Dismissed

Kuzhikkattuparambil Venukrishnan v. Cheriyakandikkal Illikkal Sahida

Kerala HC22 Nov 2018RCRev./376/2018

Case brief

AI extract

What is this about?

High Court of Kerala dismissed a rent control revision challenging an eviction order under Section 11(3). Upholding lower courts findings, the Court held no illegality or perversity existed regarding the availability of vacant rooms and bona fide need. Petitioner granted eight months to vacate premises on specific conditions.

What did the court decide?

Eviction order upheld; tenant granted eight months to vacate premises upon filing unconditional undertaking and depositing arrears of rent.

Kuzhikkattuparambil Venukrishnan Vs Cheriyakandikkal… — Execution and Attachment | Kerala HC (2018)

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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 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940

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RCRev..No. 376 of 2018

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AGAINST THE JUDGMENT DATED 12-07-2018 IN RCA NO.52/2013 of THE RENT CONTROL APPELLATE AUTHORITY, THALASSERY

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AGAINST THE ORDER DATED 25.02.2013 IN RCP NO.34/2011 of THE RENT CONTROL COURT, THALIPARAMBA

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REVISION PETITIONER/APPELLANT/RESPONDENT:

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KUZHIKKATTUPARAMBIL VENUKRISHNAN

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AGED 65 YEARS S/O. KRISHNAN,

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CAPITOL SALOON, COURT ROAD, THALIPARAMBA AMSOM AND DESOM, THALIPARAMBA TALUK, KANNUR DISTRICT.

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BY ADVS.SRI.T.REMESH BABU

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SMT.C.K.SREEJA

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RESPONDENTS/RESPONDENTS/PETITIONERS:

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1 CHERIYAKANDIKKAL ILLIKKAL SAHIDA

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AGED 50 YEARS

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D/O. LATE ILIKKALATH AYISHAKUNHI, NO EMPLOYMENT, MAJESTIC VILLA, THALIPARAMBA AMSOM, DESOM, MAANNA, THALIPARAMBA TALUK. 670 141

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2 CHERIYAKANDIKKAL ILLIKKAL SAYYIDA, AGED 36 YEARS

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D/O. LATE ILIKKALATH AYISHAKUNHI, NO EMPLOYMENT, SHAHIDA MANZIL, THALIPARAMBA AMSOM, DESOM, MAANNA, THALIPARAMBA TALUK. -670 141

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3 CHERIYAKANDIKKAL ILLIKKAL SAJITHA, AGED 26 YEARS D/O. LATE ILIKKALATH AYISHAKUNHI, NO EMPLOYMENT, SHAHIDA MANZIL, THALIPARAMBA AMSOM, DESOM, MAANNA, THALIPARAMBA TALUK. -670 141

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BY ADV. SRI.K.R.AVINASH (KUNNATH)

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RCRev..No. 376 of 2018

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O R D E R

K.HARILAL, J.

The revision petitioner is the tenant against whom an order of eviction has been passed concurrently by the courts below under Section 11(3) of the Kerala Buildings (Lease

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and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). [The parties are referred to as in the Rent Control Petition].

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2. According to the 1^st petitioner, her daughter by name 'Samsadath' is an unemployed woman and she wants to start a shop for sale of churidar materials. Thus, the petitioners bona fide require the petition schedule building for

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starting a churidar shop for the 1^st

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petitioner's daughter, who is a dependent on them. Neither the petitioners nor the

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RCRev..No. 376 of 2018

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dependent have any other vacant and suitable rooms of their own in their possession to start the proposed business. But, several other vacant rooms are available in the locality to shift the business of the respondent/tenant from the tenanted premises and he is not depending upon the income from the business in the tenanted premises. With the aforesaid averments, the petitioners preferred rent control petition with a prayer to grant an order of eviction under Section 11(3) of the Act.

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3. The respondent/tenant resisted the claim for eviction under Section 11(3) of the Act, contending that the need projected in the

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rent control petition is not bona fide. According to the respondent/tenant, the petitioners as well as the dependent have

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RCRev..No. 376 of 2018

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several other buildings of their own in their possession, to start the proposed business. More specifically, it is contended that room Nos.1185, 1186 and 1187 are vacant buildings, which stands still in the possession of the petitioners/landlords. So also, it is contended that room Nos.292, 295 and 298 are also presently vacant. Further, he contended that he is entitled to get protection under the second proviso to Section 11(3) of the Act, as he is mainly depending upon the income from the tenanted premises and no other vacant shop rooms are available in the locality.

