Dismissed

Ulliveettil Ashraf v. Thavarayil Ummer

Kerala HC23 Nov 2022RCRev./175/2022

Case brief

AI extract

What is this about?

The High Court of Kerala reversed the lower court's eviction order against the sub-lessee under Section 11(4)(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Relying on an ex-parte commission report, the Court found the tenant was conducting meat business via an agent, not filing, depriving him of protection under the second proviso. The revision was dismissed, but the tenant was gr

What did the court decide?

Tenant granted six months to vacate the building with terms to surrender vacant possession and continue paying rent until then.

Ulliveettil Ashraf Vs Thavarayil Ummer — Kerala HC (2022) — LawSathi Research

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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.MUHAMED MUSTAQUE

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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WEDNESDAY, THE 23^RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944

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RCREV. NO. 175 OF 2022

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AGAINST THE JUDGMENT DATED 30/06.2022 IN RCA NO.8 OF 2019 OF DISTRICT COURT & SESSIONS COURT,THALASSERY CONFIRMING THE ORDER DATED 8/11/2018 IN RCP NO.67 OF 2016 OF MUNSIF COURT,

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KUTHUPARAMBA

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REVISION PETITIONER/APPELLANT/1ST RESPONDNET:

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ULLIVEETTIL ASHRAF, AGED 62 YEARS, S/O.ABDURAHIMAN, BUSINESS, KANDAMKUNNU AMSOM, KAITHERI DESOM, THALASSERY TALUK.

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BY ADVS. T.P.SAJID SHIFA LATHEEF MUHAMMED HAROON A.N.

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RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENT NO.2:

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1 THAVARAYIL UMMER, AGED 64 YEARS, S/O.ASSAINAR, RESIDING AT KUTHUPARAMBA AMSOM, NARAVOOR DESOM, THALASSERY TALUK, REPRESENTED THROUGH POWER OF ATTORNEY HOLDER, SHAMEENA.K.P, D/O.IBRAHIM, AGED 48 YEARS, SHEZA GHAR, NARAVOOR, KUTHUPARAMBA.P.O, THALASSERY TALUK,

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KANNUR-670 643.

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2 MUNEER.V, AGED 45 YEARS, S/O.KOYA, MOTTAMMAL HOUSE, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, THALASSERY TALUK-670 643.

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BY ADV P.SAJU

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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..2..

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RCREV. NO. 175 OF 2022

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J U D G M E N T

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A. Muhamed Mustaque, J

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The tenant has come up with this revision

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petition challenging the concurrent order of eviction under Section 11(3) and 11(4)(1) of the Kerala Buildings (Lease and Rent control) Act, 1965 (for short the “Act”). Section 11(3) of the Act is relating to bona fide needs of the landlord. Section 11(4)(1) of the Act provides the ground of sub lease.

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We issued notice before admission to the respondents. The respondents entered appearance.

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The learned counsel for the revision petitioner Sri. T.P Sajid would submit that the kachit (lease agreement) marked as Ext.A1 is dated 2.01.2003. Admittedly, it was executed through the power of attorney holder, who is the

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wife of the landlord namely, Ummer. As seen from the kachit, the power of attorney was executed

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RCREV. NO. 175 OF 2022

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..3..

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only on 7.10.2003. Therefore, it was impossible

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to execute such kachit. It is to be noted that the landlord specifically pleaded that kachit was

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executed on 2.01.2004. The said fact is not denied. The date shown in the kachit is only a mistake and further that the tenant has no case

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that Ummer is not the landlord. The next point argued by the learned counsel for the revision petitioner is that, in the mandatory notice for the purpose of terminating sub lease under Section 11(4)(1) of the Act, the landlord had to issue notice. But, the notice was sent by the wife of the landlord. Therefore, there is no mandatory notice. It is to be noted that it is through the wife of the landlord that the lease agreement was executed. The tenant very well

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knEW that the wife was acting as an agent based

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on the power of attorney executed by the landlord. It is to be noted that the tenant had

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never disputed the competency of the wife to

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RCREV. NO. 175 OF 2022

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..4..

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issue such notice either in the counter affidavit or in the reply notice.

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The learned counsel for the revision

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petitioner further argued that the landlord

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failed to plead the suitability of the building in his possession. The tenant had produced basic

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tax receipt showing that the landlord was in possession of the vacant building and therefore, without there being a pleading to the effect that the building is not suitable, the Rent Control Court ought to have disallowed the claim for

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eviction in the light of first proviso to Section 11 (3) of the Act.

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The first proviso the Section 11(3) of the

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Act states that the Rent Controller can decline

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order of eviction on the ground of bona fide need, if the landlord is found in possession of a suitable building. The landlord had to explain

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the suitability of the building in his

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possession. According to him, the suitable

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RCREV. NO. 175 OF 2022

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building pointed out by the tenant is the upstairs of the existing building. The landlord started construction of the upstairs of the building, pending the appeal. It is also submitted that the landlord requires the tenanted premises for starting hardware business in the ground floor and the upstairs will be utilised for the purpose of business intended by his wife.

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The learned counsel for the revision petitioner further argued that the Rent Control court failed to frame issues under the second proviso. The second proviso states that if the tenant is depending upon the trade or business carried on in the tenanted premises and he has no other alternative building, the tenant is entitled for protection from eviction.

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It is a case that both the Courts concurrently found that the tenant had sub let the building to a third party. In that scenario, the finding under Section 11(4)(1) of the Act is

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RCREV. NO. 175 OF 2022

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accepted and the tenant will not be entitled for any protection under proviso to Section 11(3) of the Act. Therefore, we are proceeding to consider the eviction order under Section 11(4) (1) of the Act.

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The case of the tenant is that he is

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conducting furniture business. However, an exparte commission was taken out. He found that one Muneer, who arrayed as the second respondent, was conducting meat business. Absolutely, there was no explanation as to the presence of Muneer who was conducting the meat business. The tenant attempted to justify the presence of Muneer by contending that he is a sales man under him. However, no documents were produced to establish the same. It is to be noted that the tenant had

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not filed any objection as against the

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commissioner's report. We are of the view that the Rent Controller justified in ordering eviction under Section 11(4)(1) of the Act. In

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RCREV. NO. 175 OF 2022

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view of the finding under Section 11(4)(1) of the

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Act, the tenant is not entitled to have protection under second proviso. The revision fails. Accordingly, dismissed. However, we grant

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six months time to the tenant to vacate the building on the following terms and conditions:

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(i) The tenant shall file an undertaking

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before the Rent Controller that he will surrender the vacant possession of the building within a

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period of six months from today. That

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undertaking shall be filed within a period of fur weeks.

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(ii)The tenant will continues to pay the

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rent till the vacant possession is handed over.

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Sd/-

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A.MUHAMED MUSTAQUE JUDGE

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Sd/-

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SHOBA ANNAMMA EAPEN

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JUDGE

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Ulliveettil Ashraf v. Thavarayil Ummer

Case brief

What is this about?

What did the court decide?

Ulliveettil Ashraf v. Thavarayil Ummer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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