Allowed

D.Maniyan v. Philip Sebastian

Kerala HC14 Nov 2022RCRev./81/2021

Case brief

AI extract

What is this about?

High Court of Kerala upheld eviction order under section 11(8) of Kerala Buildings (Lease and Rent Control) Act, 1965. Court rejected tenant's plea of hardship, finding his tea stall business did not necessitate his specific disability. Eviction allowed with six-month possession time contingent on clearing arrears.

What did the court decide?

Eviction upheld; tenant granted six months to vacate subject to clearing rent arrears within four weeks and filing undertaking of surrender.

D.Maniyan Vs Philip Sebastian — Landlord and Tenant | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 14TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944

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RCREV. NO. 81 OF 2021

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AGAINST THE JUDGMENT IN RCA NO.3/2020 DATED 19.01.2021
OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT
JUDGE), ALAPPUZHA AND THE ORDER IN RCP NO.15/2016
DATED 20.12.2019 OF THE RENT CONTROL COURT, CHERTHALA

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PETITIONER/APPELLANT/COUNTER PETITIONER:

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D.MANIYAN
AGED 64 YEARS,
S/O.K.V.DAMODARAN, ARAVINDALAYAM, CMC-12,
CHERTHALA EAST MURI, KOKKOTHAMANGALAM
VILLAGE, CHERTHALA P.O., CHERTHALA TALUK,
ALAPPUZHA DISTRICT-688 524.
BY ADVS.
J.OMPRAKASH
SRI.T.G. SUNIL (PRANAVAM)
SRI.C.X. ANTONY BENEDICT
SRI.T.S. BHARATH KRISHNA
SRI.EMMANUAL SANJU

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RESPONDENT/RESPONDENT/PETITIONER:

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PHILIP SEBASTIAN
AGED 37 YEARS,
S/O.SEBASTIAN, PANICKAPARAMBIL, VARANAM MURI,
THANNEERMUKKOM NORTH VILLAGE,
THANNEERMUKKOM GRAMA PANCHAYAT,
WARD NO.14, THANNEERMUKKOM P.O.,
CHERTHALA, ALAPPUZHA-688 527.
BY ADVS.
JOBY CYRIAC
KURIAN K. JOSE

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RC.Rev. 81/2021

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THIS RENT CONTROL REVISION HAVING BEEN HEARD ON
14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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RC.Rev. 81/2021

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JUDGMENT

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A.MUHAMED MUSTAQUE,J.

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This revision is filed by the tenant. He
challenges the concurrent findings of eviction
under section 11(8) of the Kerala Buildings
(Lease and Rent Control) Act, 1965. The tenant
is conducting a tea stall in the tenanted
premises. The landlord conducts a business
dealing with kids clothes, toys etc in the
adjacent premises. The landlord, in fact was
one of the tenants in respect of his building.
In the year 2015, he purchased entire building
from the erstwhile landlord. The landlord wants
to expand his business. He wants to deal with
similar business for grown up as well. He filed
the Rent Control Petition after one year of
purchase. The Rent Controller as well as the

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RC.Rev. 81/2021

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Appellate Authority upheld the claim of

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eviction. This is how, tenant approached this
Court in this revision.

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2. Heard the learned counsel for the
tenant, Sri. J. Omprakash and Adv. Joby Cyriac
for the respondent, landlord.

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3. The learned counsel for the revision

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petitioner raised three grounds of challenge.
Firstly, the learned counsel for the revision
petitioner pointed out the tenant is having 80%
permanent disability, and while adverting to the
comparative advantage and disadvantage, both the
authorities overlooked that aspect of medical
condition of the tenant. Secondly, it was
argued, commission report indicates that there
are vacant rooms in possession of the landlord
in the same building and the landlord has not

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RC.Rev. 81/2021

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chosen to explain why he cannot use those rooms.
Thirdly, it was argued, both the authorities
have failed in considering the question related
to comparative hardships of the tenant.

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4. Admittedly, the landlord is conducting a

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business for the kids under the name and style
‘Merry Kid’ in the next room. There are
altogether 5 rooms in the entire building. The
landlord had purchased the entire building. He
got the vacant portion of all other rooms for
expansion of his business and the revision
petitioner alone has refused to handover the
vacant possession.

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5. The landlord’s requirement is precise in

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this case to expand the existing business. If

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he is having a room elsewhere, not conducive to
expand his present business, it cannot be said

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RC.Rev. 81/2021

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that his need is not bonafide. Room pointed out
in the commission report is on the rear side of
the existing building which is apparently being
used by the landlord for the purpose of storing
his goods, as a godown. The need to occupy next
building for expansion of business cannot be
doubted in normal circumstances. Both the
Authorities on appreciation of evidence have
come to a conclusion that need is genuine and
bonafide. It is true that the landlord had not
spoken that he got vacant possession of other
rooms in the building for the same need. It is
to be noted that the tenant has no case that
after those rooms became vacant, landlord has
let out those rooms to third parties. It was
incumbent on the part of the landlord to mention
all aspects relating to the eviction, especially
when eviction is relatable to bonafides of the
landlord. In order to demonstrate the

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RC.Rev. 81/2021

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bonafides, the landlord has to plead and prove
all such circumstances which would dispel any
other motives attributed to him. Since, no
prejudice has been caused to the tenant, on
account of lack of pleadings in regard to other
rooms in the same building, we are of the view
that, it does not impact the claim for eviction
under section 11(8) of the Act.

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6. The Rent Control Court is competent to

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reject an application under section 11(8), even
if, the application is found bonafide. On
analysis of comparative hardships, tenant is
able to demonstrate the hardships may cause to
him would outweigh the advantage to the
landlord. Hardships referred under proviso to
section 11(10) of the Rent Contorl Act is
relatable to the needs of the tenant. It is for
the tenant to highlight that he will suffer

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RC.Rev. 81/2021

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greater hardships than the advantage that may
enure to the landlord, consequent upon eviction.
The disability is one factor, could relied upon
to demonstrate the nature of business carried by
him had proximate with his bodily disability.
If the nature of the business has nothing to do
with bodily disability, it may not have much
consequence in such matter. The tenant conducts
a tea stall, perhaps, by employing staffs. The
same business he can also conduct in any other
shops in the locality. He conceded before the
court below that he had not made any enquiry as
to the availability of other rooms in the
locality. That means, he has failed to prove
the hardship that may likely to arise consequent
upon the order of eviction.

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7. In the light of the discussion as above,

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we find no reason to interfere with the finding

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RC.Rev. 81/2021

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on facts rendered by both the courts below. Both
the Authorities had concluded the proceedings in
a proper perspective, while ordering eviction.
We sustain the order of eviction and dismiss the
revision petition. However, we grant six months
time to the tenant to vacate the building on the
following conditions:

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i) Tenant shall clear entire arrears of rent
within a period of four weeks, from today.

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ii) Tenant shall file an undertaking that he
will surrender the building within a period of
six months and the undertaking shall be filed
before the Rent Control Court within a period
four weeks, from today.

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RC.Rev. 81/2021

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The Rent Control Revision is dismissed as

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above. No order as to costs.

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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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BR

D.Maniyan v. Philip Sebastian

Case brief

What is this about?

What did the court decide?

D.Maniyan v. Philip Sebastian

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

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Case details

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