Dismissed

P.v.Alikoya, v. M.Imbichi

Kerala HC5 Dec 2019RCRev./275/2019

Case brief

AI extract

What is this about?

This revision petition assailed rejection of a preliminary objection questioning maintainability of a rent control petition seeking eviction and fair rent fixation. The High Court held the Supreme Court in Mohammad Ahmad was distinguishable as fair rent remained unfixed, concurrent findings of lower courts were upheld, and the revision was dismissed.

What did the court decide?

Revision petition dismissed; Rent Control Court to expeditiously dispose of R.C.P No.139/2014.

P.v.Alikoya, Vs M.Imbichi — Landlord and Tenant | Kerala HC (2019)

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RCR 275 OF 2019

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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 C.S.DIAS

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THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941

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RCRev..No.275 OF 2019

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AGAINST THE ORDER/JUDGMENT IN RCA 287/2016 DATED 15-07-2017 OF THE RENT CONTROL APPELLATE AUTHORITY ( IST ADDITIONAL DISTRICT COURT), KOZHIKODE

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AGAINST THE ORDER/JUDGMENT IN RCP 139/2014 DATED 10-11-2016 OF THE RENT CONTROL COURT (IST ADDITIONAL MUNSIFF COURT) ,KOZHIKODE

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REVISION PETITIONER/S:

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P.V.ALIKOYA,AGED 75 YEARS,S/O. MAMMATH, C/O. M/S. P.V TRADERS, MERCHANT AND COMMISSION AGENTS 9/346, VALIYANGADI KOZHIKODE DT 673 001

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA

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RESPONDENT/S:

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1 M.IMBICHI,AGED 77 YEARS,W/O. LATE P.K MAMUKOYA, 23/1719 ASHIRVADU, PANNIYANGARA AMSOM DESOM, KALLAI, KOZHIKODE TALUK 678 683

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2 M. ABDUL KHADAR,AGED 61, S/O. LATE P.K MAMUKOYA, 23/1719 ASHIRVADU, PANNIYANGARA AMSOM DESOM, KALLAI, KOZHIKODE TALUK 678 683 REP BY MUKHTYAR AGENT P. ABOOBAKER KOYA, AGED 61 YEARS, S/O. P.P HASSAN KOYA, 23/1640 B, RISAL TIRUVANNUR ROAD, KOZHIKODE 673 029

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3 M. ABDULLA KOYA,59 YEARS, REP BY MUKHTYAR AGENT P. ABOOBAKER KOYA, AGED 61 YEARS, S/O. P.P HASSAN KOYA 23/1640B, RISAL, THIRUVANNUR ROAD, KOZHIKODE 673 029

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4 M. MUHAMMED,S/O. LATE P.K MAMUKOYA, 23/1719 ASHIRVADU , PANNIYANGARA AMSOM DESOM, KALLAI, KOZHIKODE TALUK 678 683

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5 SULIKHA,AGED 53 YEARS, D/O. P.K MAMUKOYA, 23/1640B, RISAL, TIRUVANNUR ROAD, KOZHIKODE 673 029

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6 C.K.V FAZAL ALI,S/O. MOOSAKOYA, M/S. P.V TRADERS., MERCHANT AND COMMISSION AGENTS, 9/346, VALIYANGADI KOZHIKODE DT 673 001

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R1-5 BY ADV. SRI.JACOB ABRAHAM

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

RCR 275 OF 2019

ORDER

C.S.DIAS, J.

The revision petitioner is the first respondent in R.C.P No.139/2014 on the files of the Rent Control Court, Kozhikode. The respondents 1 to 5 in this R.C.R are the supplementary respondents/legal representatives of the deceased landlord, and 6^th respondent is the 2^nd respondent in the rent control petition.

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The revision petitioner raised a preliminary objection before the Rent Control Court, questioning the maintainability of the rent control petition relying on the decision of the Hon'ble Supreme Court in Mohammad Ahmad vs Atma Ram Chauhan (2011 KHC 4505).

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The revision petitioner contended that a rent control petition seeking an order of eviction and an order for fixation of fair rent cannot go hand in

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RCR 275 OF 2019

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hand and is hence not maintainable.

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The Rent Control Court and the Rent

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Control Appellate Authority concurrently rejected the preliminary objection on the ground that the ratio decidendi in Mohammad Ahmad (supra) was not applicable to the facts of the case.

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Assailing the concurrent findings on the above preliminary issue, the present revision petition is filed.

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Heard Smt.M.Shajna, the learned counsel for the revision petitioner and Sri.Jacob Abraham, the learned counsel for the respondents.

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The decision in Mohammad Ahmad

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(supra) lays down the parameters for fixation of fair rent. In clause (v) of paragraph 21 in the judgment, the Supreme Court has declared that if present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant, at least for a period of 5 years.

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RCR 275 OF 2019

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Thus, for a period of 5 years the tenant will enjoy an immunity from being evicted from the premises.

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In the case on hand, it is seen that the landlord had sought for eviction of the tenanted premises under Sec. 11 (2) (b) and Sec.11(4) (ii), and also for fixation of fair rent as per Sec.5 (1) of the Kerala Buildings (Lease and Rent Control) Act.

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The crux of the issue is that fair rent is sought to be fixed towards arrears of rent payable by the tenant to the landlord, and that fair rent has not been fixed till date. Therefore, Mohammad Ahamd (supra) is not applicable to the facts of the case. Whether a prayer for eviction and fixation of future fair rent are reconcilable causes of action, is to be decided by the Rent Control Court. The concurrent findings on the preliminary issue passed by the Rent Control Court as well as the Rent Control Appellate Authority rejecting the preliminary objection raised by the petitioner are hereby upheld and confirmed.

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We do not find any merits in the revision

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RCR 275 OF 2019

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petition. Hence the revision petition is dismissed. The Rent Control Court shall, considering the fact that the R.C.P is of the year 2014, expeditiously dispose of R.C.P No.139/2014.

Sd/-

K.HARILAL

JUDGE

Sd/-

C.S.DIAS

sks/5.12.2019