## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**&**
**THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 2[ND] DAY OF DECEMBER 2022 / 11TH AGRAHAYANA,**
## **1944**
**RCREV. NO. 320 OF 2019**
**AGAINST THE JUDGMENT DATED 13.06.2019 IN RCA NO.52 OF 2014 OF III RENT CONTROL APPELLATE AUTHORITY, THRISSUR CONCURRING WITH THE COMMON ORDER IN RCP NO.71 OF 2009 DATED 31.01.2014 OF RENT CONTROL COURT,CHAVAKKAD**
## **REVISION PETITIONER/APPELLANT/RESPONDENT:**
**MUHAMMED RAFI, AGED 53 YEARS, S/O. PULLIKALAKATH MUHAMMED HABEEBULLA HAJI, PALLIPRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK.**
**BY ADV RAJIT**
## **RESPONDENT/RESPONDENT/PETITIONER:**
**NOORJAHAN, AGED 52 YEARS, W/O. ABDUL RAZAK, PUTHIYAVEETIL HOUSE, NATTIKA VILLAGE, NATTIKA DESOM, NATTIKA P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT 680566.**
**BY ADVS. K.I.SAGEER IBRAHIM**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.**
## **-----------------------------------------------**
## **R.C.Rev. No.320 of 2019**
## **----------------------------------------------Dated this the 2[nd] day of December, 2022.**
## **O R D E R**
## **P.B.Suresh Kumar, J.**
The tenant in a proceedings for eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), is the petitioner in this revision petition.
2. The subject matter of the proceedings is a shop room. The shop room was let out to the tenant on 23.12.2008 on a monthly rent of Rs.850/-. It is alleged by the landlady in the eviction petition that the tenant is not paying rent in respect of the shop room from the month of October, 2009. It is also alleged by the landlady in the eviction petition that she intends to run a textile business in the shop room, after evicting the tenant. The tenant disputed the allegation in the eviction petition regarding arrears of rent. He has also contended that there is no bona fides in the need set out for
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eviction under Section 11(3) of the Act. According to the tenant, the landlady is an affluent person who does not need to do any business and that she does not have the expertise also in the field of textile business. It was also contended by the tenant that two other tenants in the very same building were evicted by the landlady for the very same purpose and after getting eviction of the premises occupied by those tenants, the landlady let out the premises to other tenants and that the need cannot, therefore, be bona fide for that reason also. The Rent Control Court rejected the contentions raised by the tenant and allowed the eviction petition on both grounds. Even though the tenant challenged the decision of the Rent Control Court in appeal, the Appellate Authority affirmed the decision of the Rent Control Court. Hence, this revision.
3. Heard the learned counsel for the tenant.
4. It is seen that after the institution of the eviction petition, the landlady preferred an application under Section 5 of the Act for fixation of fair rent for the premises. The said application was allowed by the Rent Control Court fixing the fair rent of the premises at Rs.2,800/- per month from 01.05.2010. Even though the said decision was
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challenged by the tenant in appeal, the Appellate Authority affirmed the decision. The tenant preferred a revision petition before this Court against the aforesaid decisions of the authorities as R.C.Rev.No.345 of 2019 and in the said revision petition, in terms of an interim order passed by this Court on 21.08.2019, this Court stayed the orders of the authorities below on condition that the tenant shall deposit arrears of the rent upto date at the rate of Rs.1,500/- per month.
5. The learned counsel for the tenant contended that the tenant has deposited the arrears of rent upto date in terms of the interim order passed by this Court on 21.08.2019 in R.C.Rev.No.345 of 2019 and since the tenant is paying rent for the period thereafter also at the rate of Rs.1500/- per month, the authorities below ought not have entertained the eviction petition. The learned counsel has relied on the decision of the Apex Court in **Mohammad Ahmad v. Atma Ram Chauhan** , 2011 KHC 4505, in support of the said proposition. It was also contended by the learned counsel that at any rate, insofar as it was admitted by the landlady that she had instituted proceedings for eviction of two other tenants in the very same building and on getting vacant possession of the
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said premises, she had let out the same to other tenants, the authorities below should have held that there is no bona fides in the claim set out for eviction.
