K.T. Asyaumma and Others v. I.V. Ramakrishna Naidu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** **RCRev..No. 303 of 2014 ()** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 9/2010 of RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT - II), KALPETTA, WAYANAD DATED 30.9.2014** **AGAINST THE ORDER/JUDGMENT IN RCP 5/2000 of RENT CONTROLLER (MUNSIFF MAGISTRATE), MANANTHAVADY DATED 30.8.2010** ## **REVISION PETITIONER(S)/RESPONDENTS R2-11:** **----------------------------------------** ## **1. K.T.ASYAUMMA** **W/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR. (DIED) LEGAL HEIRS RECORDED** ## **2. K.T.LATHEEF,** **S/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** ## **3. K.T.BASHEER,** **S/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** ## **4. K.T.SHAHUL HAMEED,** **S/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** ## **5. K.T.NASEEMA,** **W/O.USSU, D/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** ## **6. K.T.RAFI,** **S/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** ## **7. K.T.THESLI, W/O.ABOOTTTY,** **D/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** **RCRev..No. 303 of 2014 ()** ## **8. K.T.IQBAL,** **S/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** ## **9. K.T.NAZAR,** **S/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** ## **10. K.T.FOUSIYA,** **W/O.IBRAHIM, D/O.LATE P.P.ABDUL KHADER HAJI, "THAYIF MANZIL", ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA P.O., KANNUR.** **[REVISION PETITIONER NO.1 IS DEAD** **REVISION PETITIONERS 2 TO 10 ARE RECORDED AS HER LEGAL HEIRS VIDE ORDER DATED 29.1.2016 IN I.A.No.219/2016]** **BY ADVS.SRI.P.C.CHACKO(PARATHANAM) SMT. ASHA P KURIAKOSE** ## **RESPONDENT(S)/APPELLANT/PETITIONER:** **-----------------------------------** ## **I.V.RAMAKRISHNA NAIDU** **DOWN BAZAR, MANANTHAVADY, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.P.MUKUNDAN, DEEPALAYAM, DOWN BAZAR, MANANTHAVADY - 670 645.** **BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **SHG/** ## **K. HARILAL & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.303 of 2014** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of June, 2017** ## **O R D E R** ## **Jyothindranath, J.** Tenants are the revision petitioners. 2. The facts necessary for consideration of this revision petition is as follows: R.C.P.No.5/2000 was field by the respondent/landlord herein under Sections 11 (3) 11 (4) (i) and 11 (4) (iii) of the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') for getting eviction of the petition scheduled building. Originally, P.P.Abdul Khader Haji was the respondent/tenant in the petition. Pending consideration, the original respondent/tenant died and his legal heirs are impleaded as supplemental respondents Nos.2 to 11 before the Court of Rent Controller (Munsiff Magistrate), Mananthavady. The said petition was dismissed by the Rent Controller Court. Aggrieved by the said dismissal, the landlord filed an appeal before the appellate court. The lower appellate court upheld the R.C.R.No.303 of 2014 2 dismissal of the petition on the ground under Section 11 (3) and 11 (4) (i) of the Act whereas the appellate court allowed the petition under Section 11 (4) (iii) of the Act. Aggrieved by the said appellate court judgment, this revision petition is filed by the tenants. 3. When the revision petition came up for hearing, the learned counsel appearing for the revision petitioners submitted before us that the appreciation as well as the finding of the appellate court is perverse and illegal and an interference by this court is warranted. It is submitted before us that the appellate court relied on Ext.A7 which is only a document produced at the appellate stage to show that one among the revision petitioners came in possession of a new premises. There is also no proper pleading to get an eviction under Section 11(4) (iii) of the Act. It is also the submission that when the document is admitted, the proper