Allowed

N.K.Sundaram v. Edathikandy Nabeesu

Kerala HC12 Dec 2013RCRev./404/2013

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a revision petition against eviction orders under the Kerala Buildings (Lease and Rent Control) Act. It held that unauthorized sub-tenancy violated the kachit and confirmed the lower court's finding that the sub-tenant had exclusive possession, granting the tenant time to vacate upon clearing arrears.

What did the court decide?

Revision petition dismissed; tenant granted time to vacate premises and deliver possession by 31.03.2014 after remitting rent arrears and paying use and occupation charges.

N.K.Sundaram Vs Edathikandy Nabeesu — Pension and Retirement Benefits | 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 12TH DAY OF DECEMBER 2013/21ST AGRAHAYANA, 1935

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RCRev..No. 404 of 2013 ()

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AGAINST THE JUDGMENT IN RCA 49/2009 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY

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AGAINST THE ORDER IN RCP 167/2007 of RENT CONTROL COURT, THALASSERY

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REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT NO.1 IN RCP:

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NAMATH KADAVATH SUNDARAM, AGED 58 YEARS S/O.BALAKRISHNAN, RESIDING AT KUTTIVAYIL, MADAPPEDIKA THALASSERY, THALASSERY TALUK, KANNUR DISTRICT PIN - 670 103.

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BY ADV. SRI.R.SURENDRAN

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RESPONDENTS/RESPONDENTS IN RCA/PETITIONER & R2 IN RCP:

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EDATHIKANDY NABEESU, AGED 64 YEARS D/O.POKKER, RESIDING AT PANADAKKAL, MAHE PONDICHERRY STATE, PIN - 673 310.

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P.T.BABU

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S/O.BALAN, BUSINESS, P.T.STORES MADAPEEDIKA, P.O.TEMPLEGATE, THALASSERY - 670 103.

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12-12-2013, 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.404 of 2013

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Dated this the 12^th day of December, 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 tenant of a building, who is aggrieved by the concurrent orders of eviction, is the petitioner herein. Eviction was ordered under Sections 11(2)(b) and 11(4)(i) of the Kerala

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Buildings (Lease and Rent Control) Act, 1965. The 1^st respondent is the landlady.

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The second respondent herein is alleged as the sub

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tenant.

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The learned counsel for the petitioner

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Sri.R.Surendran submitted that there are no sufficient averments

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in the pleadings with regard to the sublease alleged and that

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RCR.404/2013

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: 2 :

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there is no averment in the RCP that the sublease is without the consent of the landlady and the same being the requirement of the statute and the courts below are not correct in ordering eviction.

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We have perused the copy of the petition, which was made available by the learned counsel for the petitioner. In paragraph 3 of the petition, it has been stated as follows:-

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“The first respondent is not occupying the petition schedule room and he has sublet the petition schedule room to the respondent No.2 for higher rent. Now the respondent No.2 is keeping the petition schedule room for the purpose of storing his rented articles i.e., the generators, chairs, tables, etc. Since those articles are kept in the petition schedule room there are serious damages caused to the petition schedule room. The 1^st respondent has violated the terms of the kachit and the petitioner is not willing to retain the room with him. 1^st respondent is conducting a Petrol Pump in Moolakkadavu, Pandakkal, Mahe. 1^st respondent has sub-let the petition schedule room to respondent No.2 against the terms of the kachit. So the respondents are liable to be evicted under Sec.11 (4)(i) of Act 2 of 1965.”

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The landlady has pleaded that the arrangement

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RCR.404/2013

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: 3 :

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made by the tenant with the 2^nd respondent is clearly in violation of the kachit. Going by the decision of a Division Bench of this

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Court in Rajamma Vs. Leela [1991 (2) KLT 862], with regard to pleadings, a liberal approach is required. It has been held therein as hereunder:-

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“ 13. It cannot be denied that issuance of a notice, except in a case covered by S.11(2) of the Act, is not mandatory for eviction under S.1193) of the Act. The court has to consider the claim in the light of the evidence and circumstances to find whether the plea is bona fide or not, which is a question of fact. In our view in considering the plea of the landlord a realistic and not a pedantic approach is what is called for. Even in the matter of construing the pleadings a liberal approach is necessary, as otherwise there would be the risk of justice becoming a casuality.”

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Therefore, we are not impressed by the above argument of the learned counsel for the petitioner.

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On the evidence also, we find that it has been proved

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that the 2^nd respondent, the sub-tenant, is doing business in the premises. It has come up in evidence that, when the Commissioner visited the room, the key was handed over by the

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RCR.404/2013

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: 4 :

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2^nd respondent and also it was found by the Commissioner that when he left after inspection, he was seen locking the room. On verification, it was found by the Commissioner that the various articles kept inside the petition schedule room belonged to the 2^nd respondent. He was doing business in items like chairs, tables, tarpaulin, tea pots, etc. There is no contra evidence from the part of the tenant sufficient enough to controvert the above evidence.

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The Appellate Authority, after considering the evidence and the pleadings, confirmed the findings in this regard. It was observed by the Appellate Authority in paragraph 15 of the judgment that the presence of key of the petition schedule room with the sub tenant and the fact that it is he who has opened and closed the room and that the room is filled with articles belonging to him are all factors which would establish that the sub tenant is in exclusive possession of the petition schedule room.

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We find no reason to interfere with the impugned judgment. Accordingly, we dismiss the Rent Control Revision.

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RCR.404/2013

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: 5 :

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The learned counsel for the petitioner prays for a

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larger time to vacate the premises.

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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 upto 31.03.2014, to

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

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(i) He remits the entire arrears of rent as on 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 landlady on or before 31.03.2014.

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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 landlady.

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executing court shall be kept in abeyance upto 31.03.2014, if

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RCR.404/2013

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the aforesaid conditions are satisfied.

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(d) If there is default in performing any of the conditions

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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/12/12

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// True Copy //

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PA to Judge

N.K.Sundaram v. Edathikandy Nabeesu

Case brief

What is this about?

What did the court decide?

N.K.Sundaram v. Edathikandy Nabeesu

Case brief

What is this about?

What did the court decide?

What the court decided

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