Nafeesa @ Beebinhi v C.T. Jameela and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 9TH DAY OF JUNE 2017/19TH JYAISHTA, 1939** **RCRev..No. 142 of 2012 ------------------------** **AGAINST THE JUDGMENT IN RCA 10/2010 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KASARAGOD DATED 14-02-2012.** **AGAINST THE ORDER IN RCP 24/2001 OF THE RENT CONTROLLER (PRINCIPAL MUNSIFF), KASARAGOD, DATED 25-2-2010.** **REVISION PETITIONERS/APPELLANTS IN R.C.A. - RESPONDENTS 1 TO 4 & 6 & 8 IN R.C.P:** **-------------------------------------------------------------------** ## **1. NAFEESA @ BEEBINHI,** **(WRONGLY SHOWN IN THE ORDER OF THE RENT CONTROL COURT AS 'BEEFATHIMA ALIAS BEEBINNI), W/O.LATE HAJI T.K.ABDULRAHIMAN, RESIDING AT THALANGARA, THALANGARA VILLAGE, KASARAGOD TALUK, P.O THALANGARA-PIN 671 122.** **2. ZOHRA, D/O.LATE HAJI T.K.ABDULRAHIMAN AND W/O.LATE MOHAMMEDKUNHI, RESIDING AT KOLLAMPADY JUMA MASJID ROAD, ANANGOOR, VIDYANAGAR POST, KASARAGOD-671 123.** **3. AYSHA, D/O.LATE HAJI T.K.ABDULRAHIMAN AND W/O.ABDULLA, RESIDING AT JADEED ROAD, THALANGARA, THALANGARA VILLAGE, KASARAGOD TALUK, P.O THALANGARA-PIN 671 122.** **4. MAJEED, S/O.LATE HAJI T.K.ABDULRAHIMAN, RESIDING AT THALANGARA, THALANGARA VILLAGE, KASARAGOD TALUK, P.O THALANGARA-PIN 671 122.** **5. MUNEER, S/O.LATE HAJI T.K.ABDULRAHIMAN, RESIDING AT THALANGARA, THALANGARA VILLAGE, KASARAGOD TALUK, P.O THALANGARA-PIN 671 122.** **.......2** **-2-** **6. SALAM, S/O.LATE T.K.ABDULRAHIMAN, RESIDING AT THALANGARA, THALANGARA VILLAGE, KASARAGOD TALUK, P.O THALANGARA-PIN 671 122** **BY ADVS.SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN** **RESPONDENTS/RESPONDENTS IN R.C.A. - PETITIONERS & RESPONDENTS 5 AND 7 IN R.C.P.:** **-------------------------------------------------------------------** ## **1. C.T.JAMEELA,** - **D/O.LATE BEEFATHUMMA AND C.T ABBASKUTTY HAJI, RESIDING AT KASARAGOD IN KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND DISTRICT KASARAGOD-671 121.** ## **2. AMEER ALI,** - **S/O.LATE BEEFATHUMMA AND C.T ABBASKUTTY HAJI,** - **RESIDING AT KASARAGOD IN KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND DISTRICT KASARAGOD-671 121.** **3. MUHAMMED MUSTHAFA, S/O.LATE BEEFATHUMMA AND C.T ABBASKUTTY HAJI, RESIDING AT KASARAGOD IN KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND DISTRICT KASARAGOD-671 121.** **4. ABDUL MUNEER ALI,** - **S/O.LATE BEEFATHUMMA AND C.T ABBASKUTTY HAJI, RESIDING AT KASARAGOD IN KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND DISTRICT KASARAGOD-671 121.** **5. MARIYAMBI, D/O.LATE BEEFATHUMMA AND C.T ABBASKUTTY HAJI, RESIDING AT KASARAGOD IN KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND DISTRICT KASARAGOD-671 121.** **6. ABDUL MANZOOR, S/O.LATE BEEFATHUMMA AND C.T ABBASKUTTY HAJI, RESIDING AT KASARAGOD IN KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND DISTRICT KASARAGOD-671 121.** **7. THAHIRA, D/O.LATE BEEFATHUMMA AND C.T ABBASKUTTY HAJI, RESIDING AT KASARAGOD IN KASARAGOD KASBA VILLAGE,** **KASARAGOD TALUK AND DISTRICT KASARAGOD-671 121.** **.....3** **-3-** ## **8. AFFEEDA,** **D/O.LATE BEEFATHUMMA AND C.T ABBASKUTTY HAJI, RESIDING AT KASARAGOD IN KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND DISTRICT KASARAGOD-671 121.** ## **9. MOHAMMEDKUMNHI,** **S/O.LATE HAJI T.K.ABDULRAHIMAN, RESIDING AT THALANGARA, THALANGARA VILLAGE, KASARAGOD TALUK, P.O THALANGARA,PIN 671 122.** **10. HAMEED, S/O.LATE HAJI T.K.ABDULRAHIMAN, RESIDING AT THALANGARA, THALANGARA VILLAGE, KASARAGOD TALUK P.O THALANGARA,PIN 671 122.** **R1-R8 BY ADV. SRI.D.KRISHNA PRASAD ADV. SMT.S.SANTHY ADV. SMT.MINI V.MENON ADV. SMT.O.K.SANTHA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## _**K. HARILAL & P. SOMARAJAN., JJ.**_ _**--------------------------------------------------------R.C.R. No.142 of 2012-C ---------------------------------------------------------Dated this the 9[th] day of June, 2017**_ ## _**ORDER**_ ## _**Harilal, J.**_ The revision petitioners are the tenants who are confronting with an order of eviction under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). In the earlier round of litigation, when the matter has come up before this Court, this Court remanded the case back to the trial court, for fresh consideration, on the question, whether the claim for eviction was hit by the first proviso to Sec.11(3) of the Act. The parties were allowed to amend their respective pleadings also with respect to the first proviso to Sec.11(3) of the Act. _**R.C.R. No.142 of 2012**_ -: 2 :- After the amendment, the Rent Control Court considered the petition afresh, in view of the evidence available, on record, and found that the claim for eviction is not hit by the first proviso to Sec.11(3) of the Act. Feeling aggrieved, the tenants had preferred an appeal and, in appeal, after reappreciating the evidence, on record, the Appellate Authority also confirmed the findings of the trial court and dismissed the appeal. Thus, the legality and propriety of the concurrent findings, under the first proviso to Sec.11(3) of the Act, have come up again before this Court under the revisional jurisdiction. 