KOLLEKKATTU BAVA (DIED) and others v. SANThOSH INDUSTRIAL and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 10TH DAY OF JANUARY 2012/20TH POUSHA 1933** ## **RCR.No. 482 of 2011 ( )** **----------------------------RCA.35/2010 OF RENT CONTROL APPELLATE AUTHORITY/III ADDL. DISTRICT COURT, KOZHIKODE RCP.50/2009 OF RENT CONTROL/ADDITIONAL MUNSIFF COURT -I, KOZHIKODE** **--------------------** ## **REVISION PETITIONERS / APPELLANTS / 1ST RESPONDENT AND LRS :** **-----------------------------------------------------------------------------------------------------** ## **1. KOLLEKKATTU BAVA (DIED).** ## **2. AYISHABI,** **W/O.LATE K.K.BAVA, AGED 75 YEARS, RESIDING AT PARAKKATT THAZHATHU, K.K.HOUSE, KACHERI AMSOM DESOM, P.O.NADAKKAVU, KOZHIKODE.** ## **3. K.K.AHAMMED KOYA,** **AGED 57 YEARS, S/O.LATE K.K.BAVA RESIDING AT PARAKKATT THAZHATHU K.K.HOUSE, KACHERI AMSOM DESOM P.O.NADAKKAVU, KOZHIKODE.** ## **4. K.K.BEEVI,** **AGED 54 YEARS, D/O.LATE K.K.BAVA RESIDING AT PARAKKATT THAZHATHU K.K.HOUSE, KACHERI AMSOM DESOM P.O.NADAKKAVU, KOZHIKODE.** ## **5. K.K.ABDUL BASHEER,** **AGED 52 YEARS, S/O.LATE K.K.BAVA RESIDING AT PARAKKATT THAZHATHU K.K.HOUSE, KACHERI AMSOM DESOM P.O.NADAKKAVU, KOZHIKODE.** ## **6. K.K.AALI,** **AGED 49 YEARS, S/O.LATE K.K.BAVA RESIDING AT PARAKKATT THAZHATHU K.K.HOUSE, KACHERI AMSOM DESOM P.O.NADAKKAVU, KOZHIKODE.** **...2/-** ## **RCR.No. 482 of 2011 ( ) -2-** ## **7. K.K.MUSTHAFFA,** **AGED 46 YEARS, S/O.LATE K.K.BAVA RESIDING AT PARAKKATT THAZHATHU K.K.HOUSE, KACHERI AMSOM DESOM P.O.NADAKKAVU, KOZHIKODE.** **BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SRI.K.SANEESH KUMAR** ## **RESPONDENTS / RESPONDENTS / PETITIONERS & 2ND RESPONDENT :** **-----------------------------------------------------------------------------------------------------** **SANTHOSH INDUSTRIAL, KACHERI AMSOM DESOM NADAKKAVU CROSS ROAD P.O.NADAKKAVU KOZHIKODE, ITS PARTNERS:-** ## **1. THAYYILPURAYIL SANTHOSH KUMAR,** **AGED 48 YEARS, S/O.I.K.BALAN PIN-673011.** ## **2. THAYYILPURAYIL SATHEESH KUMAR,** **AGED 42 YEARS, S/O.I.K.BALAN PIN-673011.** ## **3. THAYYILPURAYIL RAJESH KUMAR,** **AGED 38 YEARS, S/O.I.K.BALAN PIN-673011.** ## **4. LALU ALIAS JITHENDRAN,** **S/O.LATE V.V.RAVINDRAN JAYASREE FLOWER STALL 3/518, NADAKKAVU CROSS ROAD KACHERI AMSOM DESOM P.O.NADAKKAVU, KOZHIKODE, PIN -673 011** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10-01-2012 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** PIUS C. KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------RCR.NO. 482 of 2011 --------------------------------Dated this the 10th day of January, 2012 ORDER ## Pius C.Kuriakose,J. Under challenge in this revision filed by the tenants who are the legal heirs of the deceased original tenant is the judgment of the Rent Control Appellant authority confirming the order of eviction passed by the Rent Control Court on the ground of arrears of rent ( section 11(2)(b), need for own occupation 11(3) and the ground of sub letting/unauthorized transfer (11(4)(1). It was submitted at the very outset by Sri. A.Balagopalan, learned counsel for the appellant that this court does not have to be concerned very much with the correctness of the eviction order concurrently passed under section 11(2)(b) as the remedy under section 11(2)(c) is always available to the revision petitioners. Hence we confirm the eviction order under section 11(2)(b) providing that the said eviction order can be got vacated by the revision petitioners invoking section 11(2)(b) within two months from today. RCR.482/2011 2 2. The need projected by the landlords who are conducting an industries unit by Santhosh Industries inter alia dealing with repairs of automobiles is that the petition schedule building which is a bunk shop is obstructing the view of the building where they are conducting their industry to the passers by. Hence they need the petition schedule building to be removed so that their industrial unit can be conducted conveniently. The bonafides of the above need was disputed and it was contended that there is sufficient open space on the western side of the petition schedule building upon which a hoarding is erected. If that hoarding is removed, their industrial shed will become visible to all passers by. The need is only a use for eviction. The revision petitioners alternatively contended that they are entitled for the protection of the second proviso to sub section 3 of section 11. The allegation of the landlord regarding the ground under section 11 (4)(1) was that the 4[th] respondent Lalu alias Jithendran who is presently conducting business in fruit stall under the name and style by Jayasree fruit stall and flower stall, is an unauthorized sub lessee. The defence was that Lalu alias Jithendran is an RCR.482/2011 3 employee of the tenants. The Rent Control Court after holding enquiry in which the evidence consisted for PWs.1 and 2 , Exts. A1 to A5, RWs. 1 and 2, Exts.C1 to C5 would come to the conclusion that the ground under section 11(4)(3) and section 11 (4)(1) stood proved. Accordingly the order of eviction was passed on those grounds. Eventhough the revision petitioners took up the matter before the Rent Control Appellate Authority and the learned appellate authority made a thorough reappraisal of the evidence that authority would concur with all the findings of the Rent Control Court. Accordingly the appeal was dismissed. 