Pakkayil Ibrahim v Malol Abdurahiman and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** **RCRev.No. 24 of 2016** **AGAINST THE ORDER/JUDGMENT IN RCA 36/2012 of ADDL. DISTRICT & SESSIONS COURT, VATAKARA** **AGAINST THE ORDER/JUDGMENT IN RCP 106/2007 of MUNSIFF COURT, VATAKARA** **- PETITIONER/TENANT/APPELLANT IN RCA NO.36/2012 APPELLATE AUTHORITY – – ADDL.DISTRICT JUDGE, VATAKARA / RESPONDENT IN RCP 106/2007 RENT CONTROL (MUNSIFF) COURT, VATAKARA:** **PAKKAYIL IBRAHIM AGED 64 YEARS S/O. ABDURAHIMAN, TRADER, RESIDING AT KEYPEES HOUSE, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **RESPONDENT/LANDLORD/RESPONDENT IN RCA NO.36/2012-APPELLATE AUTHORITY – ADDL.DISTRICT JUDGE, VATAKARA/PETITIONER IN RCP NO.106/2007 – RENT CONTROL (MUNSIFF) COURT, VATAKARA:** **1 MALOL ABDURAHIMAN AGED 75 YEARS S/O. MAYIN KUTTY, RESIDING AT MALOL, ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. (DIED) *2 NAFEESA W/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673101.** 2 **RCRev.No. 24 of 2016** - ***3 SHAMSUDHEEN** **S/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT673101.** - ***4 BASHEER** - **S/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT673101.** - ***5 MUHAMMED S/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT673101.** - ***6 THAHIRA D/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT673101.** - ***7 ISMAIL** **S/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT673101.** - ***8 NASEEMA D/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT673101.** - ***9 RAHEEMA D/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT673101.** - ***10 NAJEEMA** **D/O LATE MALOL ABDURAHIMAN, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT673101.** *** ADDITIONAL RESPONDENTS 2 TO 10 ARE IMPLEADED AS PER ORDER DATED 11/10/2018 IN IA.01/2018 IN RCR 24/2016)** **BY ADVS. SRI.K.K.ANILRAJ SRI.U.K.DEVIDAS** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 **RCRev.No. 24 of 2016** ## **O R D E R** ## K. Harilal,J. The revision petitioner is the tenant against whom an order of eviction has been passed concurrently u/s 11(3) of the Kerala Building Lease and Rent Control Act by the courts below. The parties are referred to as in the Rent Control Petition. 2. The petitioner filed Rent Control Petition No.106 of 2007 before the Rent Control Court, Vatakara seeking an order of eviction under Section 11(3)of the Kerala Buildings(Lease and Rent Control) Act ('the Act' for short) on the ground that he _bonafide_ needs the petition schedule shop room for starting a textile business. According to him, he was doing textile business at Dubai. On account of the closure of his business at Dubai, he was constrained to return to his home town and he has no other business or avocation to eke out his livelihood. Therefore, the petition schedule shop room is required for starting a textile business. 3. The respondent resisted the said claim for eviction on the ground that the need projected is not _bonafide_ and it is a ruse for eviction only. He claimed protection under 4 ## **RCRev.No. 24 of 2016** the second proviso to Section 11(3) of the Act. The Rent Control Court, after considering the evidence on record, allowed the Rent Control Petition and passed an order of eviction under section 11(3) of the Act. Though the respondent had filed RCA No.36 of 2012 before the Rent Control Appellate Authority, Vatakara after re-appreciating the evidence on record, the Appellate Authority also concurred with the findings of the Rent control Court and confirmed order of eviction passed under section 11(3) of the Act. Thus, the concurrent findings under Section 11(3) of the Act are challenged in this revision. 4. During the pendency of this Revision Petition, on 16/01/2017, the first respondent landlord died and his legal heirs were impleaded as respondents 2 to 10. In view of the death of the original landlord, the preliminary question to be considered in this Revision Petition is “does the cause of action based on _bonafide_ need survive after the death of the land lord?”