Allowed

S.Nadarajan v. Koyathodi Moideen

Kerala HC4 Apr 2017RCRev./186/2015

Case brief

AI extract

What is this about?

High Court on revision held that respondent failed to discharge provisions under section 11(3) of the Act. Removed eviction protection granted by appellate authority. Granted eight months to vacate subject to conditions. Relied on precedents regarding bona fide need.

What did the court decide?

Eviction protection quashed; respondent ordered to vacate within eight months, file affidavit, and deposit arrears.

S.Nadarajan Vs Koyathodi Moideen — 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 RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939

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RCRev..No. 186 of 2015 ()

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AGAINST RCA 118/2013 of THE RENT CONTROL APPELLATE AUTHORITY/ADDL.DISTRICT JUDGE-III KOZHIKODE, DATED 06-06-2015 AGAINST RCP 38/2012 of THE RENT CONTROL COURT/PRL.MUNSIFF-II , KOZHIKODE, DATED 31-08-2013

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REVISION PETITIONER/RESPONDENT/RESPONDENT:

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S.NADARAJAN 50 YEARS, S/O.SUBRAMANIYAN, BARBAR, BARBAR SHOP, 21/121G, AYYANKAR ROAD, NAIPALAM, NEAR NAIPALAM, BUS STOP, KALLAI P.O., PANNIYANKARA AMSOM DESOM, KOZHIKODE DISTRICT.

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BY ADVS.SRI.SANTHARAM.P SMT.REKHA ARAVIND

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RESPONDENTS/APPELLANTS/PETITIONERS:

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1. KOYATHODI MOIDEEN

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61 YEARS, S/O.MUHAMMEDKOYA, K.T.HOUSE, MUNDIYADI VAYAL, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK.

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2. KUNHITHAN MALIYEKKAL SANIABI W/O.KOYATHODI MOIDEEN, 48 YEARS HOUSE WIFE, K.T.HOUSE, MUNDIYADI VAYAL, NADANCHERY ROAD, KALLAI, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK.

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R1-R2 BY ADV. SMT.V.B.SANTHINI R1-R2 BY ADV. SRI.K.SANEESH KUMAR

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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VPS

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K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ.

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R.C.R. No.186 of 2015

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Dated this the 4^th day of April, 2017

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O R D E R

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Harilal, J.

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1.The revision petitioner is the tenant against whom an order of eviction has been passed under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act'). The parties are referred to as in the Rent Control Petition. According to the petitioners, the 1^st petitioner is not having any job or avocation for his livelihood, after returning from Gulf country. So he bona fide needs the petition schedule shop room for starting a grocery shop.

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2.The Rent Control Court dismissed the petition on the ground that two months before filing of the rent control petition, the petitioners got possession of another vacant room in the same building, when another tenant

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R.C.R. No.186/2015 2

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surrendered the said shop room; but instead of starting the proposed business in the said vacant shop room, they

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have rented out the said shop room to another tenant and thus the said conduct of the petitioners indicates the lack

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of bona fides of the need projected in the rent control petition.

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3.In appeal, the Appellate Authority reversed the said finding in the light of the decision of this Court in George T.I v. K.L.Stanley (2013 (4) KHC 543) and Jerry Joseph v. Selvaraj (2002 (2) KLT 129) and Sait Nagee Purushotham and Co.Ltd. v. Vimalabai Prabhulal (2005 (4) KLT 452). Thus the divergent findings have come up before this Court for examination of its legality and propriety invoking the revisional jurisdiction of this Court under section 20 of the Act.

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4.Heard the learned counsel for the petitioners and the learned counsel for the respondent.

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5.The learned counsel for the respondent advanced

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arguments to justify the findings of the Rent Control Court whereby the rent control petition was dismissed. On the other hand, the learned counsel appearing for the petitioners advanced arguments to justify the findings of the Appellate Authority whereby the rent control appeal was allowed. Therefore, the question to be considered is whether the Appellate Authority is justified in reversing the findings of the Rent Control Court.