procedure that should have been adopted by the appellate court is that to pass an order to permit the respondent to amend the original petition before the Rent Control Court R.C.R.No.303 of 2014 3 as held in **Om Prakash Gupta v. Ranbir B.Goyal [(2002) 2 SCC 256]** . The Ext.A7 will show that the acquisition is by a partnership firm wherein only one among the revision petitioners is a partner. It is also submitted before us that as per the dictum laid down by this court in **Abdussalam v. Bhaskaran [2005 (3) KLT 71]** when the building came in possession was actually acquired by a partnership firm, it cannot be considered that there is an acquisition of a vacant possession of a building by a partner of the said firm. It is the further submission that the finding of the Rent Control Court should not have been altered by the appellate court. 4. The learned counsel appearing for the respondent herein submitted before us that in this case the appellate court re-appreciated the evidence and considering Ext.A4 series and Ext.A7 allowed petition under Section 11 (4) (iii) of the Act. Ext.A4 series is an extract of the Building Tax Assessment Register which stands in the name of late Sri. P.P.Abdul Khader Haji, who was the original tenant against whom the eviction petition was filed. The document was 4 R.C.R.No.303 of 2014 produced at the initial period of the proceedings itself. It can be seen that there was vacant possession of an array of building rooms in the name of the deceased P.P.Abdul Khader Haji. 5. After hearing the counsel, we perused the judgments and documents in this case. It is the case of the revision petitioners that a power of attorney holder was examined on behalf of the landlord. It is to be remembered that the challenge is against an eviction order passed under Section 11(4) (iii) of the Act and not one under Section 11 (3) of the Act. Therefore, is no merit in the said contention. Next point to be considered is regarding pleadings. We perused the petition and it can be seen that in paragraph 4 of the petition, it is categorically stated that “further the respondent has acquired and has in possession of many shop rooms and residential buildings which he had let out for rent”. Further it can be seen that the Rent Controller Court framed specific issue as point No.6 and considered the contentions in this regard. In the appeal also R.C.R.No.303 of 2014 5 point No.3 is in respect of this contention. It is the settled position that a detailed pleading is not necessary in respect of the heads on which vacant possession is claimed. In **Fathima Beevi v. Stella John [2006 (2) KLT 285]** this court held that there is no insistence of meticulous pleadings in a proceeding under the Act. Thus, there is no force in the submission in this regard. 6. Now the main point to be considered is regarding whether the tenant has in his possession a building or subsequently acquired possession or put up a building reasonably sufficient to his requirement in the same city, town or village. The case of the revision petitioners is that landlord has not succeeded on this count. But at the very same time it can be seen that at the time of filing the petition before the Rent Controller itself Annexure A4 extract is seen produced by the petitioner. On perusal of Ext.A4 series, it can be seen that it was for the period of 2000 in which the original petition was filed. It can be seen that primary burden upon the petitioner that the R.C.R.No.303 of 2014 6 respondent is having in his possession a building is seen discharged. Surely the case of the revision petitioner is that he had taken a commission to show that the said building was not in the direct possession of the tenant. The commission was inspected the building only on 16.1.2009. As per the supplemental counter filed by respondents 2 to 11, who were impleaded as respondents after the death of the original tenant, contended in the counter in paragraph 7 that “ÙV¼ßÉGßµ ÎáùßÏßW ØÉïßæÎaW ®ÄßVµfßµZ È¿JßÕøáK R®¿JßW µÞÄßøß ¦aí ØYØíQ ®K ÉܺøAí ¥ÈÞÆß µºîÕ¿¢ ÎÞÈLÕÞ¿ßÏßæÜ Õ{æø ÉáøÞÄÈÎÞÏ ÉܺøAí µºîÕ¿¢ ¦µáKá. ¨ ®Äcµfßµ{áç¿ÏᢠÎáX·ÞÎßµ{áç¿Ïᢠ©É¼àÕÈÎÞV·Õᢠ¥¿ßØíÅÞÈÕᢠçÎM¿ß µºîÕ¿ÎÞÃí.