M.P MOHAMMED ALI v. P.K NAFEESA ABDULLA (LRs) and 2-4

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 17TH DAY OF JANUARY 2013/27TH POUSHA 1934 RCRev..No. 418 of 2012 () ------------------------- AGAINST THE JUDGMENT IN RCA.157/2004 DATED 22-11-2011 AGAINST THE ORDER IN RCP.36/2003 DATED 30-09-2004 ## REVISION PETITIONER(S)/APPELLANT/RESPONDENT: -------------------------------------------- M.P MOHAMMED ALI, AGED 61 YEARS S/O.ABDUL KHADER,FRUITS BUSINESS,CW 35/1942 M.A.ROAD,KANNUR. BY ADV. SRI.K.RAJESH SUKUMARAN ## RESPONDENT(S)/RESPONDENTS/PETITIONERS: -------------------------------------- 1. P.K NAFEESA ABDULLA(DIED) LR'S 2. ZEENATH AFROZ RAHIM, AGED 60 YEARS D/O.T.T.P.ABDULLAH, RESIDING AT MECCA, NO.368 LYLODS ROAD,CHENNAI-86. 3. P.K.MOHAMMED ABDULLA, AGED 48 YEARS S/O.T.T.P.ABDULLAH, RESIDING AT RAHMATH BAGH BEHIND SALES TAX CHECK POST, KANNUR-670006. 4. P.K.NASSER ABDULLAH, AGED 51 YEARS S/O.T.T.P. ABDULLAH, RESIDING AT NO.368, LYLODS ROAD CHENNAI-86. R2 TO R 4 BY ADV. SRI.NASSER ABDULLAH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCRev..No. 418 of 2012 **ORDER ON I.A.No.3167/2012 & I.A.No.3280/2012 IN I.A.No.3167/2012 IN RCR.No.418/2012** **-------------------------------------------------------------** ## **CLOSED** **17/01/2013 SD/THOTTATHIL B. RADHAKRISHNAN, JUDGE** **SD/A.V.RAMAKRISHNA PILLAI, JUDGE** //TRUE COPY// P.A. TO JUDGE **sou.** ## **THOTTATHIL B. RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = R.C.R No.418 of 2012 = = = = = = = = = = = = = = = = = = = Dated this the 17[th] day of January, 2013 ## **ORDER** ## **Ramakrishna Pillai, J.** The tenant is in revision. 2. Nafeesa Abdulla, late mother of respondents 2 to 4 sought eviction of three tenants, including the revision petitioner herein, occupying three premises under different tenancy arrangements. The petitions were brought under Sections 11(2)(b), 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short, the Act alleging herself to be the owner of the premises which originally belonged to T.K.Ummayya Umma, who is non other than her mother. She alleged that her eldest son requires the petition schedule premises for conducting hosiery and textile business after reconstructing the premises. 3. It was further alleged that the tenants kept the rent in arrears and the lawyer's notice could not evoke any positive response. 4. All the tenants, including the revision petitioner, denied the title of the respondents and resisted the petitions contending that the need alleged is not bona fide. They would also allege that they mainly depend upon the income derived from the business set up in the tenanted premises for their RCR418/12 ## **-:2:-** livelihood and no other buildings are available in the locality to shift their business. They further contended that the buildings does not require reconstruction and the same can be put to use after minor repairs. 5. In addition to that, the revision petitioner and yet another tenant claimed protection under Section 11(17) of the Act on the allegation that their predecessors-in-interest continued in possession of the building, prior to 1940. 6. All the petitions were tried jointly and during trial, PW1 and DWs.1 to 3 were examined. Exts.A1 to A12, Exts.B1 to B6 and Ext.C1 were marked. The trial court, after considering the evidence, ordered eviction of the revision petitioner and another tenant. However, one of the petitions was dismissed. 7. The revision petitioner and the other tenant, who faced the order of eviction, carried the matter in appeal before the Rent Control Appellate Authority. The respondents also filed appeal against the dismissal of the other petition. All the appeals were heard by the Appellate Authority. The eviction orders passed by the learned Rent Controller against the revision petitioner and the other tenant were upheld and the respondents'/ landlords' appeal was allowed by the impugned common order. It is against this judgment, the revision petitioner has come up before us in revision. RCR418/12 ## **-:3:-** 8. Arguments have been heard. The impugned judgment as well as the order of the learned Rent Controller were perused. 9. The records as well as the oral evidence tendered by PW1 reveal that the tenanted premises originally belonged to the family of one Kunhimayan Haji from whom Ummayya Umma, the mother of Nafeesa Abdulla got title to the same. After her death, the building devolved upon Nafeesa Abdulla by virtue of partnership deed of 1998. The title of Nafeesa Abdulla to the tenanted premises is further fortified by Exts.A2, A9 & A12. On the basis of the evidence on record, the courts below were justified in finding that the denial of title set up by the revision petitioner is not bona fide. The Rent Control Appellate Authority has rightly found that there was no substantial ground or sufficient material in support of the plea of the denial of title set up by the revision petitioner. 