Kerala High Court
Revision vs Appellant Nos on 5 February, 2013
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 18TH DAY OF JUNE 2014/28TH JYAISHTA, 1936
RCRev..No. 143 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN RCA 53/2007 OF RENT CONTROL APPELLATE
AUTHORITY (ADDL. DISTRICT JUDGE),THALASSERY DATED 05-02-2013
AGAINST THE ORDER/JUDGMENT IN RCP 119/2005 OF MUNSIFF COURT,
THALASSERY DATED 15-01-2007
REVISION PETITIONER(S)/APPELLANT NOS.1, 3, 6, 7, 8, 9, SUPPL.
APPELLANT NOS.10, 11 & 14/ RESPONDENT NO.1, SUPPL. RESPONDENT NOS.7,
1O TO 13:
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1. T.M.MARIYA, AGED 68 YEARS
D/O LATE C.K.P KADERKUTTY KEYI, NO OCCUPATION
DARUL AMAN, THALASSERY.
2. A.P.M. SAREEFA, AGED 46 YEARS
WIDOW OF LATE SOOPHYKUTTY@ BABU,
RESIDING AT MARIAYAS
KAYYATH ROAD, THALASSERY
3. JAVAD ABDULLA, AGED 22 YEARS
S/O LATE SOOPHYKUTTY@ BABU, RESIDING AT MARIAYAS,
KAYYATH ROAD, THALASSERY.
4. JUNHAR JOOPIKUTTY, AGED 24 YEARS
S/O LATE SOOPHYKUTTY@ BABU, RESIDING AT MARIAYAS,
KAYYATH ROAD, THALASSERY.
5. NASEEM, AGED 20 YEARS
S/O LATE SOOPHYKUTTY@ BABU, RESIDING AT MARIAYAS,
KAYYATH ROAD, THALASSERY.
6. NAFEESATHUL MISIRIYA, AGED 18 YEARS
D/O LATE SOOPHYKUTTY@ BABU, RESIDING AT MARIAYAS
KAYYATH ROAD, THALASSERY.
7. C.O.K KADEEJA, AGED 55 YEARS
W/O LATE SOOPYKUTTY @ BABU, NO OCCUPATION
RESIDING AT THANUJAS, GOODS SHED ROAD, THALASSERY.
8. C.O.K THANOOJA, AGED 37 YEARS
D/O LATE SOOPYKUTTY @ BABU, NO OCCUPATION
RESIDING AT THANUJAS, GOODS SHED ROAD, THALASSERY.
9. C.O.K SAHEER, AGED 27 YEARS
S/O LATE SOOPYKUTTY @ BABU, NO OCCUPATION
RESIDING AT THANUJAS, GOODS SHED ROAD, THALASSERY.
BY ADVS.SRI.C.KHALID
SMT.P.VANDANA
SRI.PHIJO PRADEESH PHILIP
SRI.ADEEP ANWAR
RCR 143/13
RESPONDENT(S)/PETITIONER & RESPONDENTS 4 TO 6 & APPELLANTS 4,5 &
SUPPL. APPELLANTS NOS. 12&13 / PETITIONER, RESPONDENT NOS.4, 5, 6,
SUPPL.RESPONDENT NOS.8 & 9:
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1. P.V.BEEFATHU,AGED 37 YEARS
W/O MUKTHAR HAKKEEM, SAVISTHAN, KAYYATH ROAD
THALASSERY, KANNUR, PIN-670101.
2. T.M. HASHIM
S/O C.K.P KADERKUTTY KEYI, HAFIYA,
NEAR DISTRICT COURT
THALASSERY, KANNUR, PIN - 670101.
3. K.K.C SIRAJ,
SILKEENA SAREES, NEAR A.S.P OFFICE,
THALASSERY, KANNUR, PIN - 670101.
4. B. ABDUL KAHADER,
SILKEENA SAREES, NEAR A.S.P OFFICE
THALASSERY, KANNUR, PIN - 670101
5. MUHAMMED FAYIS, AGED 27 YEARS,
RESIDING AT MARIAYAS, KAYYATH ROAD
THALASSERY, KANNUR, PIN-670101.
6. FAZAL, AGED 25 YEARS,
RESIDING AT MARIAYAS, KAYYATH ROAD
THALASSERY, KANNUR, PIN - 670101.
7. C.O.K HABEEBA, AGED 30 YEARS,
D/O SOOPYKUTTY@ BABU, NO OCCUPATION
RESIDING AT THANUJAS, GOODS SHED ROAD
THALASSERY, KANNUR, PIN - 670101.
