Remanded

Thazhevazhayil Raghavan Nair v. P.M.Nafeesa Basheer

Kerala HC18 Jul 2019RCRev./39/2018

Case brief

AI extract

What is this about?

This revision petition challenged eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The High Court set aside lower orders, holding that structural stability and the nature of repairs needed were unclear. The matter was remanded for evidence regarding the building's condition to ascertain the bonafides of the eviction claim.

What did the court decide?

The impugned orders are set aside. The matter is remitted to the Rent Control Court to collect evidence regarding the structural stability of the building.

Thazhevazhayil Raghavan Nair Vs P.M.Nafeesa Basheer — 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 A.HARIPRASAD

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THE HONOURABLE MRS. JUSTICE SHIRCY V.

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THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941

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RCRev..No.39 of 2018

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AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY/2ND ADDITIONAL DISTRICT JUDGE, KOZHIKODE DATED 2110-2017 IN RCA 208/2016.

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AGAINST THE ORDER DATED 30-06-2016 OF THE RENT CONTROL COURT/ADDL.MUNSIFF - I, KOZHIKODE IN RCP 95/2015.

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REVISION PETITIONER/APPELLANT/RESPONDENT :

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THAZHEVAZHAYIL RAGHAVAN NAIR, AGED 88 YEARS, S/O. UNNI NAIR, EDAKULAM P.O., KOILANDY TALUK.

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BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN

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RESPONDENT/RESPONDENT/PETITIONER :

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P.M.NAFEESA BASHEER, AGED 58 YEARS, W/O. BASHEER, EXHIBITION ROAD, PUTHIYANGADI AMDOM DESOM, WEST HILL P.O., KOZHIKODE-05.

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BY ADVS. SRI.V.V.SURENDRAN(CAVEATOR ) SRI.P.A.HARISH SRI.V.V.SURENDRAN SRI.V.V.SURENDRANCAVEATOR

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R.C.R No.39 of 2018 2

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A.HARIPRASAD & SHIRCY.V, J J.

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R.C.R No.39 of 2018

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Dated this the 18th day of July, 2019

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O R D E R

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A.HARIPRASAD, J

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Heard the learned counsel for the revision petitioner and respondent.

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Revision petitioner is the tenant, who suffered an order of

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eviction under Section 11(3) of the Kerala Buildings (Lease and Rent

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Control) Act, 1965 (in short 'the Act'). He unsuccessfully challenged the

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eviction order before the Rent Control Appellate Authority. Being dissatisfied with the concurrent findings against him, the tenant has

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preferred this revision.

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R.C.R No.39 of 2018 3

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Brief facts, relevant for disposal of the revision, are as follows :

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Petition schedule building along with other rooms originally

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belonged to the respondent's father. The revision petitioner took the

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building on lease from him. Thereafter, the petitioner obtained right in

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respect of the building by virtue of a partition deed. Respondent filed R.C.P

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No.102 of 2005 before the Rent Control Court, Kozhikode, seeking eviction of the revision petitioner. The petition was allowed against which the revision petitioner preferred R.C.A No.133 of 2006 before the Rent Control

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Appellate Authority, Kozhikode. Against the dismissal of a ground under Section 11(3) of the Act, the landlady preferred R.C.R No.98 of 2008 before

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this Court. This Court as per order dated 22-03-2011, considered the rival contentions and observed thus :

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“ 5. We have given our anxious consideration to

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the submissions addressed by Mr.Mohammed

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Nias and Mr.Ananthakrishnan. We must notice

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R.C.R No.39 of 2018 4

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immediately that we do not find much infirmity about the judgment of the Rent Control Appellate Authority dismissing the R.C.P. in which the only eviction ground invoked was the ground under sub-section (3) of Section 11. We also feel, as the Appellate Authority appears to have felt that the apposite eviction ground which may be available to the landlady is the ground under Section 11(4) (iv). But as rightly pointed out by Mr.Ananthakrishnan, before eviction order is passed under Section 11(4)(iv), the Rent Control Court has to be satisfied about the existence of the statutory prerequisite such as condition of the building, availability of a building plan and licence, the capacity of the landlord to carry out the reconstruction and the profitability of the proposal from the landlord's point of view. We also find merit in the submission of Mr.Ananthakrishnan that basic pleadings are

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R.C.R No.39 of 2018 5

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necessary before eviction order is passed under Section 11(4)(iv). Having anxiously considered the entirety of the facts and circumstances which attended on this case and the submissions addressed at RCR 98/08 5 the Bar, we feel that this is a case where the landlady should initiate fresh proceedings for evicting the respondents by invoking the eviction ground under Section 11(4) (iv). Of course, the condition of the building warrants reconstruction as is clear from Ext.C1 commission report. But the R.C.P. lacks proper pleadings. As we have already noticed, before eviction order is passed under Section 11(4)(iv), the Rent Control Court has to be satisfied on evidence regarding availability of a building plan and licence and the capacity of the landlady to carry out the reconstruction. The same is lacking in this case. We are, therefore, inclined to permit the landlady to initiate fresh proceedings for

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R.C.R No.39 of 2018 6

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eviction on the ground of reconstruction. "

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Based on the above findings, the respondent filed R.C.P No.72 of

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2011, seeking eviction of the revision petitioner under Sections 11(3) and 11(4)(iv) of the Act. It is an admitted case that the petition was not pursued and it was dismissed for non-prosecution. Thereafter, the present application is filed seeking eviction under Section 11(3) of the Act, alleging that the respondent's son, who is a Civil Engineer, wanted to start a consultancy service in the petition schedule room and the adjacent room

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put together by effecting necessary repairs and renovation. It is also contended that the respondent or her son has no other room in their possession for starting the business.