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6.Going by the impugned judgment, it could be seen that the Rent Control Court rejected the claim under section 11 (3) mainly on the finding that two months before issuance of Ext.A1 lawyer notice, another tenant by name Viswanathan, who was occupying another shop room in the same building, has surrendered vacant possession of his shop room to the petitioners and the petitioners have rented out the said shop room to one Razak and Sangeeth. The findings of the Rent Control Court on the above conduct is that if the need was a genuine one,

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certainly, the petitioners could have started the grocery shop in the said shop room which was transferred to Razak and Snageeth.

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7.It is the case of the petitioners that the transfer of the said shop room was not effected through them, though, the former tenant had obtained his concurrence also. As rightly found by the appellate court, it is a matter of common knowledge that there may be occasions of transfer from one tenant to another tenant with the concurrence of the landlords and the agreement between the new and former tenants would be the basis of such transfers and consent of the landlord would be formal only. Absolutely there is no evidence to show that the transfer of the said sop room was effected directly through the landlords. Further as rightly held by the Appellate Authority in the decision in George T.I v. K.L.Stanley (Supra), this Court held that mere fact that landlord had an opportunity to get vacant possession of another room

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and did not start business does not mean that the bona fide need cannot be said to be genuine. Several factors would go into the mind of landlord and once a choice is made by landlord to take a particular room or rooms for his own occupation, even if, during the pendency of the eviction petition, he comes in possession of another room, that may be immaterial. The above view is fortified by the decision in Jerry Joseph v. Selvaraj (2002 (2) KLT 129) and Sait Nagee Purushotham and Co.Ltd. v. Vimalabai Prabhulal (Supra).

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8.As regards the first proviso, the respondent contended that the petitioners were in possession of another vacant room attached to his house; but no evidence was forthcoming to prove the availability of such a vacant room in the possession of the petitioners. Nobody was examined on the side of the respondent to show that the room attached to the house of the petitioners was suitable for starting grocery shop. As regards the first limb of the

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second proviso, no evidence has been adduced to substantiate the income which is being derived from the petition schedule shop room and he has no case that he is mainly depending upon the income derived from the barber shop in the petition schedule shop room.

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9.Coming to the first proviso even though it has come out in evidence that the respondent is in possession of another vacant room and the respondent himself admitted that even though that room is not being used for any purpose he has been keeping it by paying a monthly rent of Rs.500/- for the last one year. The said admission itself would shows that he is in vacant possession of another shop room also, though the same is not of his own. Therefore it has come out in evidence that the alternative vacant room is available in the possession of the respondent himself even at the time of passing the rent control petition.

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10.Thus, the respondent has miserably failed to discharge

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the twin proviso to section 11(3) of the Act. Consequently the Appellate Authority is justified in finding that the respondent is not entitled to get the protection under section 11(3) of the Act. We do not find any reason to interfere with the factual findings of the court below invoking the jurisdiction of this Court under section 20 of the Act.

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11.At last, the learned counsel appearing for the respondent urged for granting one year time to vacate the premises. Per contra, the learned counsel appearing for the petitioners opposed the said request and submitted that a reasonable time alone can be granted. Having regard to the facts and circumstances of the case, we are inclined to grant a reasonable time to the respondent to vacate the petition schedule shop room. The respondent shall vacate the petition schedule shop room within eight months from today on the following conditions:-

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(i) The respondent shall file an affidavit, expressing unconditional undertaking that he will vacate the

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petition schedule shop room without any obstruction within eight months, within two months from the date of receipt of the copy of this order.

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(ii) He shall deposit the entire arrear, if any, before the Rent Control Court within a period of two months from today.

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(iii) The respondent shall continue to pay the rent, without default.

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(iv) In the event of failure to comply with any of the conditions as aforesaid, the time granted to the respondent to vacate the premise would stand automatically vacated and the Rent Control Court will be at liberty to proceed with the execution proceedings.

Sd/-

K.HARILAL,

JUDGE

Sd/-

RAJA VIJAYARAGHAVAN V., JUDGE

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vps

S.Nadarajan v. Koyathodi Moideen

Case brief

What is this about?

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S.Nadarajan v. Koyathodi Moideen

Case brief

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