Allowed

Krishnan K v. Thajneesa

Kerala HC7 Aug 2017RCRev./121/2016

Case brief

AI extract

What is this about?

The High Court of Kerala set aside an appellate order upholding eviction of a tenant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Court held that the appellate court erred in omitting to consider the landlord's admitted possession of other vacant premises, which negated the tenant's bona fide claim.

What did the court decide?

The impugned judgment of the Appellate Authority was set aside and the rent control revision was allowed.

Krishnan K Vs Thajneesa — Landlord and Tenant | Kerala HC (2017)

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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.HARILAL

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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MONDAY, THE 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939

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RCRev..No. 121 of 2016 (A)

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AGAINST THE JUDGMENT IN RCA 5/2014 of ADDL. D.C. & SESSIONS COURT - IV, PALAKKAD, DATED 14-12-2015

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AGAINST THE ORDER IN RCP 5/2012 of MUNSIFF COURT, ALATHUR, DATED 05-02-2014

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REVISION PETITIONER/RESPONDENT/RESPONDENT: -

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KRISHNAN K, S/O. LATE KOLAVAN, MANIYIL PARAMBIL (H), ERIMAYUR P.O, ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P

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RESPONDENT/APPELLANT/PETITIONER: -

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THAJNEESA, W/O. LATE ABDUL RAHIMAN, KUNDUPARAMBIL (H), ERIMAYUR P.O, ALATHUR TALUK, PALAKKAD DISTRICT - 678 509.

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R1 BY ADV. SRI.K.MOHANAKANNAN

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R1 BY ADV. SMT.A.R.PRAVITHA

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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DMR/-

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K. HARILAL & P. SOMARAJAN, JJ.

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R.C.R. No.121 of 2016

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Dated this the 07^th day of August, 2017

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O R D E R

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K. Harilal, J.

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The revision petitioner is the tenant, who is ordered to be evicted under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The landlord, who is the respondent herein, filed the aforesaid application under Sections 11(3) and 11(2)(b) of the Act. The Rent Control Court allowed the Rent Control Petition under Section 11(2)(b) of the Act and dismissed the claim under Section 11(3) of the Act. But, in appeal, the Appellate Court reversed the findings of the Rent Control Court under Section 11(3) of

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the Act and allowed the appeal. Thus, the legality and propriety of the divergent findings of the courts below under Section 11(3) of the Act have come up for our consideration in this revision.

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Though this revision has been filed on various grounds, the learned counsel for the tenant mainly contended that the lower appellate court failed to consider valuable evidence, available in favour of the tenant, under the first

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R.C.R. No.121 of 2016

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proviso to Section 11(3) of the Act. According to the learned counsel, it has come out in evidence by the admission of landlord himself that she has another two shop rooms in her possession at the time of adducing evidence before the Rent Control Court. No special reason was given for not occupying the said shop rooms for starting the bakery and stationery business for her daughter, who is allegedly a dependant for the shop rooms.

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On the other hand, the learned counsel for the respondent/landlord advanced arguments to justify the findings under first proviso to Section 11(3) of the Act. According to the learned counsel, the Appellate Court has rightly considered the evidence, on record, under the first proviso to Section 11(3) of the Act.

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The question in controversy involved in this revision centers around the evidence, on record, under first proviso to Section 11(3) of the Act. It is trite law settled by the decision of this Court that the initial burden of proof under the first proviso to Section 11(3) of the Act is on the tenant. Coming to the instant case, it is true that the tenant has not taken steps to establish the availability of the other vacant rooms in

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R.C.R. No.121 of 2016

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the possession of the landlord. But, in the counter statement filed by the tenant it was specifically contended that the landlord has other vacant shop rooms in her possession for starting the bakery business. Going by the oral testimony of the landlord it is seen that during the cross-examination by the tenant on availability of vacant rooms, the landlord herself admitted that she has two other vacant rooms in her possession at the time of giving evidence. No special reason was given for not occupying the aforesaid shop rooms for the proposed business. It is pertinent to note that she herself admitted that those vacant shop rooms are situated adjacent to roads on both sides. We are of the opinion that the admission as regards the availability of other vacant rooms by the landlord herself is sufficient to establish the ingredients of first proviso to Section 11(3) of the Act and it was incumbent upon the landlord to give special reasons for not occupying the vacant rooms. In the absence of any special reasons for not occupying the vacant rooms, which stands in her possession, it can be safely concluded that the bona fides of the need is hit by the first proviso to Section 11(3) of the Act.

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R.C.R. No.121 of 2016

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We remind ourselves that the scope of interference under the revisional jurisdiction, on factual findings, is confined to the situation where the courts below omitted to consider valuable evidence, on record, or placed reliance on irrelevant evidence or wrong proposition of law. In the instant case, it stands proved that the landlord has another vacant rooms in her possession at the time of adducing evidence. But, the Appellate Court has omitted to consider the aforesaid valuable evidence, on record, and the said circumstance warrants interference of this Court under revisional jurisdiction.

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In the above view, the impugned judgment passed by the Appellate Authority will stand set aside and this Rent Control Revision will stand allowed.

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K. HARILAL (JUDGE)

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P. SOMARAJAN (JUDGE)

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DMR/-

Krishnan K v. Thajneesa

Case brief

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Krishnan K v. Thajneesa

Case brief

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