Dismissed

P.P.Antony, v. Mymoona

Kerala HC10 Jan 2019RCRev./391/2018

Case brief

AI extract

What is this about?

The High Court dismissed the revision petition challenging an eviction order. The court upheld the lower courts' finding that the landlord's need for premises is bona fide, noting a homeopathic clinic operates nearby. The tenant failed to prove the landlord possesses other vacant buildings. Eviction allowed with a 10-month timeline.

What did the court decide?

Eviction order confirmed; tenant granted ten months to vacate premises upon depositing arrears and filing an affidavit of undertaking.

P.P.Antony, Vs Mymoona — 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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THURSDAY ,THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940

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RCRev..No. 391 of 2018

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AGAINST THE JUDGMENT IN RCA 45/2016 of II ADDL.DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY,ERNAKULAM DATED 24-07-2018

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AGAINST THE ORDER IN RCP 135/2014 of III ADDL.MUNSIFF COURT, ERNAKULAM (RENT CONTROL COURT) DATED 26-02-2016

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REVISION PETITIONER/APPELLANT/RESPONDENT:

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P.P.ANTONY, AGED 75 YEARS S/O.POULO, DOOR NO.37/1015, COCHIN LAZE HOUSE, MATHER BAZAAR, BROADWAY, ERNAKULAM DISTRICT.

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BY ADVS. SRI.VIJU ABRAHAM SMT.ROSHNI MANUEL SRI.ALBERT V.JOHN

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RESPONDENT/RESPONDENT/PETITIONER :

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MYMOONA,

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AGED 60 YEARS, W/O.MOHAMMED ILLYAS, 1A LINK MANOR, OLD RAILWAY STATION ROAD, ERNAKULAM NORTH, COCHIN- 18.

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BY ADVS.

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SMT.C.G.ARUNDHATHI SRI.ABRAHAM K.JOHN

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RCRev..No. 391 of 2018

ORDER

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 Building (Lease and Rent Control) act, 1965. According to the respondentlandlord-petitioner, her eldest son passed MBBS in 2012 and he is unemployed. Now he is attending coaching classes for medical post graduation course and he is depending on the petitioner for his employment and livelihood. The petitioner bona fide needs the petition schedule building for her son, who is a dependant on her to start an allopathic clinic to eke-out income for his livelihood. The need of the petitioner's son is

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RCRev..No. 391 of 2018

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urgent and pressing. Neither the petitioner nor his

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son has any other vacant building of their own in their possession to start a clinic. The revision petitioner/respondent/tenant is not depending on the income derived from the business carried on in the petition schedule building for his livelihood and several other vacant buildings are available in the locality for him to shift the business from the tenanted premises. With the aforesaid averments, respondent/landlord/petitioner prayed for an order of eviction under Section 11(3) of the Act.

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The revision petitioner/respondent/tenant resisted the claim for eviction contending that the need projected is not bona fide and it is a ruse for eviction only. It is further contended that the petitioner's son is attending coaching classes for

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RCRev..No. 391 of 2018

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post graduation, so he does not require the

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petition schedule building for the next three years. The petition schedule building is not suitable for starting an allopathic clinic as it is situated in a busy crowded bazaar and there is no proper access to the building. Even if the petitioner's son wants to start medical practice, they have other building for

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the said The revision purpose.

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petitioner/respondent/tenant is depending on the

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income from the business conducted in the tenanted premises and no other vacant buildings are available in the locality to shift his business.

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With the aforesaid contentions, revision petitioner/respondent/tenant prayed for dismissal of the rent control petition.

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After considering the evidence on record,

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RCRev..No. 391 of 2018

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the court below concurrently found that the need

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projected is bona fide , the claim for eviction is not

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barred by first proviso and the revision

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petitioner/respondent/tenant is not entitled to get protection under second proviso to Section 11(3) of

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the Act. The legality and propriety of the aforesaid

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findings have come up in revision before us.

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Heard the learned counsel for the revision

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petitioner/respondent/tenant.

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The learned counsel for the revision

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petitioner/respondent/tenant vehemently contended that courts below have failed to

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appreciate the evidence on record on the bona fide need in its correct perspective. According to the

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him, it is impossible to start an allopathic clinic in a

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busy market having no comfortable road access.

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RCRev..No. 391 of 2018

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But the courts below have filed to appreciate the

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lack of suitability and convenience of the building to start an allopathic clinic. Secondly, it is contended that by Ext.B4 settlement deed it has come out in evidence that the petition schedule building is the part of a larger building, which has been set apart to the share of the respondentlandlord-petitioner under the same document and from the commission report it stands established that those buildings are lying locked without any kind of occupation. But the courts below have failed to appreciate the availability of other buildings in the possession of the petitioner in its correct perspective.

