Dismissed

M/S.Poyyeri Traders v. S.M.Hyrunneesa

Kerala HC17 Jan 2013RCRev./361/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a revision petition challenging an eviction order under the Kerala Rent Control Act. The court upheld the lower courts' findings regarding the landlord's bona fide need for business purposes, refusing to interfere with the eviction under Section 11(3). Consequently, the revision petition was dismissed.

What did the court decide?

The revision petition was dismissed and the eviction order was upheld, but temporary execution stay was granted until April 30, 2013.

M/S.Poyyeri Traders Vs S.M.Hyrunneesa — 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 THOTTATHIL B.RADHAKRISHNAN &

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THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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THURSDAY, THE 17TH DAY OF JANUARY 2013/27TH POUSHA 1934

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RCRev..No. 361 of 2012 ()

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R.C.A. NO.121/2009 & 123/2009 OF THE RENT CONTROL APPELLATE AUTHORITY. (III RD ADDL. DISTRICT COURT, KOZHIKODE). R.C.P. 61/2007 OF THE RENT CONTROL COURT (ADDL. MUNSIFF COURT-I), KOZHIKODE.

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REVISION PETITIONER(S)/APPELLANTS 2 TO 5 AND 2ND RESPONDENT IN R.C.A/2ND RESPONDENT IN R.C.P:

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1. M/S.POYYERI TRADERS

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REP. BY ITS MANAGING PARTNER,12.1029,VALIYANGADI KOZHIKODE TALUK.

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2. SHAJI KOLIYOTT, AGED 48 YEARS

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S/O KOLIYOTT ROHINI,B-501,BHAVANI TOWERS

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OPP. ILT POVAI,BOMBAY-2.

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3. SHAJAN KOLIYOTT, AGED 44 YEARS

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S/O KOLIYOTT ROHINI,JANAKI WEST HILL,CHUNGAM

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POOZHIYIL ROAD,KOZHIKODE.

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4. SHEEJA KRISHNA, AGED 46 YEARS

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D/O KOLIYOTT ROHINI,10.B.L.LOUVAINE ROAD

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S.W.11 24Q LONDON. U.K.

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5. SHEEBA JOY, AGED 42 YEARS

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D/O KOLIYOTT ROHINI,KAILAS,EAST HILL ROAD KOZHIKODE.(REVISION PETITIONER 2 TO 4 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER THE 5TH RESPONDENT).

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BY ADV. SRI.JOSE KURIAKOSE (VILANGATTIL)

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tss

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R.C.R. NO.361/2012

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RESPONDENT(S)/IST RESPONDENT IN R.C.A/PETITIONER IN R.C.P:

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S.M.HYRUNNEESA, AGED 58 YEARS D/O A.V.UTHANKOYA HAJI,19/1554 B, BAFANI HOUSE P.O.,CHALAPPURAM P.O.,673 002.

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BY ADV. SRI.A.A.ABUL HASSAN

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02-01-2013, THE COURT ON 17/01/2013 PASSED THE FOLLOWING:

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tss

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THOTTATHIL B.RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.

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----------------------------------------RCR No.361 of 2012

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Dated this the 17^th day of January, 2013

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ORDER

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Ramakrishna Pillai, J.

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The tenant, who faced orders of eviction in both the

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courts below under Section 11(3) of the Kerala (Buildings, Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Act' for short), is before us in revision.

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The respondent herein filed the Rent Control Petition alleging that the petition schedule building which was leased out to one Koliyott Rohini was sub let by her to the first revision petitioner for higher rent. Further, the son of the first respondent who is her dependent bona fide requires the petition schedule building for doing business in rice and grocery

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items.

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RCR No.361 of 2012 2

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The respondent claimed title to the tenanted premises

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as per a sale deed of 2006. It was further contended that the revision petitioners are the co-owners of the building and the need projected is only a ruse for eviction. The allegation regarding sub lease was also denied. They would further contend that the income set up by them in the tenanted premises is the sole source of their livelihood.