å²KÞ¢ ®ÄßVµfß 2002_W ÎøÃæMGÄßÈáçÖ×¢ ÈßøÞÜ¢ÌÏÞÏ ®æaÏᢠ¯xÕᢠ§{Ï ÎµÈÞÏ ØÉïßæÎaí 10_Þ¢ ®ÄßVµfß ÈÞØùßæaÏᢠ©É¼àÕÈJßÈí ÙV¼ßMGßµ ÎáùßÏßÜáU ¥ÈÞÆß µºîÕ¿¢ ÎÞdÄÎÞÃí ¯µ ¦dÖÏ¢. ØÉïßæÎaí 10_Þ¢ ®ÄßVµfß ÈÞØV ÙV¼ßÉGßµÎáùßÏßæÜ µºîÕ¿¢ ®ÈßAáçÕIß çÈÞAßÈ¿JßÕøáKÄᢠ¦µáKá.åÎÞÈLÕÞ¿ß ÉGÃJßW ¾BZAí µºîÕ¿¢ æºÏîáÕÞX çÕæù ÎáùßµZ µßGÞX ØÞicÎÜï.åÙV¼ßMGßµ ÎáùßÏßÜáU R®¿JßW µÞÄßøß R.C.R.No.303 of 2014 7 ¦aí ØYØíQ ®K ÉܺøAí µ¿ÏíAí ÉáøÞÄÈÎÞÏáU çÉøᢠÉÞøOøcÕᢠ·áÁí ÕßÜïᢠÙV¼ßMGßµ Îáùß ²ÝßEáæµÞ¿áçAIÄÞÏß ÕKÞW È×í¿æM¿áKÄᢠ¦µáKá.” The case of the supplemental respondents is that now supplemental respondent No.10 is actually conducting the business. It is the case of the respondents that the building shown in Annexure A4 series is actually not vacant and not available for shifting the business. As per the said commission report, it can be seen that shop room no.V/1266, V/1267, V/1268, V/1269, V/1270 and V/1271 are possessed by P.C. Chandran, Sunil Settu, Vishnu N.K., Ananthan, Sunil Settu, Sunil respectively and it is also noted therein that the said rooms are not suitable to conduct the business. There are altogether 12 rooms, in respect of the said rooms as well as two rooms on the upstairs are alone reported as not suitable for shifting the business. Actually the burden is heavy upon the tenants to show that no building was in their possession, they are not in possession or subsequently acquired possession of any building reasonably sufficient for their requirement. R.C.R.No.303 of 2014 8 Admittedly as per the said report revision petitioners No.6 and 8 (supplemental respondent Nos.7 and 9 in the Rent Control Petition) are conducting business in the building to which Ext.A4 series relates. This fact stated in the commission report is a strong point against the revision petitioner When, as per Ext.A4 series, the building room were in the vacant possession of late P.P.Abdul Khader Haji during 2000 period, it is the revision petitioners herein to show that Ext.A4 series document is not helpful to draw an inference entailing an order of eviction under Section 11 (4) (iii) of the Act. It is to be remembered that Ext.A4 series covers 12 rooms. Evidently that burden is not seen discharged by the revision petitioners herein. The Commissioner's report will only show the status of building room at the time of inspection. Under such circumstances, it cannot be said that the finding of the appellate court is perverse or illegal. There is no merit in the revision petition. Hence the Rent Control Revision is dismissed. 7. At this juncture, the learned counsel for the R.C.R.No.303 of 2014 9 revision petitioners sought for six months' time to surrender the petition schedule shop rooms. The learned counsel for the respondent opposed the said request. But, this Court is of the view that a reasonable time can be given to the revision petitioners to surrender the petition schedule shop rooms, on terms. The revision petitioners shall surrender the petition schedule shop rooms within six months from today, provided that they could comply the conditions given below within the specified time: - (i) The respondent in the Rent Control Petition shall file an affidavit within a period of three weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated on or before 20.12.2017. - (ii) The respondents/tenants shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case R.C.R.No.303 of 2014 10 may be, within a period of two months from the date of receipt of a copy of this order and shall continue to pay rent without default. - (iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically repealed and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order. This Rent Control Revision is dismissed accordingly. Sd/- ## **K. HARILAL JUDGE** Sd/- ## **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/