Dismissed

Shimmy Raphael v. Usha Thulasidasan

Kerala HC12 Nov 2014RCRev./52/2014

Case brief

AI extract

What is this about?

The High Court dismissed the rent control revision challenging eviction orders. Holding that the landlord proved bona fide residential need and comparative hardship was in her favor, the court rejected interference. A one-year stay was granted if conditions were met.

What did the court decide?

Eviction order upheld with time till 31.7.2015 to vacate, conditional on deposit of rent and affidavit undertaking.

Shimmy Raphael Vs Usha Thulasidasan — 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 &

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936

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RCRev..No. 52 of 2014 ()

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AGAINST THE ORDER/JUDGMENT IN RCA 127/2011 of VI ADDL.DISTRICT JUDGE AND RENT CONTROL APPELLAT AUTHORITY, ERNAKULAM DATED 31-10-2013.

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AGAINST THE ORDER/JUDGMENT IN RCP 120/2010 of III ADDL.MUSIFF AND RENT CONTROL COURT, EKM DATED 31-08-2011

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REVISION PETITINER/APPELLANT/RESPONDENT:

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SHIMMY RAPHAEL, W/O.RAPHAEL, AGED 53 YEARS, RESIDING AT ELANGERIL HOUSE PALARIVATTOM P.O., ERNAKULAM, COCHIN - 682 025 KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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BY ADVS. SRI.K.C.ELDHO SRI.JIJO THOMAS SRI.SURAJ.S SRI.ANESH PAUL SRI.A.V.CHARLES SRI.ANEESH JAMES SMT.SANDHYA RANI VALIYAKATH SRI.ANIL R.NATH

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RESPONDENT/RESPONDENT/PETITIONER:

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----------------------------------USHA THULASIDASAN, AGED 48 YEARS W/O.THULASIDASAN, KRISHNA BUILDINGS NEAR CHANGAMPUZHA PARK, EDAPPALLY P.O. COCHIN - 682 024, KANAYANNUR TALUK ERNAKULAM DISTRICT.

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R1 BY ADV. SRI.K.P.RAJEEVAN

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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acd

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

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R.C.R.No.52 of 2014

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Dated this the 12^th day of November, 2014

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ORDER

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K.T. SANKARAN,J.

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Tenant in R.C.P.No.120 of 2010 on the file of the Rent

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Control Court, Ernakulam challenges the concurrent findings

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of the authorities below under Section 11(8) of the Kerala

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Building (Lease & Rent Control) Act.

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The respondent/landlord filed the Rent Control

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Petition under Section 11(4) (ii) and 11(8) of the Act. The

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Rent Control Court rejected the claim under Section 11(4) (ii)

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and allowed the Rent Control Petition under Section 11(8) of

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the Act. The tenant filed R.C.A. No.127/2011 on the file of

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the Rent Control Appellate Authority. The landlord filed a

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Memorandum of Cross Objection challenging the finding of

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R.C.R.No.52/14

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the Rent Control Court under Section 11(4) (ii) of the Act.

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The Appellate Authority confirmed the order of the Rent Control Court under Section 11(4) (ii) and 11(8) of the Act. The tenant challenges concurrent findings of the Courts below.

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The case of the landlady is that the petition

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schedule room was entrusted to the tenant for the

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purpose of using it as a godown and office for her business as per lease deed dated 1.3.2005. The period of lease was

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expired on 31.1.2006. The tenant converted her business

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as that of Automobile Workshop in the petition schedule building. The landlady and her family members are residing in the up stair portion of the building. According to the landlady, she wants additional accommodation in respect of the petition schedule room, so that, it can be converted as

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a bed room. It was contended that the only convenient

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R.C.R.No.52/14 3

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room for that purpose is the petition schedule room. The

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landlady contended that by removing the shutters and constructing a wall in its place with doors, windows and ventilators, the room can be converted into a bed room. A

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well is also situated adjacent to the petition schedule room.

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The tenant contended that she is conducting an Automobile workshop and is having her office and business in the tenanted premises. The income derived from therein is the only source of her livelihood. The up stair

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portion of the building consists of an area of 1000 sq.ft. There is no bona fides in the prayer for additional accommodation. It was contended that the petition schedule room is not convenient for a residential accommodation. Out of the five rooms in the ground floor, only two rooms are occupied by the tenants and the

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R.C.R.No.52/14

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remaining three rooms are in the possession and enjoyment of the landlady. Those rooms can be utilised by the landlady for her purpose.

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It has come out in evidence that the children of the landlady are grown up now and that they require independent bed rooms. It has also come out in evidence that the parents of the landlady used to visit her house and it is very difficult to accommodate them in the available limited space. The Commissioner reported that first floor of the building consists of a bed room, dining room , toilet and kitchen. It is proved in the case that in the portion of the building in possession of the landlady, there is only one bed room. The Courts below relied on the evidence of PW1 and held that the claim made by the landlady under Section 11(8) of the Act is bona fide.

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The Courts below also considered the

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R.C.R.No.52/14 5

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comparative hardship under the 2^nd proviso to Section 11 (10) of the Act. It was held that the hardship that may be caused to the tenant by granting an order of eviction will not outweigh the advantage to the landlord, if eviction is ordered. It was held that no documents were produced by the tenant to prove her income. The landlady has a case that the husband of the tenant is an employee in BSNL and the tenant is not depending for her livelihood mainly on the income derived from the business conducted in the petition schedule building. The son of the tenant is undergoing his studies for B.Tech course and for that purpose, an educational loan was taken by the tenant. The Rent Control Court found that, it is not a reason to hold that the comparative hardship element is in favour of the tenant. It was held that the landlady succeeded in proving that she could conveniently use the petition schedule

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building for the purpose of her residence and that the

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hardship that would be caused to the tenant would not outweigh the advantage of the landlady. The Appellate Authority confirmed the findings of the Rent Control Court.

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The findings rendered by the authorities below

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are findings of fact. The orders passed by the authorities

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below can be interfered with only if it is shown that they are vitiated by illegality, irregularity or impropriety. We are of the view of that there is no such illegality, irregularity or impropriety in the order and judgment of the Courts below.

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For the aforesaid reasons, we do not find any

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ground to interfere with the well considered order and judgment of the Rent Control Court and the appellate authority. The Rent Control Revision is accordingly

R.C.R.No.52/14

dismissed.

Lastly, the learned counsel appearing for the

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petitioner/tenant submitted that one year's time may be granted to the tenant to vacate the petition schedule building.

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The learned counsel appearing for the landlady submitted that in the facts and circumstances, it would

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not be just and proper to grant one year's time.

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Taking into account the facts and circumstances

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of the case, we grant time till 31.7.2015 to the tenant to

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vacate the petition schedule building on condition that she

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shall file an affidavit before the Executing Court on or before 31.12.2014 unconditionally undertaking to vacate the petition schedule building on or before 31.7.2015 and also on condition that the tenant shall deposit/pay monthly

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rent on or before 10^th of the succeeding months till she

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vacates the building. If the tenant complies with the conditions mentioned above, the order of eviction shall not be executed till 31.7.2015. If the tenant fails to comply with any of the conditions mentioned above, the order of

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eviction shall be executable forthwith.

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K.T. SANKARAN, JUDGE.

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P.D. RAJAN, JUDGE.

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acd

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R.C.R.No.52/14 9

Shimmy Raphael v. Usha Thulasidasan

Case brief

What is this about?

What did the court decide?

Shimmy Raphael v. Usha Thulasidasan

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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