Jaseela.K.T. v. Shaju M.M. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** **RCREV. NO.251 OF 2019** **AGAINST THE JUDGMENT IN RCA NO.32/2017 OF ADDITIONAL DISTRICT** **COURT, KOZHIKODE/IST ADDITIONAL MACT, KOZHIKODE AGAINST THE ORDER IN R.C.P.NO.120/2014 OF PRINCIPAL MUNSIFF** **COURT-II, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/1ST RESPONDENT:** **JASEELA.K.T., AGED 43 YEARS, D/O.K.T.MOIDEEN, PARAMMAL HOUSE, KATTIRICHAL JUNCTION, NELLIKKAPARAMBA P.O., MUKKOM (VIA), KOZHIKODE.** **BY ADVS. R.RAMADAS SRI.T.SIVADASAN** ## **RESPONDENT/S:** - 1 **SHAJU M.M., AGED 51 YEARS, S/O.UNNIMOYIN, ULLATTIL ARREPATTA MANNIL, KODIYATHUR AMSOM DESOM, MUKKOM VIA, KOZHIKODE, PIN-673 602.** 2 **MUHAMMED BASHEER, AGED 54 YEARS, K.T.SUPER MARKET, MP 1/1749, FATHIMA COMPLEX, MUKKOM PANCHAYATH BUS STAND, MUKKOM (PO), KOZHIKODE, PIN-673 602.** 3 **K.T.MOIDEEN, AGED 73 YEARS, THEERANTHODI, THAYYIL HOUSE, KODIYATHUR AMSOM DESOM, KOZHIKODE, PIN-673 602.** ## **BY ADV SRI.SRINATH GIRISH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10.11.2022, THE COURT ON 14.11.2022 DELIVERED THE FOLLOWING:** ## **A.MUHAMED MUSTAQUE** ## **&** ## **SHOBA ANNAMMA EAPEN, JJ.** ------------------------------------------ **R.C.R.No.251/2019** ------------------------------------------ ## **O R D E R** ## **Dated this the 14[th] day of November, 2022** ## A.Muhamed Mustaque, J. The tenant is the revision petitioner. She challenges an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the 'Act'), concurrently found in favour of the landlord. The eviction was allowed on the ground of _bona fide_ need of the landlord to start a grocery business in the tenanted premises. The tenanted premises originally belonged to the father of the landlord. The landlord and his siblings inherited the tenanted premises. The landlord’s siblings were not joined in the eviction petition for the reason that they R.C.R.No.251/2019 ## **-:2:-** were abroad. The only point raised in this revision by the learned counsel Shri T.Sivadasan appearing for the revision petitioner/tenant is on the ground of non impleadment of the other siblings in the petition. According to him, in the light of the judgment of this Court reported in **Ibrahim vs. Zeena Robert [MANU/KE/2450/2017],** a petition filed under Section 11(3) by one of the co-owners is not maintainable. The learned counsel fairly conceded that this Court in **Sai Service Station Ltd. v. Dileep Ganesh [2022 (1) KLT 845]** had taken a contrary view and submitted further that the question may be referred to a larger Bench. The learned counsel further argued that in terms of the first proviso to Section 11(3), when the landlord is found to have another building in the locality, in co-ownership, it is not fatal for his claim for eviction under Section 11(3). But the same analogy or reasoning is not adopted when the co-owner is R.C.R.No.251/2019 ## **-:3:-** suing alone for occupation of the building under Section 11(3). 2. It is specifically pleaded by the landlord in the petition for eviction that all other siblings of the landlord are abroad and the application for eviction was filed with their knowledge and consent. The tenant had failed to rebut this aspect of pleading in the petition for eviction. It is settled law that a petition for eviction is maintainable at the instance of one of the co-owners. {See the judgments of the Hon'ble Supreme Court in **Om Prakash and Another v. Mishri** **Lal (Dead) Represented by His Legal Representative Savitri Devi and Another [(2017) 5 SCC 451]** and **India Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (Dead) by LRs. Savitri Agarwalla (Smt.) and Others [(2004) 3 SCC 178].}** In the judgment referred by the learned counsel for the revision petitioner/tenant in **P.K.Rajan v.** R.C.R.No.251/2019 ## **-:4:-** **Mohanraj [Laws (Ker) 2017 6 89]** , a petition for eviction, there was no pleading to the effect that the other co-owners had consented or agreed to the need pleaded by one of the co-owners under Section 11(3) of the Act. It is taking note of the absence of pleadings therein, this had Court held that bona fides of the petition for eviction is doubtful. In **Sai Service Station Ltd** case (supra), this Court held that eviction sought for own occupation by one of the co-owners is maintainable so long as it is not objected to by the non-suing co-owners. If the tenant had a case that the other co-owners are objecting to the eviction, the tenant has to prove the same by adducing evidence. It is to be noted that no steps were taken by the tenant to substantiate the objection now raised. 3. The argument of the learned counsel for the landlord is that this Court in **Asher v. Hassankutty Hajee** [ **ILR (KER) 2004 2 (506)]** had taken the view that the right of the co-ownership over a building R.C.R.No.251/2019 ## **-:5:-** would not disentitle a landlord under the first proviso to Section 11(3) from claiming eviction under Section 11(3) of the Act, therefore, following the analogy and the reasoning adopted by this Court in the above judgment, this Court must also hold that the petition for eviction without conjunction of other co-owners is not maintainable under Section 11(3) of the Act. The first proviso to Section 11(3) states that, if the landlord has another building in his possession in the same locality, except for special reasons, the rent controller shall not order eviction under Section 11(3) for _bona fide_ need of the landlord. This Court in **Asher's** case (supra) opined that merely because a landlord, who is seeking eviction under Section 11(3), is having another building in co-ownership, will not disentitle him from seeking relief under Section 11(3). The first proviso would come into play only when the landlord is having another suitable building in the locality. The R.C.R.No.251/2019 ## **-:6:-** building owned in co-ownership is not treated as suitable for the purpose of the first proviso. It is adjudging the suitability, this Court opined as above. In the claim for eviction by one of the co-owners, if there is no objection from the other co-owners, it implies the consent of other co-owners, permitting the suing co-owner to occupy the building for his need. In such circumstances, it cannot be said that the landlord lacks _bona fide._ 4. No other points have been raised before us. We find therefore, no reason to interfere with the orders passed by both the authorities. The revision fails and is, therefore, dismissed. However, the revision petitioner is granted six months time to vacate the building on the following conditions: i. The tenant shall file an undertaking that she will vacate the building within six months from today. R.C.R.No.251/2019 ## **-:7:-** ii. The undertaking as above shall be filed before the Rent Control Court within three weeks from today. iii. The tenant shall clear the entire arrears of rent and continue to pay the rent till she vacates the building. If there are arrears, it shall be cleared within one month from today. No order as to costs. **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** ## **ms**