10. Coming to the need projected, we notice that the case of the respondents/landlords is that the tenanted premises is required for PW1, who is the eldest son of Nafeesa Abdulla, for conducting textile business after reconstructing the tenanted premises. The respondents/landlords had undertaken the onus of establishing their bona fides under Section 11(3). It is in evidence that PW1 is having textile business at Bangalore and Kuthuparamba. That was pointed out as a circumstance by the respondents RCR418/12 ## **-:4:-** to hold that the need projected by the revision petitioner is not genuine. However, the eloquent testimony of PW1 establishes his dependency in respect of the building on his deceased mother as well as the need. The building is situated in a fast developing area. We are not prepared to hold that the need of PW1 is not bona fide. 11. The revision petitioner could not establish that the landlords are having other buildings in the locality suited to their requirements. 12. As rightly pointed out by the Rent Control Appellate Authority, no evidence has been adduced by the revision petitioner which shows that he is depending upon the income derived from the business set up in the petition schedule premises. Also, the revision petitioner could not establish that no other buildings are available in the locality to shift his business. 13. It was argued strenuously by the learned counsel for the revision petitioner that the building is not in a dilapidated condition and, therefore, it does not require reconstruction. We notice that the need projected is to have a suitable building for the proposed business of PW1 after demolishing the existing building. Under such a situation, it is not necessary to establish that the building is in a dilapidated or dangerous for human habitation. The intention of the landlords to effect reconstruction is borne out by Ext.A6 series which are the building permits and plan approved by the local authority. RCR418/12 ## **-:5:-** 14. Though the revision petitioner has raised a further contention that he is entitled to the protection under Section 11(17) of the Act, the learned Rent Control Appellate Authority following the decision of this Court in **Prabhakaran** v. **Sulaikabi** [2007 (2) KLT 103] repelled the said contention. 15. On a totality of the entire facts and circumstances now placed on record, we are of the view that both the courts below have appreciated the evidence in its correct perspective and the order of eviction is legally sustainable. As there is no demonstrable reason warranting an interference by this Court under Section 20 of the Act, the revision fails. In the result, the revision is dismissed. When our decision was made known to the learned counsel for the revision petitioner, he requested six months' time to surrender vacant possession of the petition schedule premises to the respondents. The said request was opposed tooth and nail by the learned counsel for the respondents. After considering all the relevant circumstances of the case, we are of the view that the revision petitioner be granted three months' time. Hence, we direct the execution court to keep the delivery in abeyance for a period of three months, subject to the following conditions: (a) The entire arrears of rent shall be paid by the revision petitioner to the respondents/landlords within one month from today and the RCR418/12 ## **-:6:-** receipt thereof shall be produced before the Rent Control Court or the Execution court as the case may be, without fail; - (b) The revision petitioner shall file an affidavit, within three weeks from today before the Execution Court or the Rent Control Court as the case may be, undertaking to surrender vacant possession of the petition schedule building peacefully to the landlords on or before 31.03.2013 and he will continue to pay occupational charges at the current rent rate till the date of actual surrender of the building to the landlords. We make it clear that the tenant will get the benefit of time granted as above, only if he files the affidavit on time and honours the undertakings contained therein. ## sd/- **THOTTATHIL B. RADHAKRISHNAN JUDGE** sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A. TO JUDGE krj