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4. On the aforesaid pleadings, both parties adduced evidence and after considering

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the evidence on record, the courts below concurrently found that the need projected is bona fide, the claim for eviction is not barred

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RCRev..No. 376 of 2018

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by the first proviso to Section 11(3) of the Act and the respondent/tenant is not entitled to get protection under the second proviso to Section 11(3) of the Act. The legality and propriety of the aforesaid findings, whereby the courts below concurrently granted an order of eviction under Section 11(3) of the Act, are challenged in this revision petition.

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5. Heard the learned counsel for the revision petitioner.

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6. The learned counsel for the revision petitioner/tenant mainly contended that the

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courts below have miserably failed to appreciate the evidence on record available under the first proviso to Section 11(3) of the Act in its correct perspective. According to the learned counsel, in the counter-statement

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itself, the tenant has pointed out six shop

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RCRev..No. 376 of 2018

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room, which stands vacant at the time of filing of the rent control petition and he has taken commission, to ascertain the vacancy position of those shop rooms and the Commissioner has reported the vacancy position in Ext.C1 report. But, the courts below have failed to consider the commission report in its correct perspective. The courts below ought to have found that the shop rooms were not actually occupied for any kind of business at the time of inspection of the Commissioner. The learned counsel for the revision petitioner/tenant urged for re-appreciating the evidence on record under the first proviso to section 11(3) of the Act, in exercise of the revisional jurisdiction.

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7. We have meticulously gone through the

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concurrent findings of the courts below under

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the first proviso to Section 11(3) of the Act. Going by the impugned judgment passed by the Rent Control Appellate Authority, it could be seen that in paragraph Nos. 10 to 12, the Appellate Authority has elaborately considered the evidence on record under the first proviso to Section 11(3) of the Act. In the counterstatement, the respondent/ tenant has specifically pointed out that room Nos.1185, 1186, 1187, 292, 295 and 298 are still in the possession of the petitioners/landlords and they are vacant rooms. Further, it is contended that room Nos. 1185, 1186 and 1187 were obtained in R.C.P. Nos.25 of 1996, 26 of 1996 and 58 of 1996 and those rent control petitions were filed on bona fide need and order of eviction had been passed under Section

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11(3) of the Act. But, those rooms were not

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RCRev..No. 376 of 2018

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used or occupied by the petitioners/landlords

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contrary to the order passed therein.

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8. Going by paragraph No.10 of the judgment of the Rent Control Appellate Authority, we find that in Ext.C1 report, the Advocate Commissioner has inspected room Nos.1185, 1186, 1187, 292, 295 and 298 and specifically reported that those rooms were occupied by various tenants. No vacant room was found by the Commissioner and the rooms pointed out by the respondent/tenant in the counter-statement were found occupied by various tenants. After analysing the report, the courts below concurrently found that report is in full conformity with the oral evidence of PWs.1 and 2. The court further observed that the Advocate Commission has reported about each one of the rooms owned by the petitioners/

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landlords and there were no use worthy rooms in vacant possession of the petitioners or the dependent. Further, the court observed that the petitioners/landlords have produced rent deeds of all those rooms and for some of the rooms as there was no kachit, they produced the licence for the business conducted therein. The extract of Building tax assessment registers were also produced. In the absence of any evidence to prove vacant rooms in the possession of the petitioners/landlords, the courts below are justified in finding that the claim for eviction is not barred by the first proviso to Section 11(3)of the Act.

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9. Moreover, whether there is any vacant room in the possession of the landlords is a fact in issue and this Court is not inclined to

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re-appreciate the said evidence under the first

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proviso to Section 11(3) of the Act, unless any kind of illegality or impropriety or perversity is pointed out in the appreciation of evidence? We do not find any kind of perversity in the appreciation of evidence available under the first proviso to Section 11(3) of the Act. No other point has been raised in this revision petition.

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10. In the above analysis, we find that there is no illegality or impropriety in the findings, whereby the courts below concurrently found that the claim for eviction is not barred by the first proviso to Section 11(3) of the Act. Consequently, this revision petition will stand dismissed.

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11. The learned counsel for the revision petitioner seeks time to vacate the tenanted premises. The learned counsel for the revision

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petitioner prayed for one year time to vacate the tenanted premises.

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12. Having regard to the facts and circumstances of the case, the revision petitioner is given eight months time from today to vacate the tenanted premises on the

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following conditions:

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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 eight months, from today.

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(ii)The respondent/tenant shall deposit the entire arrears 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

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any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioners/landlords 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

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Applications will stand closed.

Sd/-

K.HARILAL JUDGE

Sd/-

ANNIE JOHN

JUDGE

DST

//True Copy//

P.A. TO Judge

Kuzhikkattuparambil Venukrishnan v. Cheriyakandikkal Illikkal Sahida

Case brief

What is this about?

What did the court decide?

Kuzhikkattuparambil Venukrishnan v. Cheriyakandikkal Illikkal Sahida

Case brief

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What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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