. The learned counsel for the revision petitioner relied on the decisions reported in **Seshambal v. Chelur Corporation** [2010 (1) KLT 834] and argued that in view of the pleadings disclosing the requirement for the petition 5 ## **RCRev.No. 24 of 2016** schedule shop room, the cause of action based on _bonafide_ need will not survive after the death of the landlord. Hence, the suit is liable to be dismissed as abated. On the other hand, the learned counsel for the respondent submits that even if the cause of action is based on the _bonafide_ need of the landlord alone, the cause of action would survive after the death of the landlord and the same will not be abated by the death of the landlord, even if the need was for the land lord alone. In support of the said argument, the learned counsel placed reliance on the decisions in **Alavi K.P** v **. Jameela P.P. & Others** [2014 (1) KLJ 318] and **Narayanan** v. **Tahira** [2009 (3) KLT 749] 5. In view of the submissions at the Bar, we have meticulously gone through the pleadings in the Rent Control Petition. In paragraph 4, it is specifically pleaded that the petitioner has conducted textile and readymade business in partnership in Dubai for more than 15 years and now he has returned from the said place with an intention to do textile and readymade business of his own at Vatakara town. The town is very near to his home place. He is not going back to gulf country any more. The petitioner submits that he does'nt 6 ## **RCRev.No. 24 of 2016** have any job or sufficient income now and he _bonafide_ requires a vacant possession of the petition schedule shop room to start a business in textile and readymade to earn income to meet his requirements. After an earlier remand, the petitioner has added one more paragraph to the original pleadings by way of amendments and the amended pleadings reads thus: “The petitioner had worked in the textile shop in the owner ship of his sponsor Arabi Mr.Zam Zam Mirzook at Dubai. The textile business was conducted under the name and style Zam Zam Mirzook Textiles. The petitioner had fractional share in the business. The petitioner or his wife have no business or sufficient income.” 6. On an examination of the pleadings, we are of the opinion that the need projected in the petition is for the occupation of the landlord alone. Unlike the facts in the decisions **Alavi K.P** v **. Jameela P.P. & Others** [2014 (1) KLJ 318] and **Narayanan** v. **Tahira** [2009 (3) KLT 749], there is no pleadings to the effect that petitioner or any other member of his family required the petition schedule building for starting the textile business. On the other hand, in **Narayanan** v. **Tahira** [2009 (3) KLT 749], the husband of the landlady died and thereafter, the landlady filed I.A to amend RCP to the effect that notwithstanding the death of her 7 ## **RCRev.No. 24 of 2016** husband she requires the petition schedule shop room to conduct a hotel business and the tenant also filed a counter affidavit opposing the said need of the wife of the original landlord. In **Alavi K.P** v **. Jameela P.P. & Others** [2014 (3) KLJ 318], it is specifically pleaded that the schedule building is required for the landlord for starting a publication unit and the library for the purpose of research students, mainly for the livelyhood of the family and that too, with the help of his sons and in-laws. 7. In the above analysis, we find that the facts of the instant case cannot be compared with the facts in **Alavi K.P** v **. Jameela P.P. & Others** [2014 (1) KLJ 318] and **Narayanan** v. **Tahira** [2009 (3) KLT 749]. Therefore, the proposition laid down in the aforesaid decision in view of the particular facts of that case cannot be taken as a ratio _decidendi_ which can be applied to the instant case. We find that, in view of the pleadings in the Rent Control Petition which is confined to the own occupation of the deceased landlord alone, the cause of action based on the _bonafide_ need will not survive after the death of the landlord. Therefore, the _bonafide_ need will stand abated; but we are of 8 ## **RCRev.No. 24 of 2016** the opinion that the legal heirs of the deceased landlord can be given an opportunity to amend the Rent Control Petition, if they also _bonafide_ require the petition schedule shop room for their own occupation. 8. In the above view, the impugned judgments passed by the courts below will stand set aside and the Rent Control petition is remitted to the Rent Control Court for fresh disposal, if the legal heirs of the deceased landlord proceeds with the amendment, within one month from the date of appearance before the Rent Control Court. If the legal heirs proceed with the Rent Control petition, the same shall be disposed of at the earliest, at any rate within a period of three months from the date of their appearance. The parties shall appear before the Rent Control Court, Vadakara on 01/02/2019. This Revision Petition is disposed of as above. **Sd/-** **K. HARILAL JUDGE** **Sd/-** **ANNIE JOHN JUDGE** PV