6. We have examined the contentions advanced by the learned counsel for the tenant. We have also perused the records of the case.
7. It is seen that the landlady has instituted two eviction petitions earlier as R.C.P.Nos.30 of 2004 and 31 of 2004 before the Rent Control Court, Chavakkad. Ext.B1 is the certified copy of the eviction petition in R.C.P.No.30 of 2004. A perusal of Ext.B1 would show that it is not an application for eviction on the ground of bona fide need at all. Instead it is an application filed under Sections 11(2) and 11(4)(i). That apart, R.C.P.No.30 of 2004 is not instituted in respect of any room in the building of which the tenanted premises is a part. It is in respect of a shed adjoining the building. Coming to R.C.P.No.31 of 2004, it is of course, in respect of a shop room which is part of the building, of which the tenanted premises is also a part. The materials on record indicate that during the pendency of the said proceedings, based on compromise, the tenants in both the proceedings have surrendered vacant possession of
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the premises to the landlady. As far as the premises which is the subject matter of R.C.P. No.30 of 2004 is concerned, the landlady has categorically stated in her evidence that the said shed is not suitable for the business proposed by her. As far as R.C.P.No.31 of 2004 is concerned, the evidence given by the landlady is to the effect that at the time when she got vacant possession of the premises, as she was suffering from various ailments, she permitted her husband to run spare parts business in that premises. In other words, it is a case where the landlady has established special reasons for not occupying the premises which are the subject matter of R.C.P.Nos.30 of 2004 and 31 of 2004.
8. The contention of the tenant remaining to be considered is that since the landlady obtained an order fixing the fair rent for the premises from 01.05.2010, the application for eviction should not have been entertained by the authorities below. It is seen that in **Mohammad Ahmad,** the Apex Court, while issuing guidelines concerning fixation of fair rent and related matters, held that if the fair rent payable in respect of a premises as fixed between the parties is paid by the tenant, then the landlord shall not be entitled to bring any
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action for eviction at least for a period of five years. The said decision of the Apex Court has no application, according to us, to the facts of the present case as the application for fixation of fair rent is instituted long after the eviction petition. That apart, even though the fair rent was fixed in the said proceedings with effect from 01.05.2010, the same was not paid by the tenant until the eviction was ordered. The eviction was ordered by the Rent Control Court on 31.01.2014 and the order of eviction was affirmed by the Appellate Authority in appeal on 13.06.2019. It was much thereafter on 21.08.2019, that the tenant obtained interim order in R.C.R.No.345 of 2019. We have perused the interim order passed in R.C.R.No.345 of 2019. It is seen that the said interim order was passed on an application preferred by the tenant seeking stay of further proceedings pursuant to the order fixing the fair rent of the premises. The said order reads thus:
“There shall be an interim order of stay as prayed for, on the condition that the revision petitioner shall deposit entire arrears of rent at the rate of Rs.1,500/- (Rupees one thousand and five hundred only) per month until disposal of this matter without fail.”
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As evident from the order extracted above, the direction was issued by this Court in the stay petition. There is nothing on record to indicate that the tenant has paid the rent at the aforesaid rate for the period after 21.08.2019 upto date. In the circumstances, according to us, there is absolutely no merit in the argument advanced by the learned counsel for the tenant that the authorities below ought not have entertained the eviction petition in the light of the order obtained by the landlady for fixation of fair rent in the subsequent proceedings.
The revision petition, in the circumstances, is without merits and the same is, accordingly, dismissed.
Sd/- **P.B.SURESH KUMAR, JUDGE.**
Sd/- **C.S.SUDHA, JUDGE.**
ds 29.11.2022