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The revision petitioner/respondent in the eviction petition filed

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a counter statement contending that the claim in the petition is only a ruse

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to evict him and the need put forward is not bonafide. The revision

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petitioner is living out of the income derived from the business of tyre

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R.C.R No.39 of 2018 7

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retreading conducted in the petition schedule building. No other suitable building is available in the locality. It is contended by him that the findings rendered by this Court in R.C.R No.98 of 2008 will show that the claim of the respondent is not bonafide.

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The Rent Control Court examined three witnesses on the side of

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the respondent and one on the side of the revision petitioner. Exts.A1 to A4 series and Exts.B1 to B6 were considered. The authorities below on marshalling the evidence produced before it found that this is a fit case to allow eviction under Section 11(3) of the Act.

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It is seen from the impugned orders passed by the authorities

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below that much has been argued before them and considered by the authorities in respect of the effect of Section 15 of the Act in this case. At the

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outset, we may say that Section 15 of the Act has no application to this case

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for the reason that the bonafide need claimed in R.C.P No.102 of 2005 was

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R.C.R No.39 of 2018 8

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for the respondent herself, whereas in the present petition the bonafide

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need put forward is that of for her son. For this sole reason, Section 15 of

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the Act has no application.

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Learned counsel for the revision petitioner strongly contended

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that the stand taken by the respondent in the previous litigation that the

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building is in a dilapidated condition and it needs to be pulled down for constructing another building in its place, should be taken to have cut at the

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root of the bonafides of the claim. This Court in R.C.R No.98 of 2008 has

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observed as above and consequent to that the respondent filed R.C.P No.72

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of 2011 before the Rent Control Court. Ext.B5 is the copy of the eviction

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petition. Learned counsel for the revision petitioner drew our attention to

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Ext.B5, wherein it is stated by the respondent that the building is in such a

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bad shape, which must be pulled down and a new building has to be

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constructed in its place. Pleadings would clearly show that the building in

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R.C.R No.39 of 2018 9

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question is beyond repair. However in the present case, the stand taken by

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the eviction petitioner is that the building can be retained with minor repair

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and renovation works.

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Learned counsel for the respondent invited our attention to

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Rule 10 of the Kerala Municipality Building Rules, to contend that the intended repairs can be done without obtaining a plan and permit from the Corporation as it does not affect the structural stability of the building, what

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exactly the repairs and renovations required to be done is not pleaded. It is

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curious to note that when the landlady seeks eviction on the ground of bonafide need, the tenant would contend that the building is not suitable for

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accommodating the landlady's intended business as it is an old one and when the landlady seeks eviction saying that the building is very old and dilapidated, the tenant would take up a position that the building is strong

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and need not be pulled down. However, this Court is unable to know the

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R.C.R No.39 of 2018 10

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present condition of the building in order to arrive at a correct conclusion

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regarding the bonafides of the respondent/eviction petitioner. It has to be ascertained whether the building can be retained in its present condition

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and repairs and renovation can be effected to start a business propounded by the eviction petitioner. Although, a Commission was taken in R.C.P No.72

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of 2011 and she was examined as PW3, we find no material to infer the

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strength of the building discernible from her report.

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Learned counsel for the revision petitioner contended that the

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respondent has not produced any material to show that the Corporation of Kozhikode refused her permission to construct a new building in the place

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of the present building. Similarly, there is no material available before this Court to find the present building is strong enough to withstand repairs and

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renovation for accommodating the intended business by the respondent's

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son. This assumes importance in the light of the pleadings in Ext.B5 and

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R.C.R No.39 of 2018 11

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Ext.B4 order passed by this Court in R.C.R No.98 of 2008. Therefore, we are

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of the view that the matter requires a remand for collecting better evidence to prove the structural stability of the existing building, which will have a direct bearing on the bonafides of the need set up by the respondent. It is

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made clear that the bar under Section 15 of the Act does not arise in this case and it need not be reconsidered. Both parties are permitted to adduce oral and documentary evidence to support their respective plea.

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In the result, the impugned orders passed by the authorities below are set aside. The matter is remitted back to the Rent Control Court for affording the parties an opportunity to prove the structural stability or otherwise of

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the building in question, which will have a direct bearing on the bonafides. It is made clear that the parties are free to agitate on the genuineness of the

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bonafide need by adducing evidence. It is also made clear that the protection claimable under the second proviso need not be further

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R.C.R No.39 of 2018 12

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considered.

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Parties shall appear before the Rent Control Court on 12th August,

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The Rent Control Court shall dispose of the matter within four

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months from the date of appearance.

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All pending interlocutory applications will stand closed.

A. HARIPRASAD,

JUDGE.

SHIRCY.V,

JUDGE

amk

Thazhevazhayil Raghavan Nair v. P.M.Nafeesa Basheer

Case brief

What is this about?

What did the court decide?

Thazhevazhayil Raghavan Nair v. P.M.Nafeesa Basheer

Case brief

What is this about?

What did the court decide?

What the court decided

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