Dismissed

Kalathil Kundancheri Janaki, v. v.K.Fathima

Kerala HC25 Feb 2019RCRev./38/2019

Case brief

AI extract

What is this about?

This revision petition challenged eviction orders under the Kerala Building (Lease and Rent Control) Act. The High Court held that courts below did not err in finding bona fide need, rejecting tenant protection under Section 11(17) for successors, and upholding the eviction order with conditions granting seven months to vacate. Dismissed.

What did the court decide?

Eviction order under Sections 11(3) and 11(4)(i) upheld; revision dismissed. Petitioner granted seven months to vacate conditioned upon filing an undertaking affidavit and depositing arrears.

Kalathil Kundancheri Janaki, Vs v.K.Fathima — Landlord and Tenant | Kerala HC (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 MRS. JUSTICE ANNIE JOHN

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MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940

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RCRev..No. 38 of 2019

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(AGAINST THE JUDGMENT DATED 14.08.2018 IN R.C.A NO.39/2017 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT-II), THALASSERY AND ORDER DATED 13/12/2016 IN R.C.P.NO.76/2008 OF RENT CONTROL COURT, THALASSERY)

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REVISION PETITIONERS/APPELLANTS/RESPONDENTS:

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1 KALATHIL KUNDANCHERI JANAKI, AGED 81 YEARS,

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W/O LATE KAPPARAMBATH KUNHIKANNAN, KAPPARAMBATH HOUSE, THALASSERY AMSOM, VADIKKAKAM DESOM, P.O.THALASSERY, KANNUR DISTRICT

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2 KARUVATTAYIL CHEMBRAMBATH MOHANDAS, AGED 61 YEARS, S/O BALAN,

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PRABATH GUEST HOUSE, THANA, KANNUR.

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BY ADV. SRI.C.P.PEETHAMBARAN

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RESPONDENTS/RESPONDENTS/PETITIONERS 2 TO 7:

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1 V.K.FATHIMA,AGED 67 YEARS, W/O ABOOBACKER, KANDOTH HOUSE, NEAR STADIUM, THALASSERY-670 101, KANNUR DISTRICT

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2 V.K.AMINA HAFSATH, AGED 50 YEARS, D/O ABOOBACKER, KANDOTH HOUSE, NEAR STADIUM, THALASSERY-670 101, KANNUR DISTRICT

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3 V.K.SHAHINA, AGED 48 YEARS D/O ABOOBACKER, KANDOTH HOUSE, NEAR STADIUM, THALASSERY-670 101, KANNUR DISTRICT

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4 V.K.MUHAMMED SAJID, AGED 47 YEARS S/O ABOOBACKER, KANDOTH HOUSE, NEAR STADIUM, THALASSERY-670 101, KANNUR DISTRICT

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5 V.K.ABIDA, AGED 42 YEARS
D/O ABOOBACKER, KANDOTH HOUSE,
NEAR STADIUM, THALASSERY-670 101,
KANNUR DISTRICT

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6	V.K.JAHANARA, AGED 39 YEARS
	D/O ABOOBACKER, KANDOTH HOUSE,
	NEAR STADIUM, THALASSERY-670 101,
	KANNUR DISTRICT

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RCRev..No. 38 of 2019

ORDER

Harilal, J

The revision petitioners are the tenant against whom an order of eviction has been passed by the courts below under Section 11(3) and 11(4)(i) of the Kerala Building (Lease and Rent Control) Act, 1965 [for short, the 'Act']. (Parties are referred to as in the rent control petition). During the pendency of the rent control petition, the original petitioner Aboobacker died. Therefore, his legal heirs were impleaded as supplemental petitioners 2 to 7 and got amended the rent control petition as per order in I.A.Nos.1408/2015 and 1409/2015 respectively. According to the averments in the rent control petition, the original petitioner pleaded that he bona fide requires the vacant possession of the tenanted premises to start a Beauty