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The learned Rent Control Court on the basis of the

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evidence on record consisting of the oral testimonies of Pws.1, 2

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and RW1 as well as Exts.A1 to A6, B1 to B10, C1 and C2, ordered eviction under Section 11(3). However, the prayer for eviction under Section 11(4)(i) was negatived.

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The respondent as well as the first revision petitioner

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carried the matter before the Appellate Authority in two separate appeals which were heard jointly and disposed of by the impugned judgment confirming the orders of the Rent

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Control Court.

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RCR No.361 of 2012 3

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Arguments have been heard and the impugned order as

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well as the other records were perused.

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As there was a denial of title, the said question was

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considered by both the courts below as a primary issue. The contention raised is that the first respondent is not the owner of the property and the documents are sham documents. But on the basis of the evidence available on record, this contention was negatived by the Rent Control Court and this was upheld by the Appellate Authority also. The records would abundantly tend to indicate that the revision petitioners are occupying the property as tenants.

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The learned counsel for the respondent invited our

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attention to Ext.A3 which is a copy of the reply notice sent by the revision petitioner wherein it was admitted that the rent up

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to June 2006 has been paid. That itself would indicate that Koliyott Rohini who is the predecessor in interest of the revision petitioner was occupying the petition schedule building as a

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RCR No.361 of 2012 4

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tenant.

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Regarding the need, PW2, who is the son of the

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landlady, gave evidence that he requires the building for his business in rice and grocery. He has also stated that no rooms are available with him for starting the business. Though he has admitted during cross examination that he is a partner of a business run by his father and others, both the courts below have found that, that is not a genuine reason to hold that the need projected by him is not bona fide . We see no justifiable reason to interfere with the said finding.

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Both the courts below have found that though PW2

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has two other rooms in Kallai, there is nothing on record to show that he is having any room at Nagaram in Kozhikode Town where he actually wanted to start the proposed business. That is a genuine reason not to deny the claim under the first proviso to Section 11(3).

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Though the revision petitioners/tenants had claimed

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RCR No.361 of 2012 5

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protection under the second proviso to Section 11(3), they could

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not establish that they are entitled to protection under both the limbs. The revision petitioners are partners in the business which is being done in the schedule room. No evidence is forthcoming to show what exactly is the income derived from the business set up in the tenanted premises. RW1 has submitted that he has not made any enquiry about the availability of other building in the locality.

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The concurrent finding entered into by the courts below under Section 11(3) is supported by legal evidence and

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the same does not call for an interference under Section 20 of the Act as it does not suffer from any illegality, irregularity or impropriety.

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In the result, the revision fails and accordingly dismissed.

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Having made our decision known to the learned

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counsel for the revision petitioners, he requested six months'

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RCR No.361 of 2012 6

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time to surrender vacant possession of the petition schedule premises to the respondent. This was opposed tooth and nail by the learned counsel for the respondent/ landlord. After considering all the relevant circumstances of the case, we are of the view that the revision petitioners can be granted four months' time to vacate the premises. Hence, we direct the execution court to keep the delivery in abeyance till 30/4/2013 subject to the following conditions:

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(a) The entire arrears of rent shall be paid by the

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revision petitioners to the respondent/landlord within one month from today and the receipt thereof shall be produced

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before the Rent Control Court or the Execution court as the

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case may be, without fail;

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(b) The revision petitioners shall file an affidavit,

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within three weeks from today before the Execution Court or the Rent Control Court as the case may be, undertaking

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to surrender vacant possession of the petition schedule

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RCR No.361 of 2012 7

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building peacefully to the landlord on or before 30.04.2013

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and they will continue to pay occupational charges at the

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current rent rate till the date of actual surrender of the building to the landlord.

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We make it clear that the revision petitioners/tenants will

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get the benefit of time granted as above, only if they file the affidavit

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on time and honours the undertakings contained therein.

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sd/- THOTTATHIL B.RADHAKRISHNAN JUDGE

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sd/- A.V.RAMAKRISHNA PILLAI JUDGE

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css/ true copy

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P.S.TO JUDGE

M/S.Poyyeri Traders v. S.M.Hyrunneesa

Case brief

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M/S.Poyyeri Traders v. S.M.Hyrunneesa

Case brief

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