Dismissed

Valiyaveettil Mohammed v. Abdu Samad

Kerala HC17 Nov 2014RCRev./304/2014

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a revision petition challenging an eviction order. It held that the landlord's need for business expansion was bona fide and that the hardship to the landlord outweighed the tenant's hardship, granting time for vacating the premises.

What did the court decide?

Time granted till 30.4.2015 to vacate the building, subject to deposit of arrears by 31.12.2014 and unconditional undertaking.

Valiyaveettil Mohammed Vs Abdu Samad — Landlord and Tenant | Kerala HC (2014)

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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 K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 17TH DAY OF NOVEMBER 2014/26TH KARTHIKA, 1936

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RCRev..No. 304 of 2014 ()

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AGAINST THE ORDER/JUDGMENT IN RCA 62/2013 of ADDL. D.C. KOZHIKODE- II DATED 30-07-2014

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AGAINST THE ORDER/JUDGMENT IN RCP 38/2011 of ADDL.M.C.,KOZHIKODE-II DATED 23-02-2013

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REVISION PETITIONER/RESPONDENT:

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VALIYAVEETTIL MOHAMMED AGED 82 YEARS S/O MOIDEEN, MOHAMMED SONS CLOTH MART NEAR KERALA BAKERY.P.O, MANKAV, KOZHIKODE.

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BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH

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RESPONDENT(S)/RESPONDENT/PETITIONER:

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ABDU SAMAD, S/O LATE AHAMMED HAJI, RESIDING AT THAROL HOUSE P.O.MANKAVU, KOZHIKODE TALUK AND DISTRICT KOZHIKODE-673007.

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R1 BY ADV. SRI.K.M.FIROZ ,CAVEATOR

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.T.SANKARAN & P.D.RAJAN, JJ

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......................................... RCR No.304 of 2014 ......................................... Dated 17^th November, 2014

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ORDER

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K.T.SANKARAN,J

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The tenant in RCP No.38 of 2011 on the file of Additional Rent Control Court, Kozhikode challenges the concurrent findings of the Rent Control Court as well as the appellate authority under Section 11(8) of the Kerala Buildings(Lease and Rent Control)Act (hereinafter referred to as 'the Act').

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Hereinafter, the parties are referred to as per their rank in the Rent Control Petition.

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The building in question was let out as per a rent agreement dated 19.4.1966 to the tenant for a monthly rent of Rs.50/-. The rent was enhanced and refixed at Rs.75/-. The building was let out by the father of the landlord. As per a partition deed dated 15.9.2004, the petition schedule building was alloted to the share of the petitioner/landlord. The landlord is doing business in perfumes. The landlord is residing in a rental building.

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RCR 304/2014

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The house constructed by the landlord in the property alloted to him in the partition is being used for storing perfumes. The tenant is doing business in textiles in the petition schedule building. The landlord got vacant possession of another room in the same building. The landlord is conducting his business in perfumes in one of the rooms in the building. According to the landlord, he wants to expand the business and for that purpose, the petition schedule room as well as the room in his occupation and the room which he got possession from another tenant are required. In the house belonging to him, he wants to reside and the stock of perfumes is to be shifted to the petition schedule room and the other room of which he got vacant possession.

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The tenant disputed the bonafides of the need for additional accommodation. He contended that it is only a ruse for eviction. The tenant also raised a contention that he is depending for his livelihood on the income derived from the business conducted in the petition schedule room. The tenant contended that on a

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RCR 304/2014

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consideration of the comparative hardship under the first proviso to Section 11(10) of the Act, it could be seen that the hardship which may be caused to the tenant by granting eviction will not outweigh the advantage to the landlord.

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Before the Rent Control Court, the landlord was examined as PW1 and Exts.A1 to A17 series were marked on his side. The son of the tenant was examined as RW1 and Exts.B1 to B9 were marked. The Commissioner's report and sketch were marked as Exts.C1 to C3.

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The trial court, on an elaborate consideration of the facts and circumstances of the case, held that the need put forward for additional accommodation by the landlord is bonafide. On the basis of the Commissioner's reports, it was found that at present the landlord is occupying the residential building for storing his business articles therein and the house is full of stock. It is also an admitted case that the landlord is residing in a rented house. It was found that the need put forward by the landlord to shift the articles of his business from his

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RCR 304/2014

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house to the tenanted building is not a luxury. On the aspect of comparative hardship, the Rent Control Court took note of the hardship that would be caused to the landlord if the prayer for eviction is not allowed. The Rent Control Court held that the evidence would show that the tenant and his family members are not depending for livelihood mainly on the income derived from the business conducted in the petition schedule building. The son of the tenant is employed in a gulf country. Another son is conducting a footwear shop near the petition schedule building. The tenant has one acre of land and another building of his own. Another son of the tenant is a Civil Engineer and the daughter in law owns shop rooms. It has come out in evidence that the tenant has constructed houses for all his children. The tenant is having three other shop rooms at Mankavu, the same locality itself and those rooms have been let out to tenants. It was found by the Rent Control Court that the tenant has income from various other sources and that the income derived from the business is not the main

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RCR 304/2014

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income of the tenant. It was also found that other buildings are available for him to conduct his business. It was found by the Rent Control Court that the advantage to the landlord by granting an order of eviction will outweigh the hardship that may be caused to the tenant. Accordingly, comparative hardship component was decided in favour of the landlord.

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Another aspect to be noted is that the tenant was not regular in paying even the monthly rent of Rs.75/and the father of the present landlord had to file RCPNo.2/1985. Even the present landlord had to make a prayer for eviction on the ground of arrears of rent and only after passing an order of eviction, the tenant deposited the arrears of rent.

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The findings of the Rent Control Court were confirmed by the Appellate Authority. The Appellate Authority also considered the facts and circumstances of the case in detail. The Appellate Authority found that there was no ground to interfere with the findings of the Rent Control Court.

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RCR 304/2014

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Revisional court exercising power under Section 20 of the Act, would not be justified in interfering with the findings of fact unless the order and judgment are vitiated by material irregularity, illegality or impropriety. No such ingredient is made out in the present case to invoke the revisional jurisdiction of this court. Accordingly, the RCR is dismissed.

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Lastly, the learned counsel appearing for the petitioner/tenant sought for nine months' time to vacate the petition schedule building. Learned counsel appearing for the respondent/landlord submitted that a reasonable time may be granted to the tenant. Taking into account the facts and circumstances of the case, we grant time till 30.4.2015 to the tenant to vacate the petition schedule building on condition that he shall file an affidavit before the Rent Control Court on or before 31.12.2014 unconditionally undertaking to vacate the petition schedule building on or before 30.4.2015 and also on condition that he shall deposit the arrears of rent, if any, before the Rent Control Court on or before

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RCR 304/2014

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31.12.2014 and also on condition that he shall continue to deposit the monthly rent on or before 10^th of the succeeding months till he vacates the petition schedule building.

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K.T.SANKARAN, JUDGE

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P.D.RAJAN, JUDGE

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lgk

Valiyaveettil Mohammed v. Abdu Samad

Case brief

What is this about?

What did the court decide?

Valiyaveettil Mohammed v. Abdu Samad

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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