RCA 9/2009 (Rent Control Appeal) of the Additional District Court, Irinjalakuda; RCP 23/2007 of the Munsiff Court, Kodungallur; RCRev 319/2016 (Rent Control Revision)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938 ## RCRev..No. 319 of 2016 () -------------------------RCA 9/2009 of ADDITIONAL DISTRICT COURT, IRINJALAKUDA RCP 23/2007 of MUNSIFF COURT, KODUNGALLUR ## REVISION PETITIONER(S)/APPELLANTS 1 & 4/ RESPONDENTS 1 & 4: ---------------------------------------------------------- 1. SHANMUGHANANDAN, S/O.VELUKUTTY MAYAJYOTHI TRADERS, ROOM NO.568, WARD NO.13, THEKKENADA, KODUNGALLUR MUNICIPALITY, TRICHUR DIST. 2. SOMAN, S/O.CHELLAPPAN ACHARI ONGATHIL HOUSE, PARVATHI JEWELLERY WORKS, ROOM NO.569, WARD NO.13, THEKKENADA, KODUNGALLUR MUNICIPALITY, TRICHUR DIST. BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH ## RESPONDENT(S)/RESPONDENT & APPELLANTS 2&3/PETITIONER: ------------------------------------------ ## 1. K.S. SUHARABI MUHAMMED, W/O.MUHAMMED KODUNGOOKARAN HOUSE, SABITHA MANZIL, EDAMUTTOM P.O, TRICHUR DIST. 638 002. ## 2. RADHAKRISHNAN, S/O.PARAMESWARN ACHARI THANIKAPARAMBIL HOUSE, MANGALYA JEWELLERY WORKS, ROOM NO.370, WARD NO.13, THEKKENADA, KODUNGALLUR MUNICIPALITY, TRICHUR DIST. 638 002. ## RCRev..No. 319 of 2016 -2- 3. SHALIMON, S/O.KARUNAKARAN EREZUTHU HOUSE, PARVATHY JEWELLERY, WARD NO.13, THEKKENADA, KODUNGALLUR MUNICIPALITY, TRICHUR DIST. 638 003. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - ## R.C.R. 319 of 2016 - - - - - - - - - - - - - - - - Dated 7[th] November, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## A.M.Babu, J - 1.Landlady filed R.C.P 23/2007 seeking eviction of her four tenants from three rooms. Eviction was sought under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short “the Act”). The Rent Control Court, Kodungalloor allowed the petition. R.C.A.9/2009 filed by the tenants was dismissed by the Rent Control Appellate Authority, Irinjalakuda. Two of the tenants have come in revision. - 2.The rent control petition contained three schedules, namely, 'A', 'B' and 'C'. The room shown in the 'A' schedule was leased out to the 1[st] respondent in the RCP. The 2[nd] respondent was the tenant of the 'B' schedule room. The 'C' schedule room was **RCR.319/2016** 2 - tenanted to respondents 3 and 4. The revision is filed by appellants 1 and 4 in the appeal who are respondents 1 and 4 in the RCP. - 3.Heard the learned counsel for the revision petitioners. Perused the order of the Rent Control Court and the judgment of the Appellate Authority. - 4.One rent control petition was filed to evict different tenants, holding different leases, from different rooms. The tenants contended before the Appellate Authority that the rent control petition was bad for misjoinder of causes of action. The Appellate Authority considered it and found against the tenants. - 5.Objection as to misjoinder of causes of action and parties shall be taken at **RCR.319/2016** 3 the earliest opportunity. Lest, court will not interfere unless serious prejudice is caused to the parties. We refer to Jamal v. Safia Beevi (2005 (2) KLT 359). The tenants did not raise the objection of misjoinder of causes of action before the Rent Control Court. It was raised for the first time in the appeal. The objection was not taken at the earliest opportunity. No prejudice was caused to the tenants by reason of defending one petition by all. The Appellate Authority was right in rejecting the contention raised belatedly. - 6.Bona fide need for own occupation was the ground taken for seeking eviction. The courts below found the need to be bona fide. The findings on the first two provisos to Section 11(3) of the Act were also in favour of the landlady. The **RCR.319/2016** 4 power of this Court under Section 20 of the Act is very limited. This Court cannot go beyond checking the legality, regularity and propriety of the concurrent findings of the courts below. - 7.The landlady has two sons. They are Sali and Siddique. Both of them are unemployed. The tenants made an attempt at the trial that Sali and Siddique were partners in many business firms. But the tenants failed to produce evidence to prove the allegation. The landlady wants to accommodate Sali in the 'A' schedule room to enable him to do business in furniture. According to the Landlady, she would remove the common wall between the 'B' and 'C' schedule rooms, so that Siddique could start the business of sale and service of electronic goods. Sali who had studied upto plus one level would be capable of doing business in **RCR.319/2016** 5 furniture as stated by the courts below. Ext.A6 to A8 were relied on by the courts below to hold that Siddique possessed the required technical qualification to run the business of sale and service of electronic goods. It was also found that the landlady was capable of providing funds to her children to start their respective businesses. Absolutely nothing is available to interfere with the concurrent finding of the courts below. - 8.Two rooms were pointed out by the tenants to defeat the landlady under the 1[st] proviso to Section 11(3) of the Act. Both those rooms are not in the same city, town or village. Those rooms are situated in Chavakkad Taluk. Those rooms are not owned by the landlady, but by her husband. In one of those rooms the husband of the landlady was running a **RCR.319/2016** 6 provision shop. He has temporarily stopped it consequent to a heart surgery. He would resume the business. The other room is in the occupation of a tenant. The above findings of the Rent Control Court were upheld by the Appellate Authority. No ground exists to interfere with the said finding too. 9.The courts below found that the tenants failed to prove the 1[st] limb of the second proviso to Section 11(3) of the Act. The Advocate Commissioner saw 14 vacant rooms in the same locality. RW1 (the 1[st] revision petitioner) admitted in evidence that the aforesaid rooms were vacant. The second limb of the second proviso too is not in favour of the tenants. - 10.The revision is liable to be dismissed. The learned counsel for the revision **RCR.319/2016** 7 petitioners sought time to vacate the premises in the event of dismissal of the revision. This request is reasonable. Some time can be granted to the revision petitioners to vacate. We are inclined to give time till 31.03.2017. Such time is granted subject to the following conditions. They shall discharge the arrears of rent (if any) within a period of one month from today. Rent in future shall be paid on or before the 10[th] day of the succeeding month till the tenants vacate the premises. They shall file separate affidavits before the Rent Control Court within a month undertaking to vacate the respective premises on or before 31.03.2017. They shall also undertake in their affidavits that under no circumstance they will seek further extension of time. 8 ## **RCR.319/2016** 11.The revision fails. The same is dismissed. Time is granted till 31.03.2017 to the revision petitioners to vacate the premises provided the conditions insisted on in this order are complied with. If any of the conditions is violated, the benefit given to the tenants under this order shall stand recalled. ## **Sd/K.T.SANKARAN Judge** **Sd/-** **A.M.BABU Judge** Mrcs/28.10.2016 //True copy// P.S to Judge