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In view of the argument across the bar,

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the first question to be considered is whether there

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RCRev..No. 391 of 2018

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is any perversity in the appreciation of evidence on

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bona fides of the need. Admittedly, the respondent/landlord/petitioner's son is an MBBS graduate seeking admission for post graduation. Merely on the reason that he is seeking admission for PG it cannot be held that he cannot start practise and he shall remain idle till he gets admission for PG. It is true that the petition schedule shop room is situated in a busy market where several wholesale business are located. The court below has rightly observed that the petition schedule building is situated in a busy market and for that reason and it cannot be held that no allopathic clinic could be started in such a building. Going by the commission report, it could be seen that the commissioner reported that running an

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RCRev..No. 391 of 2018

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allopathic clinic in such a small space is possible,

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though it is not an ideal place for starting a well established allopathic clinic with all kinds of

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facilities. It is pertinent to note that in commission report, the commissioner pointed out that a well known homeo clinic is also situated very near to the petition schedule shop room in the same area. In the above context, it is to be borne in mind that the tenant cannot dictate the term of suitability and convenience of the landlord for starting a new

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business or trade.

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In the above view, we are of the opinion

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that the courts below have rightly appreciated the evidence on record on the need and held that the

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need projected in the petition is bona fide. We do

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not find any reason to take a different view

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RCRev..No. 391 of 2018

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particularly, when re-appreciation on factual findings are impermissible, unless the findings of the court below are perverse. We do not find any perversity in the appreciation of the evidence of bona fide need. Hence the first point argued by the learned counsel for the petitioner would stand rejected.

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Coming to the second point, going by the counter statement filed by the revision petitioner/respondent/tenant, it could be seen that the respondent has not identified and pointed out any other vacant buildings allegedly in possession of the landlord. There is a vague averment only to the effect that the respondent/landlord/petitioner

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has other buildings in her possession to start the proposed clinic, for her son. It is true that the

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RCRev..No. 391 of 2018

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revision petitioner/respondent/tenant has

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produced Ext.B4 settlement deed wherein some buildings other than the petition schedule shop

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room is also allotted to the

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respondent/landlord/petitioner. What are the said buildings? What are the places, where those buildings are situated? When the

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was cross respondent/landlord/petitioner

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examined in evidence, she emphatically denied the ownership and possession of any building other than the petition schedule shop room under Ext.B4. But no further evidence was adduced to prove that the denial of the ownership of other

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buildings is false and the

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respondent/landlord/petitioner has some buildings other than the petition schedule shop room in the

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RCRev..No. 391 of 2018

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same locality. More importantly, when the petitioner was cross examined she was not

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confronted with Ext.B4 to establish the point that

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some buildings other than the petition schedule shop room was also allotted to her under Ext.B4. Going by the commission report, it could be seen that some other shop rooms near the petition schedule building are found locked. But absolutely there is no evidence to prove that the shop rooms referred to in Ext.B4 are the shop rooms which were found locked in the commission report and those shop rooms are owned and possessed by the landlord. In the absence of any material to connect the availability of other buildings under Ext.B4 with a shop room referred to in the commission report it

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cannot be held that the respondent-landlord-

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RCRev..No. 391 of 2018

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petitioner has other buildings under Ext.B4, in her

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possession. Thus, the revision petitioner has miserably failed to prove that the respondent/landlord/petitioner has any building

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other than the petition schedule shop room in her possession to start the proposed clinic for her son. In the above view, we reject the second point argued by the learned counsel for the revision petitioner.

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In the above analysis, we do not find any

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kind of illegality or impropriety in the finding whereby the court below granted an order of eviction under Section 11(3) and 11(2) (b) of the Act.

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Hence, this revision fails and it is dismissed accordingly.

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Having regard to the nature of business, which

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RCRev..No. 391 of 2018

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is being conducted in the tenanted premises, the

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revision petitioner is given ten months' time to vacate the petition schedule building, on the following conditions:

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(1)The revision petitioner/tenant shall file an

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affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as

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the case may be, expressing an undertaking that he will vacate the petition schedule shop room within ten months from today.

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(2) The revision petitioner/tenant shall deposit

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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

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continue to pay the rent without default.

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(3) In the event of failure to comply with any of

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RCRev..No. 391 of 2018

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the conditions stated above, the time granted

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to vacate the premises will stand automatically vacated and the respondent /landlord will be at liberty to proceed with the execution of the eviction order.

Sd/-

K.HARILAL, JUDGE

Sd/-

ANNIE JOHN, JUDGE

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AMV/11/01/2019

P.P.Antony, v. Mymoona

Case brief

What is this about?

What did the court decide?

P.P.Antony, v. Mymoona

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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