3. In this revision filed under section 20 the revision petitioners have raised various grounds assailing the order of eviction passed under section 11(3) and under section 11(4)(1). But Sri. Balagopalan, learned counsel for the revision petitioners addressed submissions before us based on all those grounds. Sri. Balagopalan submitted that Santhosh Industries was not in existence, when the petition schedule building was let out to the revision petitioners. They started the industry long thereafter. They are not entitled to urge that the scheduled bunk which RCR.482/2011 4 existed long before the commencement of the industry should be removed for the convenience and visibility of the shed. He also submitted that at any rate the visibility problem can be solved by removing the hoarding which has been installed on the open space of the western side. In other words the need is something which can be accomplished by the landlord even without evicting the revision petitioners. Learned counsel also submitted that the finding regarding tenant's eligibility of the second proviso to section 11(3) are wrong. As regards sub letting he submitted that convincing oral evidence was adduced by RWs. 1 and 2. The court below went wrong in not accepting such evidence. Learned counsel attacked the finding regarding the bonafides of the need also. 4. We have given our anxious consideration to the submissions addressed at the bar. We are not very much impressed the submission of Sri. Balagopalan that as the industry was started by the landlord subsequently they are not entitled to seek eviction on the ground of visibility. Cases are to be determined with reference to the state of affairs obtaining as on RCR.482/2011 5 the date of commencement of the lis. It is not disputed that at the time when the RCP was instituted the industrial shed had already been put up and was a going concern . Commissioner's reports in this case gave evidence to the effect that the bunk in question obstructed the view of passers by to the industrial shed. The tenant is not entitled to insist that the landlord should remove the hoarding. We can easily gather that the shed is fetching a decent income to the landlord. At any rate having regard to the contours of our jurisdiction under section 20 we do not find any illegality, irregularity and impropriety about the concurrent findings rendered by the two authorities regarding bonafides of the need. Coming to the tenant's right for protection of the 2[nd] proviso we are of the view that having regard to the principles laid down by the Full Bench in **Francis vs. Sreedevi Warassiar (2003(2) KLT 230)** and the Supreme Court's judgment in **Kunhamma vs. Akkali Purushothan (2007(3) KLT 599)** the concurrent decision taken against the tenants cannot be said to be faulty. 5. So also we do not find any infirmity about the eviction RCR.482/2011 6 order concurrently passed under section 11(4)(1). The defence was that the jural relationship between the tenants and the alleged sub tenant is that of employer and employee. The said defence is capable of being substantiated through documentary evidence. In this case not even oral evidence was adduced by the alleged sub lessee and much less not even a scrap of paper was produced to show that there is employer-employee relationship or that any remuneration is being paid to the alleged sub leassee by the tenants. In short we do not find warrant for interference. The revision fails and the same is dismissed. 6. After we pronounced the order learned counsel for the revision petitioners Sri.Balgopalan submitted that in the facts which obtained in this case there is every justification for granting 18 months time to the revision petitioners to surrender possession. Under the above circumstances we are inclined to issue urgent notice to the landlord. Hence issue notice to determine the duration of time to surrender possession. Post after service of notice. In the menwhile execution of the eviction order will stand stayed for a period of two months. ## PIUS C.KURIAKOSE,JUDGE pmn/ C.K.ABDUL REHIM,JUDGE RCR.482/2011 7 RCR.482/2011 8