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RCRev..No. 38 of 2019

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Parlour cum Embroidery work with a participation of his daughters Ameena, shahina, Sajid, Abida and Jahnara. According to him, the youngest daughter Jahnara and her husband are physically disabled persons and for securing their lives, an occupation have to be arranged to them and they have the financial capacity and ability to start the proposed business. The petitioner has no other vacant buildings of his own in his possession to start the proposed business. But several other buildings are available in the locality to shift the respondents' business from the tenanted premises. So he is entitled to get an order of eviction under Section

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11(3) of the Act. Further he contended that the respondent No.1 is not in station and respondent No.2 went abroad, thus the respondents are not conducting business in the plaint schedule shop room. They have

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subleased the tenanted premises to one Raheem, for

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higher consideration and rent. His address is not known to the petitioner; so he was not arrayed in the party array as respondent. According to him, Raheem is absolutely in possession and enjoyment of the tenanted premises. Though he had sent notice requiring termination of sublease, the respondent has not responded to the said demand. Therefore, he is entitled

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to get an order of eviction under Section 11(4)(i) also.

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After the death of the original petitioner, the

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supplemental petitioners amended the pleadings to the effect that they are the co-owners of the building and the bona fide need urged by the predecessor in the original petition still subsists and they are capable of conducting the business proposed by their deceased

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predecessor. The supplemental petitioners 3 and 6

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proposed to manage the business on behalf of all other petitioners.

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The respondents resisted the claim for

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eviction under both counts and contended that the

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need projected by the petitioners is not bona fide and it

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is a ruse for eviction only. According to them, they are entitled to get protection under Section 11(17) of the Act as the original tenancy has been commenced in the year

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Their predecessors were in possession of the tenanted premises from 1939 and they are also entitled

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to get protection under Section 11(17) of the Act. It is further contended that the supplemental petitioners have no previous experience in conducting the

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proposed business and also that they are married,

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settled and well placed. That apart there is no scope for

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a business of Beauty Parlour cum Embroidery in the petition schedule building as several other Beauty Parlors are located in the same locality. They denied the allegation that they have subleased the tenanted premises to one Raheem. According to them, the

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aforesaid Raheem is an employee, working in the shop occupied by them. Though the second respondent has went abroad, he returned from the gulf country and now he is also conducting the proposed business. They

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prayed for dismissal of the rent control petition.

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On the rival pleadings, both parties adduced

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evidence and after considering the evidence on record,

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the courts below concurrently found that the need projected is bona fide and the respondents/tenants are

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not entitled to get protection under the first limb of second proviso to Section 11(3) of the Act as the respondents have sub leased the tenanted premises to a third party as alleged by the petitioners. Further it was found that they are not entitled to get protection under Section 11(17) of the Act as they are the successors in interest only and the protection under Section 11(17) of the Act is available to the original tenant only. The legality and correctness of the aforesaid findings are assailed in this revision petition.

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Heard the learned counsel for the petitioners

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and the learned counsel for the respondents.

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The learned counsel for the revision

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petitioners/tenants advanced arguments emphatically contending that the courts below have failed to

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appreciate the evidence on record on bona fides of the

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need in its correct perspective. According to them, the findings of the courts below that the need is bona fide, is perverse warranting interference of this Court under revisional jurisdiction. So also it is contended that the original landlord himself has admitted that no other buildings are available in the locality to shift his business from the tenanted premises.

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First of all, we must remind ourselves that the limited scope and extent of revisional jurisdiction confined to the legality, propriety and regularity of the findings of the courts below only. The revisional court under Section 20 of the Act, cannot re-appreciate the factual findings, so as to arrive at a different finding, unless the findings of the courts below are perverse or

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vitiated by non-consideration of material evidence.

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Bearing the aforesaid proposition in mind, we have considered the arguments.

