Dismissed

Shahul Hameed v. Sabira

Kerala HC16 Aug 2018RCRev./278/2018

Case brief

AI extract

What is this about?

The revision petition challenging the eviction order under Section 11(3) of the Kerala Building(Lease and Rent Control) Act was dismissed. The Court held that 'dependency' implies dependence on the tenanted premises rather than financial dependency. No perversity was found in the lower courts recognizing the brother as a dependant for starting a business where no other suitable building existed in

What did the court decide?

Six months time granted to surrender possession, conditional upon filing affidavit of unconditional undertaking to vacate and deposit arrear of rent.

Shahul Hameed Vs Sabira — Kerala HC (2018) — LawSathi Research

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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 MRS. JUSTICE ANNIE JOHN

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THURSDAY ,THE 16TH DAY OF AUGUST 2018 / 25TH SRAVANA, 1940

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RCRev.No. 278 of 2018

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AGAINST THE JUDGMENT DATED 25-08-2017 IN RCA 4/2015 of THE RENT CONTROL APPELLATE AUTHORITY, PALAKKAD

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AGAINST THE ORDER DATED 27-09-2014 IN RCP 4/2011 of RENT CONTROL COURT, CHITTUR

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REVISION PETITIONER/APPELLANT/RESPONDENT-TENANT:

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SHAHUL HAMEED, S/O. ANIMUTHU RAWTHER, AGED 63 YEARS VANIYATHARA, KODUVAYUR, KODUVAYUR-I VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT

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BY ADV. RAJESH SIVARAMANKUTTY

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RESPONDENT/RESPONDENT/PETITIONER-LANDLORD:

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SABIRA, W/O. LATE KHAJA MOIDEEN, AGED 44 YEARS AKSHAYA NAGAR, PALAKKAD ROAD, KODUVAYUR-I VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678501

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.08.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R.C.R. No.278 of 2018

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O R D E R

K. Harilal, J.

The revision petitioner is the tenant, who is confronting with an order of eviction passed concurrently by the courts below under Section 11(3) of the Kerala Building(Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') in R.C.P. No.4 of 2011 of the Rent Control Court, Chittur and R.C.A. No.4 of 2015 of the Rent Control Appellate Authority, Palakkad. The parties are referred to as in the Rent Control Petition.

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The petitioner filed the aforesaid Rent Control Petition under Sections 11(2)(b) and 11(3) of the Act, on the ground that the rent was in arrear from January, 2005 onwards, and she bona fide needs the petition schedule building, for starting a

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footwear shop for her brother, who is a dependant on her, for the petition schedule building. According to the petitioner, her brother Sheikh Mohammed is a

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dependant residing with her and he has no job or any income at present. So also, neither the petitioner nor the dependant has any other buildings of their own in the same town for starting the aforesaid business. The respondent is not mainly depending upon the income from the business carried on in the petition schedule building and several other buildings are available in the locality to shift the business from the tenanted premises.

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The respondent resisted the said claim for eviction under Sections 11(2)(b) and 11(3) of the Act, contending that no amount is due to the petitioner as arrears of rent and the bona fide need projected in the petition is a ruse for eviction only. According to him, the brother of the petitioner Sheikh Mohammed is not a dependant on the petitioner, as he is residing

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separately at a distance of more than 20 kms. away

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from the residence of the petitioner and he is aged 60 years old. Further, it is contended that the respondent is mainly depending upon the income derived from the business in the petition schedule building and no other vacant rooms are available in the locality, to shift his business from the tenanted premises.

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On the aforesaid rival contentions, both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the rent was in arrear, as claimed by the petitioner, the need projected in the petition is bona fide and the respondent is not entitled to get protection under the second proviso. The respondent filed an appeal, challenging the said order and the Appellate Authority confirmed the order of eviction under Section 11(2)(b)

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of the Act and remanded the case back to the Rent Control Court for fresh consideration, after affording

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an opportunity to the petitioner to amend the pleadings. Thereafter, the petitioner amended the pleadings and both parties adduced further evidence under Section 11(3) of the Act. However, after considering the further evidence adduced by both parties, the Rent Control Court again passed an order of eviction under Section 11(3) of the Act, on a finding that the need is bona fide and the respondent is not entitled to get protection under the second proviso. In appeal, the Appellate Authority also confirmed the said finding and dismissed the appeal. Thus, the concurrent findings granting order of eviction under Section 11(3) of the Act have come up in this revision.

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Heard the learned counsel for the revision

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petitioner.

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The sum and substance of the arguments advanced by the learned counsel for the revision petitioner is that the courts below have failed to

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evaluate the evidence adduced by the petitioner to prove his dependency on the petitioner in the petition schedule building in its correct perspective. It has come out in evidence that the alleged dependant is a gulf returnee, aged more than 60 years and he is residing 20 kms. away from the petition schedule building. Therefore, the courts below ought to have found that the said Sheikh Mohammed was not a dependant on the petitioner. Further, it is contended that the courts below ought to have found that the need projected in the petitioner is not bona fide.

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The scope and extent of interference in the revisional jurisdiction is confined to legality, propriety and regularity of the findings of the court below and this Court sitting in revision is not inclined to re-appreciate the evidence on record, unless it is found that the findings are perverse and vitiated by non-consideration of any material evidence or misreading of the evidence on record.

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In view of the arguments at the Bar, the

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point to be considered is, whether there is any perversity in the concurrent findings of the court below that Sri.Sheikh Mohammed, the brother of the petitioner is a dependant on the petitioner? It is contended that the said Sheikh Mohammed is a gulf returnee and he is aged more than 60 years. So also, he is residing more than 20 kms away from the petition schedule building.

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According to the learned counsel for the revision petitioner, the aforesaid factors would negate the alleged dependency claimed by the petitioner. We are unable to countenance the said argument advanced by the learned counsel for the revision petitioner. It is trite law settled by the Full Bench of this Court in Raghavan v. Kelappan [2006(1) KLT 1] dependency contemplated under Section 11(3) of the Act is not financial dependency and it is a dependency for the tenanted premises.

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In the instant case, it has come out in evidence that the petitioner has some other buildings in her possession. But, she has given special reason for not occupying the aforesaid buildings for starting the proposed business. According to her, those buildings are not suitable for starting footwear business and the courts below have accepted the said reason. We do not find any reason to interfere with the said findings.

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As regards the dependant is concerned, the respondent also has no case that the dependant has any other building of his own in his possession in the same town for starting the said business. Thus, the petitioner has succeeded in proving that there is no other suitable buildings in the same town to start the proposed business. It follows that her brother Sheikh Mohammed is a dependant for the petition schedule building.

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In the above view, the courts below are

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justified in rejecting the contention that the petitioner's brother Sheikh Mohammed is not a dependant of the petitioner. We do not find any kind

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of perversity in the appreciation of evidence under which the courts below arrived at a finding that the petitioner's brother Sheikh Mohammed is a dependant on the petitioner. No other point has been raised before us in this revision petition. Therefore, we find that this revision petition fails and is dismissed accordingly.

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The learned counsel for the tenant sought for some time to surrender the vacant possession of the petition schedule building. We are of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule shop room, on terms. The revision petitioner shall surrender the petition schedule shop rooms within six months from today, provided he could comply the conditions given below within the specified time.

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(i) The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within six months, from today.

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(ii)The respondent/tenant shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default.

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(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order.

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The Rent Control Revision is dismissed

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accordingly. All pending Interlocutory Applications will stand closed.

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Sd/ K. HARILAL JUDGE

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Sd/ ANNIE JOHN JUDGE