RCRev. Nos. 107, 108 & 109 of 2023

RCRev.107, 108 & 109 of 2023 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 RCREV. NO. 109 OF 2023 ``` ``` RCP NO.44/2016 OF THE RENT CONTROL COURT (MUNSIFF COURT), PARAPPANANGADI RCA 17/2021 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE II) MANJERI ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` PRAHLADAN, AGED 54 YEARS S/O. KALLATTUPARAMBIL KUNCHUVELAYUDHAN, DEVATHIYAL, THENHIPPALAM P.O.,THENHIPPALAM AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 673636 BY ADVS. K.P.SUDHEER P.ANIRUDHAN ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` KUNHATHUTTY UMMA, AGED 78 YEARS W/O. AHAMMED, D/O. MANNINGACHALI KOMU HAJI, THURAKKAL P.O., KONDOTTY AMSOM, KOLATHUR DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN - 673638 ``` ``` BY SRI.JAMSHEED HAFIZ ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH RCRev..107/2023 AND 108/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCRev.107, 108 & 109 of 2023 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 RCREV. NO. 107 OF 2023 ``` ``` RCP NO.41/2016 OF THE RENT CONTROL COURT (MUNSIFF COURT), PARAPPANANGADI RCA 16/2021 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE II) MANJERI ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` HASHIM, AGED 43 YEARS S/O. CHENAKKAL MUHAMMED, PALLIKKAL AMSOM, DESOM, PALLIKKAL P.O., KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN - 673634 ``` ``` BY ADVS. K.P.SUDHEER P.ANIRUDHAN ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` KUNHATHUTTY UMMA, AGED 78 YEARS W/O. AHAMMED, D/O. MANNINGACHALI KOMU HAJI, THURAKKAL P.O., KONDOTTY AMSOM, KOLATHUR DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN - 673638 ``` ``` BY SRI. JAMSHEED HAFIZ ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH RCRev..109/2023 AND 108/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCRev.107, 108 & 109 of 2023 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & ``` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 RCREV. NO. 108 OF 2023 RCP NO.45/2016 OF THE RENT CONTROL COURT (MUNSIFF COURT), PARAPPANANGADI RCA 18/2021 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE II) MANJERI ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` KALARIVAYIL SATHEESHAN AGED 55 YEARS,S/O. N.C. BALAKRISHNAN NAIR, PALLIKKAL AMSOM, PUTHUR DESOM, PUTHURPALLIKKAL P.O., KONDOTTY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER KALARIVAYIL MANOJAN, S/O. N.C. BALAKRISHNAN NAIR, AGED 50 YEARS, PALLIKKAL AMSOM, PUTHUR DESOM, PUTHURPALLIKKAL P.O., KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN – 673636. BY ADVS. K.P.SUDHEER P.ANIRUDHAN ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` KUNHATHUTTY UMMA AGED 78 YEARS, W/O. AHAMMED, D/O. MANNINGACHALI KOMU HAJI,THURAKKAL P.O., KONDOTTY AMSOM,KOLATHUR DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN - 673638 BY SRI. JAMSHEED HAFIZ ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH RCRev..109/2023 AND 107/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCRev.107, 108 & 109 of 2023 4 ## **A.K.JAYASANKARAN NAMBIAR** ## **&** ## **MOHAMMED NIAS C.P., JJ** **.........................................................…..** **RCRev. Nos.107, 108 and 109 of 2023 .........................................................…..** Dated this the 27[th] day of July, 2023 ## **O R D E R** ## Mohammed Nias C.P., J. These revision petitions are preferred by the tenants/respondents in RCP Nos.41/2016, 45/2016, and 44/2016 on the files of the Rent Control Court (Munsiff Court), Parappanangadi, aggrieved by the judgment of the Rent Control Appellate Authority (Additional District Judge-II), Manjeri in RCA Nos.16/2021, 18/2021 and 17/2021 that affirmed the orders of eviction passed against them. 2. The landlord (respondent herein) filed a petition under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’) contending that the petitioner’s son is laid up after an accident. He has a wife and two children, who are being looked after by the petitioner. The petitioner further contended that he is not in a position to meet the expenses with the income derived from the rent from the petition schedule buildings. In order to augment the income, the petitioner decided to start a supermarket in the RCRev.107, 108 & 109 of 2023 5 entire building after evicting the tenants, making minor alterations and repairs to the building, and removing the partition walls between the shop rooms. It was also contended that another son of the petitioner is also jobless and will help the petitioner in the business, and on these grounds, eviction was sought. 3. The tenants resisted the petition contending that the petitioner has several other properties and that three of her sons are employed abroad and they are taking care of the bedridden son. The need put up is only a ruse for eviction, and they are solely dependent upon the income derived from the business, and no other suitable building is available in the locality to shift the business. 