Dismissed

Malabar Food Stuff Company v. D.Vijayalakshmi

Kerala HC2 Aug 2023RCRev./114/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a revision petition challenging an eviction order under bona fide need. Concurring below, the Court upheld the eviction, granted the landlord six months to recover possession, and imposed conditions regarding vacant possession and rent arrears.

What did the court decide?

Petitioner landlord granted six months time to recover vacant possession subject to conditions; tenant required to pay arrears.

Malabar Food Stuff Company Vs D.Vijayalakshmi — Landlord and Tenant | Kerala HC (2023)

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RCRev. No.114 of 2023

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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.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 2ND DAY OF AUGUST 2023 / 11TH SRAVANA, 1945
RCREV. NO. 114 OF 2023

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AGAINST THE ORDER IN RCP 21/2017 OF ADDITIONAL MUNSIFF/RENT

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CONTROLLER, KOCHI

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RCA 7/2020 OF THE ADDITIONAL DISTRICT JUDGE – VII (RENT CONTROL
APPELLATE AUTHORITY), ERNAKULAM / III ADDITIONAL MACT, ERNAKULAM
REVISION PETITIONER/APPELLANT/RESPONDENT:

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MALABAR FOOD STUFF COMPANY
CC7/1052A (OLD NO.8/2201),
KILIKAR ROAD, KOCHI-2,
REP. ITS MANAGING PARTNER,
KRISHNA CHANDRA CHATURVEDI, CC 7/1052A (OLD NO.8/2201),
KILIKAR ROAD, PIN - 682002
BY ADV M.H.HANIS

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RESPONDENT/RESPONDENT/PETITIONER:

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D.VIJAYALAKSHMI, AGED 62,
W/O. NARAYANA VADHYAR,
RESIDING AT CC/7/935 (OLD NO.8/1733), SAPTAGIRI,
JAWAHAR ROAD, KOCHI-2
BY ADVS.
BY SRI.LAKSHMI NARAYAN R.
R.RANJANIE(K/624/1993)

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
02.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RCRev. No.114 of 2023

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A.K.JAYASANKARAN NAMBIAR

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MOHAMMED NIAS C.P., JJ

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............................................................

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RCRev. No.114 of 2023

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Dated this the 2^nd day of August, 2023

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O R D E R

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Mohammed Nias C.P., J

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The revision petitioner, who is the tenant in RCP No.21/2017 on the file of the Rent Control Court (Munsiff Court), Kochi, has filed this revision aggrieved by the judgment in RCA No.7/2020 of the Rent Control Appellate Authority (Additional District Court-VII), Ernakulam, that confirmed the order of eviction granted by the trial court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’).

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The respondent herein filed an application under Section 11(3) of the Act contending that her son and daughter-in-law, who are dentists, intended to start a super speciality dental clinic, and for that purpose, she is in bona fide need of the petition schedule property. The tenant resisted the petition contending that the respondent herein is not the landlord, as there are other legal heirs as well. The need pleaded was only a ruse to evict the tenant. The landlord's son and daughter-in-law are running a dental clinic at Kakkanad. Apart from that, the landlord also has several other properties in her possession

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RCRev. No.114 of 2023

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to start a dental clinic. The Rent Control Court, which considered the evidence of PWs 1 and 2 as well as that of the Advocate Commissioner and the evidence of the tenant as RW1, found that the need projected was bona fide and, accordingly, ordered eviction.

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The tenant filed an appeal to the appellate authority reiterating the contentions taken before the Rent Control Court and further contended that the respondent could not have maintained the petition without the junction of the other heirs. It was also the contention of the tenant before the appellate authority that the landlord had several buildings in her possession. The appellate authority, after considering the contentions raised and, in particular, the specific question put to the tenant, RW1 Sameer Chaturvedi as to whether he admitted the bona fide need of the landlord and his answer, “I do not know. Perhaps they need”, found that the need projected was not seriously questioned. It was also found that the tenant adduced no evidence to prove both limbs of the second proviso. The appellate authority further found that an action of eviction can be instituted by one co-owner without the junction of the others since the tenant has admitted that the respondent as one of the co-owners, the petition is maintainable. The appellate authority also considered the definition of “landlord” under Section 2(3) of the Act and held that the contentions to the contrary raised by the tenant are only to be rejected. Having found that the order of the Rent Control Court was proper, the appeal was dismissed.

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We heard Sri. M.H. Hanis, the learned counsel for the revision petitioner, and Sri. R. Lakshmi Narayan, who appeared on behalf of the landlord/ respondent.

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RCRev. No.114 of 2023

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Having heard the learned counsel on either side, we are of the firm view that the orders of the courts below call for no interference. Both the courts considered the question of the bona fides of the landlord with reference to the evidence adduced and, in particular, the admission of the tenant regarding the bona fide need. There is nothing to discredit the need put forth, and we concur with the findings of the appellate authority that confirmed the finding of the Rent Control Court that the need, in this case, is bona fide. As regards the first proviso to Section 11(3), there is no evidence of the landlord having any other suitable building for the proposed need. As regards the second proviso, the tenant has not adduced any evidence to substantiate both limbs, which had to be established by the tenant. As rightly found by the appellate authority, the trial court properly considered the pleadings and the evidence adduced. We find no reason to differ from the concurrent findings of fact entered into by the authorities below. We see no reason to interfere with the impugned orders in revision. The revision is accordingly dismissed.

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At this juncture, the learned counsel for the tenant sought a year’s time to vacate, pointing out that the tenant had been in possession since 1968. The learned counsel for the landlord opposes this. Having considered the relevant aspects, we deem it appropriate to grant six months’ time, subject to the following conditions:-

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“ (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that the respondent will surrender vacant possession of the petition schedule

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RCRev. No.114 of 2023

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building to the petitioner-landlord within six months from the date of this order and that, the respondent shall not induct third parties into possession of the petition schedule building, and further the respondent shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities;

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(ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default;

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(iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled automatically, and the landlord will be at liberty to proceed with the execution of the order of eviction.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR

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JUDGE

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Sd/-

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MOHAMMED NIAS C.P.

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JUDGE

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okb/

Malabar Food Stuff Company v. D.Vijayalakshmi

Case brief

What is this about?

What did the court decide?

Malabar Food Stuff Company v. D.Vijayalakshmi

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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