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The learned counsel for the revision petitioner advanced arguments emphatically challenging the findings on the factual issues. Therefore, the question to be considered in this revision is whether the concurrent findings of the courts below that the need projected is bona fide is perverse or not. According to the original pleadings, the deceased original petitioner pleaded that he bona fide required the vacant possession of the tenanted premises to start a beauty parlour with the participation of his four daughters. More specifically he pleaded that his youngest daughter and her husband are physically disabled persons and he

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wants to secure their lives by providing an occupation to them also. After the death of the original petitioner, the supplemental petitioners got impleaded themselves and they amended the pleadings contending that they are capable to conduct the business proposed by the deceased original petitioner and they are also in bona fide need of the petition schedule shop room for conducting the proposed business and the petitioners 3 and 6 have agreed to manage the business on behalf of all the other petitioners. Thus, we find that pleadings in the original petition as well as the amended petition would constitute the need for starting the proposed beauty parlour. More specifically, it is contended that the youngest daughter and her husband are physically disabled and all the supplemental petitioners jointly wants to provide an occupation to them also.

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In order to prove the said pleadings two

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daughters were examined as PWs2 and 3. They have testified the bona fides of the need in chief examination and the courts below specifically observed that nothing has been brought out in cross examination to discard the bona fides of the need spoken to by them in chief examination. The courts below placed reliance on the oral testimony of PWs2 and 3. We do not find any reason to take a different view in the absence of any material contrary to the observations made by the courts below. In the above view, we find that there is no perversity warranting interference with the findings of the courts below that the need projected is bona fide .

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Coming to the rejection of the claim for protection under Section 11(17) of the Act, we find that

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the appellate authority has considered the claim for

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protection under Section 11(17) of the Act in its correct perspective in view of the decision of this Court in A.M.Prabhakaran and Others v.Chithappa Sulaikabi

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[2007 (2) KLT 103] . We also endorse the findings of the court below in view of the aforesaid decision of this

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Court. Admittedly the respondents are successors in interest of the deceased original tenant. In view of the above decision, they are not entitled to get protection under Section 11(17) of the Act. Therefore, there is no reason to interfere with the findings, whereby the claim for eviction under Section 11(17) is rejected.

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As regards the protection under second proviso to Section 11(3) of the Act, the learned counsel

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for the revision petitioner/tenant contended that the

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landlord himself has admitted that the vacant buildings are not available in the locality. We are of the view that it is trite law that the burden of proof under the second proviso is on the tenant. It is for the tenant to prove the non availability of the vacant buildings in the locality for shifting their business. That apart, both limbs of the second proviso are conjunctive and the burden is heavy on the respondents/tenants to prove both the limbs of the second proviso. As regards the first limb, there is no evidence to prove that they are mainly depending on the income from the business in the tenanted premises. Therefore, even if the landlord/petitioners has admitted that vacant buildings are not available in the locality, that does not make any difference, so long as the first limb stands against the respondents/tenants. In the above view, we find that there is no perversity to

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interfere with the findings of the courts below that the

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respondents are not entitled to get protection under the second proviso also.

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In short there is no illegality or impropriety in the concurrent findings whereby the courts below granted an order of eviction under Sections 11(3) and 11(iv)(i) of the Act. Hence, this revision fails and it is dismissed accordingly.

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Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given seven months' time to vacate the petition schedule building, on the following conditions:

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(1)The revision petitioners/tenant shall file an affidavit,

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within two weeks from the date of receipt of a copy

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of this order, before the Execution Court or the Rent

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Control Court, as the case may be, expressing an

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RCRev..No. 38 of 2019

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undertaking that he will vacate the petition

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schedule shop room within ten months from today.

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(2) The revision petitioners/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent

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without default.

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

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All pending Interlocutory Applications will stand closed.

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K.HARILAL, JUDGE

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sd/- ANNIE JOHN, JUDGE

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AMV/07/03/2019

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RCRev..No. 38 of 2019

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Kalathil Kundancheri Janaki, v. v.K.Fathima

Case brief

What is this about?

What did the court decide?

Kalathil Kundancheri Janaki, v. v.K.Fathima

Case brief

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