2. Heard the learned counsel for the revision petitioners and the learned counsel appearing for the respondents. 3. The parties are referred to as in the Rent Control Petition. It is the case of the tenants that, at the time of filing the Rent Control Petition, the _**R.C.R. No.142 of 2012**_ -: 3 :- landlords had been in vacant possession of the buildings disclosed by Exts.B1, B2, B6, B8, B9, B13, B14 and B16 and B3, B4, B7, B10, B11, B12 and B15. But, the courts below have not meticulously considered the occupancy of the aforesaid buildings, at the time of filing the petition, in its correct perspective. On the other hand, the landlords contend that the courts below have meticulously analysed each and every shop room pointed out by the tenants and found that none of those shop rooms are vacant and suitable for the requirement of the landlords at the time of filing the petition. 4. We have meticulously gone through the concurrent findings of the courts below. As rightly submitted by the learned counsel for the landlords, the courts below have meticulously considered the possession of each and every shop room in view of the Commission Report and found that, at the time of filing the Rent Control Petition, those shop rooms _**R.C.R. No.142 of 2012**_ -: 4 :- were occupied by different tenants. In Ext.C1 Commission Report, the Commissioner has specifically stated that those shop rooms are occupied by different tenants. No other contra evidence was adduced by the tenants. In the absence of contra evidence, the courts below are justified in relying on the Commission Report and the oral evidence tendered by the fourth petitioner as P.W.1. 5. Being a revision, filed under Sec.20 of the Act, this Court is not inclined to re-appreciate the entire evidence, on record, as the revision is not an appeal in this disguise. The concurrent findings, on factual issues, cannot be interfered with under the revisional jurisdiction, unless it is found that the courts below have failed to consider the relevant evidence or placed reliance on irrelevant evidence. The said view is supported by the decision of this Court in _**Lekshmi v. Labbaha Kunju Ameer [2005**_ _**R.C.R. No.142 of 2012**_ -: 5 :- _**KHC 1017].**_ Here, the revision petitioners have no such case that the courts below have placed reliance on irrelevant evidence or failed to consider the relevant evidence or evidence was appreciated on an erroneous or illegal proposition of law. Therefore, we are not inclined to interfere with the concurrent findings of the courts below with respect to the first proviso to Sec.11(3) of the Act, when the courts below concurrently and unambiguously found that Exts.B1 to B17 and C1 and C2 reports would not disclose the existence of any vacant building in the possession of the landlords at the time of filing the Rent Control Petition. 6. In the above view, we find that there is no reason to interfere with the concurrent impugned judgments under challenge and we dismiss this Rent Control Revision. 7. At last, the learned counsel for the revision petitioners sought for some time to surrender the _**R.C.R. No.142 of 2012**_ -: 6 :- petition schedule shop rooms. The learned counsel for the respondents 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 a period of six months from today, provided that they could comply the conditions given below within the specified time: (i) The respondents in the Rent Control Petition shall file an affidavit within a period of two 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 31.12.2017. (ii) The respondents/tenants shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of one month from the date of receipt of a copy of this order and shall ## _**R.C.R. No.142 of 2012**_ -: 7 :- 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 petitioners/landlords will be at liberty to proceed with the execution of the eviction order. _**Sd/-**_ _**(K.HARILAL, JUDGE)**_ Sd/- _**(P. SOMARAJAN, JUDGE)**_ _**Nan/ //true copy//**_ _**P.S. To Judge**_