8. C.O.K. SUHAIB, AGED 28 YEARS,
S/O SOOPYKUTTY @ BABU, RESIDING AT THANUJAS,
GOODS SHED ROAD, THALASSERY,
KANNUR, PIN - 670101.
R1 BY ADV. SRI.P.B.KRISHNAN
R1 BY ADV. SRI.K.R.AVINASH (KUNNATH)
R1 BY ADV. SRI.ABDUL RAOOF PALLIPATH
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
18-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RCR 143/13
APPENDIX
PETITIONER'S EXHIBITS
ANNEXURE NO.1 : COPY OF PARTNERSHIP DEED.
ANNEXURE NO.2 : COPY OF THE LEGAL NOTICE DATED 15.09.2004.
//TRUE COPY//
PA TO JUDGE.
jg
THOTTATHIL B.RADHAKRISHNAN &
P.B.SURESH KUMAR, JJ.
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RCR No.143 of 2013
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Dated this the 18th day of June, 2014.
O R D E R
Thottathil B.Radhakrishnan, J.
1.We have heard the learned counsel for the revision petitioners and the learned counsel for the respondents in this petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965.
2.The revision petitioners stand with concurrent findings against them by the Rent Control Court and the appellate authority. The appellate authority also held that the landlady has proved her bona fide need for own occupation under Section 11(3) of the Act and has also established a clear case of transfer of interest by the tenant to third parties and thereby incurred the liability to be evicted in terms of Section 11(4)(i) of the Act.
3.The landlady's case that her husband, who is presently working abroad, wants to come back and to start a business in textile in RCR No.143/13 -2- the premises, has been found on cogent evidence. The fact that the tenant is not entitled to protection of the first two provisos of Section 11(3) has also been found on the basis of the material on record. Such findings have been rendered assimilating the testimony of the witnesses and other documentary evidence.
4.Necessary inferences have been drawn on the basis of available materials, and the findings of the court of first instance have been affirmed by the appellate court, after adverting to and considering all materials. In this view of the matter, we do not find any illegality, irregularity or impropriety in the concurrent findings of the courts below under Section 11(3) of the Act. This revision petition, to that extent, therefore, fails.
5.Insofar as the finding in relation to subletting or the tenant transferring interest under the lease is concerned, Ext.A3 is the lease deed in favour of Khaderkutty Keyi, the original tenant, who is described as the managing partner of the firm. There is nothing in that document to show that the lease was in favour of RCR No.143/13 -3- a firm. Be that as it may, we may note that in reply to the suit notice (Ext.A4), Ext.A5 reply was given in which the plea is that ever since the entrustment, C.K.P.Khader Kutty Keyi conducted textile business by way of forming and constituting partnership business under periodical arrangements and the business is continued in the very same like in partnership and those affairs are fully known to their clients also. This essentially does not even contain a specific assertion as to whether the tenant had actually put his tenanted premises in the hotchpot of a partnership firm, to which he is becoming a partner, or whether the lease itself was taken for and on behalf of the partnership. We may here recall that the court of first instance has looked into the materials and has adjudicated to hold that what is being projected as a partnership is a mere camouflage and the court is entitled to pierce the wheel of the so-called partnership and look at the real relationship. Ext.B1 is a partnership deed dated 07.07.2006 produced by the revision petitioners. That document, which has come into being after the issuance of the suit notice and reply notice and also the institution of the rent control RCR No.143/13 -4- petition before the Rent Control Court, says that two among the partners enlisted as two persons in that deed have been brought in and they are, admittedly, strangers to the family. They together take 80% of the share of the profit and loss account, going by the terms of Ext.B1. The other continued with 5% share each. We necessarily do not find our way to hold that the findings of the courts below that the story of the partnership is not believable have to fail. We see no illegality, irregularity or impropriety in those findings either.
6.For the aforesaid reasons, this revision petition fails. In the result,
(a) This revision is dismissed.
(c)All the revision petitioners and any other additional person mentioned in Ext.B1 are granted five months' time from today to vacate the premises and deliver RCR No.143/13 -5- possession to the landlady on the following conditions:
i. They remit the entire arrears of rent as on today before the executing court within four weeks from today and file an affidavit before the executing court within four weeks from today, unconditionally undertaking to surrender vacant possession of the premises to the landlady within five months from today.
ii. They pay charges towards use and occupation of the building at the current rent rate from today till they give vacant possession of the premises to the landlady.
(d)Execution proceedings, if any, pending before the executing court shall be kept in abeyance for a period of five months.
RCR No.143/13 -6-
(e)If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to the tenants as per this order will stand recalled automatically and the executing court shall effect delivery forthwith.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (P.B.SURESH KUMAR, JUDGE) jg