Kerala High Court
Ibrahim vs Zeena Robert on 19 August, 2015
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939
RCRev..No. 254 of 2015 (E)
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AGAINST THE JUDGMENT IN RCA 7/2014 of ADDL. DISTRICT COURT & RENT
CONTROL APPELLATE AUTHORITY, N.PARAVUR DATED 19-08-2015
AGAINST THE ORDER IN RCP 12/2012 of MUNSIFF COURT,ALUVA DATED 31-
01-2014
REVISION PETITIONER(S)/APPELLANT/PETITIONER:
--------------------------------
IBRAHIM
S/O. YOUSEF, KUREECKAL HOUSE, CHELACKARAPPADAM DESOM,
PERINJANAM VILLAGE, KODUNGALLUR TALUK,
THRISSUR - 680 686.
BY ADVS.SRI.K.SHRIHARI RAO
SMT.N.SHOBHA
SRI.A.S.SREEKANTH
RESPONDENT(S)/RESPONDENT/RESPONDENT:
-------------------------
ZEENA ROBERT, AGED 41 YEARS,
W/O. ROBERT, VALYAPARAMBIL HOUSE, SANTHOSH LANE,
ALUVA KARA, ALUVA WEST VILLGE,
ALUVA TALUK, ERNAKULAM - 683 101.
BY ADV. SRI.JAISON JOSEPH
BY ADV. SRI.P.S.APPU
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
01-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OKB
CR
K.HARILAL & P. SOMARAJAN, JJ.
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R.C.R. No.254 of 2015
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Dated this the 1st day of August, 2017
O R D E R
Somarajan, J.
Aggrieved by the concurrent findings rendered by both the Rent Control Court and the Appellate Authority under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Act), one of the landlords came up with this revision.
2. The petition was originally filed under Sections 11 (2)(b) and 11(3) of the Act. But the ground under Section 11(2)(b) of the Act was not pressed into service and the petition was proceeded under Section 11(3) of the Act. The need advanced is for own occupation of the landlord/petitioner, who is admittedly a co-owner of the property. Both the Rent Control Court and the Appellate Authority rejected the claim mainly on the reason that the evidence adduced through the Power of Attorney holder, RCR.254/15-E :2:
father-in-law of the petitioner, cannot be substituted in the place of direct evidence from the landlord/petitioner and that the Power of Attorney holder is not competent to give evidence regarding the need of the landlord.
3. The need advanced is for the own occupation of one of the co-owners, the petitioner herein. In the petition, there is no pleading to the effect that the other co-owners have consented or agreed for the need advanced by the petitioner for occupying the petition scheduled building, admittedly owned by more than one person, over which the petitioner is having only fractional interest. In order to test the bona fides of the need, it is within the jurisdiction of both the Rent Control Court as well as the Rent Control Appellate Authority to look into the question whether the need advanced is capable of being put in execution. If it is found that it is not capable of being put in execution without the consent of the other co-owners, it is not permissible to grant an order of eviction under Section 11(3) of the Act. In other words, the consent of all the co-owners, who are RCR.254/15-E :3:
having fractional interest over the property, is required for the alleged occupation of the petitioner. For that purpose, all co-owners should join hands with the petitioner in filing the application and they should be in the party array of such petition. Even a pleading to the effect that the other co- owners have consented to give the petition schedule shop room for the user of one of the co-owners, is not at all sufficient, as it can be withdrawn at anytime by any of the co-owners. So, it is a mandatory requirement that all co- owners should join hands with the petitioner in filing the petition for eviction under Section 11(3) of the Act, if it really requires for the occupation of one of the co-owners. During the course of arguments, the learned counsel for the petitioner submits that the expression "landlord" as defined under Section 2(3) of the Act is wide enough to intake a person, who is entitled to receive rent and hence the petitioner herein comes under the purview of the expression "landlord" being a co-owner of the property. There cannot be any quarrel with the legal position that one of the co-
RCR.254/15-E :4:
owners would come under the purview of "landlord" as per the definition given under the Act and can maintain a Rent Control Petition. But, in order to bring the need within the ambit of Section 11(3) of the Act, the petition scheduled building should be at the disposal of the petitioner, on getting eviction of the tenant. So, without the juncture of other co-owners, the petitioner cannot claim a need for his occupation as envisaged under Section 11(3) of the Act and hence it is not necessary to go into the evidentiary value of the oral evidence tendered through the Power of Attorney holder, the father-in-law of the petitioner herein. Hence the revision fails. We find no reason for interference.
In the result, the revision is dismissed. No order as to costs.
Sd/-
K.HARILAL, Judge.
Sd/-
P.SOMARAJAN, Judge.
okb.