4. The petitioner was examined as PW1 during the trial, and the respondents/tenants were examined as RWs1 to 4, respectively. The commission report and plan were also marked as Ext.C1 series and C2 series. After evaluation of the evidence let in, the trial court found that the petitioner needed the entire building for starting the supermarket and that she had no other source of income, and that with the help of another son, she could start the business, and thus the bonafide need stands proved. It is also held that the tenants were not entitled to the protection of the first and the second provisos to Section 11(3) of the Act. The appeals filed by the tenants were also dismissed, affirming the trial court's findings. 5. We have heard Sri. K.P. Sudheer, the learned counsel for the revision RCRev.107, 108 & 109 of 2023 6 petitioners, and Sri. Jamsheed Hafiz, the learned counsel appearing for the respondent. 6. Having heard the learned counsel on either side, we are of the view that the orders of eviction passed by the courts below require no interference. It was not disputed that one of the sons of the landlord was bedridden. He has a family to support, and the petitioner was taking care of it. The petitioner's specific case is that with the help of another son, she can start the supermarket after making necessary alterations to the building. 7. After evaluating the evidence on record, both courts concluded that there was nothing to discredit the landlord's case regarding the bona fide need. We find no reason to differ from the views the authorities took below. As regards the protection of the provisos to the tenants, there was no evidence adduced by the tenants to show that the landlord had any other building which was suitable to start the proposed business and which is lying vacant, thus disentitling the tenants from the benefit of the first proviso. Regarding the second proviso, the tenants did not adduce any evidence as to the income derived from the business conducted in the shop rooms. It is trite that the tenants must discharge the burden of both limbs of the second proviso. The same not having been done, the authorities were right in refusing the protection of the second proviso to the tenants. 8. Before us, the learned counsel for the revision petitioners also argued RCRev.107, 108 & 109 of 2023 7 that the need in the instant case would come under the ground of reconstruction under Section 11(4)(iv) of the Act and not under Section 11(3), as the building requires extensive modifications, even if the need set up is held to be true. We reject this contention as the requirements under Sections 11(3) and 11(4)(iv) are entirely different. The petitioner places reliance on the judgment of this Court in **Haridasan K. and others** _**v**_ **. P.K. Mohanan and others** [2021 (3) KHC 365] for contending that if the need projected is for the reconstruction of the building, certain protections are provided for the tenant while ordering the eviction, and so the ground for reconstruction would apply. 9. In the instant case, we notice that the case was under Section 11(3) of the Act and, as noticed in the above judgment, there are cases where demolition and reconstruction of the building may fall upon the stipulations under Section 11(3) itself, while the statutory protection to the tenant is available only when eviction is sought for the reconstruction of the building, which is not the case on hand. We also add that even in the extreme cases where the landlord bona fide needed the building to be demolished and a new one put up for the purpose of his residence, even that need not be a case of reconstruction but a case under Section 11(3). It is not for the tenant to dictate how the landlord could use his building. We do not find any ground warranting interference under Section 20 of the Act in the revisional jurisdiction. The revision petitions fail and are dismissed accordingly. RCRev.107, 108 & 109 of 2023 8 At this juncture, the learned counsel for the petitioners prays for a reasonable time to vacate the premises. Accordingly, we deem it appropriate to grant six months' time to the petitioners to vacate the premises subject to the following conditions:- “(i) The revision petitioners shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition scheduled building to the petitioner-landlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition scheduled building, and further they shall conduct any business in the petition scheduled building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; ii) The revision petitioners shall deposit the damages for use and occupation, which shall be equal to the rent fixed, with entire arrears on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; (iii) Needless to say, in the event of the revision petitioners failing to comply with any one of the conditions stated above, the time limit RCRev.107, 108 & 109 of 2023 9 granted by this order to surrender vacant possession of the petition scheduled building will stand cancelled automatically, and the landlord will be at liberty to proceed with the execution of the order of eviction.” SD/- ## **A.K.JAYASANKARAN NAMBIAR** **JUDGE** SD/- **MOHAMMED NIAS C.P. JUDGE** okb/