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Kerala High Court

Kunnummal Krishnankutty vs Kinarullathil Bappankoya on 23 May, 2016

Bench: K.Surendra Mohan, Mary Joseph

        

 
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                             PRESENT:

             THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
                                                   &
                 THE HONOURABLE MRS. JUSTICE MARY JOSEPH

          MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938

                                   RCRev..No. 138 of 2016 ()
                                   ----------------------------------
 AGAINST THE JUDGMENT IN RCA 131/2014 of IIIADDL.D.C. KOZHIKODE.

  AGAINST THE ORDER IN RCP 24/2009 of MUNSIFF COURT, KOYILANDY.

REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
---------------------------------------------------------------------------

              KUNNUMMAL KRISHNANKUTTY,AGED 58 YEARS,
              S/O.CHOYIKUTTY, RESIDING AT KUNNUMMAL HOUSE,
              BALUSSERI AMSOM DESOM OF KOYILANDY TALUK.


                  BYADVS.SRI.V.V.SURENDRAN
                                SRI.P.A.HARISH

RESPONDENT(S)/RESPONDENT/PETITIONER:
---------------------------------------------------------------

              KINARULLATHIL BAPPANKOYA,
              AGED 63 YEARS, S/O. ALI,
             RESIDING AT KINARULLATHIL HOUSE,
             BALUSSERI AMSOM DESOM OF KOYILANDY TALUK,
             P.O.BALUSSERI, KOZHIKODE-673612.




             THIS RENT CONTROL REVISION                            HAVING COME UP FOR
ADMISSION ON 23-05-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:



           K. SURENDRA MOHAN & MARY JOSEPH, JJ.
                 - - - - - - - - - - - - - - - - -
                 R.C. Revision No. 138 of 2016
                 - - - - - - - - - - - - - - - - -
             Dated this the 23rd day of May, 2016.

                             ORDER

Surendra Mohan, J.

The tenant in R.C.P.24 of 2009 of the Rent Control Court, Koyilandy, who was the appellant in R.C.A. 131 of 2014 of the Rent Control Appellate Authority, Kozhikode, is in revision before us challenging the concurrent orders of eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). The respondent is the tenant.

2. The revision petitioner is an artist and is conducting a business in drawing posters, banners etc. The tenanted room is the upstair portion of a double storeyed building. According to the revision petitioner, it has no  R.C.R. 138/2016.

electricity connection or building number issued by the Local Authority. The landlord wants to start and conduct business in Photostat, DTP, Lamination and of running a telephone booth. The landlord was doing business in a rented premises from which he was forced to vacate.

3. The need of the landlord was contested by the tenant. It was contended that the need was not bonafide, that the income from the business that was being conducted by the tenant was the only source of his livelihood. Other contentions were also raised.

4. The evidence in the case consists of the oral testimonies of PWs 1 and 2 and RW 1, apart from Exts.A1 to A15 documents and Exts. B1 to B6(a). Ext.X1 has been marked as court exhibit.

5. The Rent Control Court considered the evidence on record and found that the landlord was entitled to an order of eviction on both counts. The tenant carried the matter in  R.C.R. 138/2016.

appeal to the Rent Control Appellate Authority, Kozhikode. The Appellate Authority has vacated the order of eviction under Section 11(2)(b) of the Act. The Rent Control Appellate Authority reapprised the evidence on record and found that the order of eviction granted under Section 11(3) was justified and that the tenant was not entitled to the benefit of the second proviso to Section 11(3) of the Act. It is against the said proceedings of the Rent Control Appellate Authority that this Revision is filed.

6. According to the learned counsel for the petitioner, the tenanted room is not suitable for the business that is proposed to be conducted by the landlord. In the first place, the building does not have an electric connection. It also is not numbered by the Local Authority. Considering that the landlord is proposing to conduct a business in Lamination, DTP and that of operating a telephone booth, an electric connection is indispensable. Therefore, the lack of the above  R.C.R. 138/2016.

facility cuts at the root of the bonafide need that has been put forward. It is contended that, a room that was got vacated from another tenant putting forward the need of the son has not been occupied by the landlord till date. Thirdly, it is contended that the wife of the landlord is the owner of another shop room that is kept vacant, thereby attracting the first proviso to Section 11(3) of the Act.

7. Having heard the counsel for the revision petitioner at length, we are not satisfied that any of the above grounds warrant an interference with the order of the Appellate Authority. In the first place, the fact that the tenanted shop room does not have an electric connection does not lead to a presumption that the landlord would not be able to obtain an electric connection after he is put in possession of vacant portion thereof. Secondly, as found by the Appellate Authority, the shop room that was got vacated for the need of the son of the landlord is said to be occupied by the son. It is  R.C.R. 138/2016.

also stated that, the Local Authority has issued a license to his son, though it is not the name of the landlord that is shown in the Building Tax Register. With respect to the building owned by the wife of the landlord, the first proviso to Section 11(3) cannot be attracted for the reason that the landlord is not the owner thereof. The authorities below have also found that the revision petitioner is not entitled to the benefit of 2nd proviso to Section 11(3) of the Act. The above being the position, we find no grounds to admit this Rent Control Revision or to grant any of the reliefs sought for.

8. The counsel for the revision petitioner seeks the grant of six months time to surrender vacant possession of the premises. It is contended that, the tenant is conducting a business that requires to be shifted to a suitable premises in a proper locality. To search out an appropriate premises for the required need, some time is necessary. Having considered the contentions put forward, we are satisfied that, it is  R.C.R. 138/2016.

necessary to grant time to the revision petitioner upto 31.10.2016 to surrender vacant possession of the premises.

In the result, this Rent Control Revision is ordered as follows:

(i) The Rent Control Revision fails and is accordingly dismissed.

(ii) The revision petitioner-tenant is granted time upto 31.10.2016 to surrender vacant possession of the premises to the landlord on condition that, he files an affidavit before the execution court (Munsiff Court, Koyilandy) in E.P.36 of 2016 in R.C.P. 24 of 2009 within a period of two weeks of the date of receipt of a copy of this Order, unconditionally undertaking to surrender vacant possession of the premises to the landlord on or before 31.10.2016. It shall be a further condition for the grant of time that the tenant continues to pay the rent in respect of the premises to the landlord without any delay or default until vacant possession is surrendered. 

R.C.R. 138/2016.

He shall also pay the arrears of rent, if any remaining unpaid, without any delay.

(iii) It is made clear that, in the event of the tenant committing default in complying with any of the above conditions, he shall forfeit the benefit of this Order.

Sd/-

K. SURENDRA MOHAN JUDGE Sd/-

MARY JOSEPH JUDGE sb