Remanded

Mht Kunhalavi, v. Imbichipathummabi

Kerala HC2 Nov 2022RCRev./371/2019

Case brief

AI extract

What is this about?

The High Court of Kerala in a revision petition set aside the eviction order passed by the Rent Control Appellate Authority. The court held that the tenant was not given an opportunity to prove protection under the second proviso to Section 11(3) of the Act. Additionally, the burden was not discharged by the landlord to prove the tenant's exclusive possession under Section 11(4)(iii). The matter w

What did the court decide?

The order of the Rent Control Appellate Authority is set aside and the matter remanded to the Rent Control Court for a de novo trial with directions to dispose of the petition within three months.

Mht Kunhalavi, Vs Imbichipathummabi — Landlord and Tenant | Kerala HC (2022)

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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 WEDNESDAY, THE 2^ND DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 RCREV. NO. 371 OF 2019

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RCA 279/2016 OF THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP 30/2015 OF RENT CONTROL COURT, KOZHIKODE

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REVISION PETITIONER/RESPONDENT/RESPONDENT:

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MHT KUNHALAVI, AGED 70 YEARS S/O.YAHUTTY, HASIM NIVAS, KOYAPARAMB ROAD, NAGARAM AMSOM, NAGARAM DESOM, KOZHIKODE.

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BY ADVS. C.R.SYAMKUMAR SOORAJ T.ELENJICKAL P.A.MOHAMMED SHAH K.ARJUN VENUGOPAL ASWIN KUMAR M J HELEN P.A.

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RESPONDENT/APPELLANT/PETITIONER:

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IMBICHIPATHUMMABI, AGED 76 YEARS, D/O.LATE MAMUKOYA HAJI, ASHIYANA HOUSE, PUTHIYAMANATHALAYIL, VALAYANAD AMSOM, VALAYANAD DESOM, MANKAVU POST, KOZHIKODE.

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BY ADVS. SRI.NIRMAL. S SMT.VEENA HARI

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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..2..

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RCREV. NO. 371 OF 2019

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JUDGMENT

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A. MUHAMED MUSTAQUE, J.

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This revision is preferred by the tenant

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aggrieved by an order of remand for examining the landlord or her dependent to prove their claim for eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control Act), 1965 (for short, “the Act”), ' bona fide need'. In this

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revision, he also challenges an order of eviction under Section 11(4)(iii) of the Act. The Rent Control Court dismissed the eviction petition. The Rent Control Appellate Authority reversed the

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order of dismissal and ordered for remand for reconsideration of the claim for eviction under Section 11(3) of the Act and allowed eviction under Section 11(4)(iii) of the Act.

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After going through the impugned order, we are of the view that the appellate authority only had

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exercised its discretionary power and given opportunity to the landlord to sustain their

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RCREV. NO. 371 OF 2019

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..3..

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claim under Section 11(3) of the Act. No prejudice has been caused to the tenant. However, we find that the tenant has not been given an opportunity to prove protection under second proviso to Section 11(3) of the Act. Having

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considered the arguments, we are of the view that the tenant should also be given an opportunity to adduce evidence under second proviso to Section 11(3) of the Act.

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In regard to the eviction under Section 11(4) (iii) of the Act, it is to be noted that eviction can be granted if the tenant is in possession of another building suitable for his need. The Commission Report relied on by the Rent Control Appellate Authority shows that two rooms, pointed out by the landlord, remained idle. However, no documents were produced by the tenant to prove that those rooms are not belonging to him.

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According to the learned counsel for the revision petitioner/respondent/tenant, the rooms pointed out by the landlord belong to his mother, which

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RCREV. NO. 371 OF 2019

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..4..

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are devolved on all the legal heirs on her death, and the tenant has no exclusive possession over it.

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The burden to prove that those rooms are in possession of the tenant is cast on the landlord. If it is shown that those rooms are in the possession of the tenant, the burden shifts to the tenant to prove that the rooms are not suitable. In view of the fact that the landlord had failed to prove that those rooms are in the exclusive possession of the tenant, we are of the view that the impugned order of eviction under

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Section 11(4)(iii) can be set aside for reconsideration, giving both parties to adduce evidence.

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Accordingly, the order of the Rent Control Appellate Authority is set aside and the matter is remanded back to the Rent Control Court for fresh consideration of the claims for eviction under Sections 11(3) and 11(4)(iii) of the Act. Both parties are given opportunity to adduce

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RCREV. NO. 371 OF 2019

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..5..

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evidence to prove their case. A de novo trial shall be conducted as regards the claims for eviction under Sections 11(3) and 11(4)(iii) of the Act.

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It is made clear that the dismissal of the claim for eviction under Section 11(4)(ii) of the Act has become final as there is no challenge against the same by the landlord.

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The Rent Control Court is directed to dispose of the rent control petition within three months. Parties are directed to appear before the Rent Control Court on 01.12.2022.

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The revision petition is disposed of, accordingly.

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Sd/-

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A. MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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SHOBA ANNAMMA EAPEN

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JUDGE

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bka/-

Mht Kunhalavi, v. Imbichipathummabi

Case brief

What is this about?

What did the court decide?

Mht Kunhalavi, v. Imbichipathummabi

Case brief

What is this about?

What did the court decide?

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