314 of 2013 E

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Dated this the 19^th day of November, 2013

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O R D E R

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~ ~ ~ ~ ~ ~

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Ramachandran Nair, J.

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The respondent in R.C.P. No.98/2005 of the Rent

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Control Court, Thalassery is the petitioner herein. The challenge is against the order passed by the Rent Control Appellate Authority, Thalassery, which reversed the order of

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the Rent Control Court and allowed eviction under Sections 11(3) and 11(4)(iii) of the Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act').

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Learned counsel for the petitioner submitted that

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initially the entrustment was in the year 1970 to the Muslim Mahila Samajam, which is having charitable activities for

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RCR.314/2013

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poor girls in the building. It is submitted that apart from the landlady, so many other sharers are there having ownership and none of them have been made parties in the Rent Control Petition. The learned counsel for the petitioner submitted that the finding under Section 11(3) of the Act is not correct as the landlady has not proved her bona fide need. It is also the submission of the learned counsel for the petitioner that the landlady was residing in Bangalore for sometime along with her husband and even though it is stated in the R.C.P. that she is residing in Thrissur along with her relatives, no positive evidence has been let in to substantiate this contention. The learned counsel for the petitioner emphasises the fact that the social work, which is being done in the petition schedule building by the tenant, is well appreciated by the people in the locality and the building is at an important location within the Thalassery Municipal Town and the eviction sought is only a ruse to get back the building and not to occupy it, but to sell it.

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RCR.314/2013

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With regard to the finding under Section 11(4)(iii)

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of the Act, learned counsel for the petitioner explained that merely because the petitioner is having a ' tharavadu' house, it is not a sufficient ground to attract Section 11(4)(iii) of the Act. The learned counsel for the petitioner submitted that the landlady can actually reside with her son, who is having a building in Thalassery.

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It is submitted by the learned counsel for the respondent that the son of the landlady is not in station and she cannot depend upon her relatives for residential accommodation for long. Therefore, the need projected is a genuine one. It is submitted that the petitioner cannot advance the charitable nature of the activity to resist eviction. In Ext.A9 reply notice issued by the tenant, only one year's time was sought in the year 1977 by the petitioner to vacate the building. It is, therefore, submitted that genuine bona fide has been found by the Appellate Authority. Learned counsel for the respondent also supports

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the finding of the Appellate Authority under Section 11(4)(iii) of the Act by pointing out that the tenant admits that she is having a ' tharavadu' house.

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A reading of the order passed by the Rent Control Court shows that the court was of the view that social work and charitable activities are being undertaken in the building. The tenant is residing in the building and she is a known social worker, and if she is evicted, it will affect the society. This was reversed by the Appellate Authority. As far as a plea under Section 11(3) of the Act is concerned, we are of the view that the landlady has established by clear evidence that she requires the building for residential accommodation. There is no evidence to show that she is having any other building in Thalassery or elsewhere. She is now residing in Thrissur and is depending upon other relatives. Her husband is no more. There are various relatives in Thalassery also so that she can settle there. By any stretch of imagination, it cannot be said that the need of

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the landlady is not a genuine one and it is a mere desire to evict the tenant from the building. The landlady has given evidence as PW1 and we also have gone through the deposition of PW1. She has clearly deposed that she is a co-owner and is entrusted with the management of the building for others. The vehement argument raised herein is that she has not adduced any sufficient evidence to prove that she is residing with her relatives in Thrissur. But, the tenant has no case that she has own building elsewhere to stay on. Therefore, we find that the landlady has succeeded in proving her bona fide need and the finding of the Appellate Authority is not a perverse one.

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As far as the plea under Section 11(4)(iii) of the Act is concerned, the only discussion in the Appellate Authority's judgment is in paragraph 20. Reference is made to the admission by RW1 that she is having possession of large ' tharavadu' house and by relying upon Kanhangad Co-operative M.S.Society Ltd. Vs. Ganapathy Kamath

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[1995 (1) KLT 681], wherein it was held that the tenant has not discharged burden of proof to show that the building in possession is suitable for the tenant's requirements, the Appellate Authority found that eviction under Section 11(4) (iii) is warranted. We have considered the submissions made by the respective counsel. The only finding is that she is having a ' tharavadu' house for residential purpose of the family and it cannot be said that that can be a ground for eviction under Section 11(4)(iii) of the Act. Even though the learned counsel for the landlady submitted that it is enough to attract the ground pleaded under Section 11(4)(iii) of the Act, we are of the view that on the facts of this case, it cannot be said that there is sufficient evidence to attract the ground under Section 11(4)(iii) of the Act. The said finding is, therefore, vacated but, we confirm the finding under Section 11(3).

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At this stage, learned counsel for the petitioner

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prays for one year's time to vacate the building. It is

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opposed by the learned counsel for the respondent.

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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 landlady on the following conditions:-

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(i) She files an affidavit before the

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executing court within one month from today,

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unconditionally undertaking to surrender vacant possession of the premises to the landlady on or before 31.05.2014.

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(ii) She pays the Municipal taxes as and

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when due till she gives vacant possession of the

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building to the landlady.

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the executing court shall be kept in abeyance up to 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

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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/20/11

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// True Copy //

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PA to Judge

P.Mariyumma v. Archam Veettil Hajarabi

Case brief

What is this about?

What did the court decide?

P.Mariyumma v. Archam Veettil Hajarabi

Case brief

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What did the court decide?

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