Saifudheen, Zainabha, Basheer and Rasheed v. Abdul Basith and Sunitha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 3RD DAY OF DECEMBER 2013/12TH AGRAHAYANA, 1935 RCRev..No. 390 of 2013 () -------------------------- AGAINST THE JUDGMENT IN RCA 82/2012 of, RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM DATED 26/10/2013 AGAINST THE ORDER IN RCP 35/2010 of RENT CONTROL COURT,KOCHI DATED 31/07/2012 REVISION PETITIONER(S): ----------------------- 1. SAIFUDHEEN, AGED 58 YEARS S/O.LATE ZAYED MOHAMMED CC 3/411, UBAID ROAD, PULLUPALAM FORTKOCHI, KOCHI-1 2. ZAINABHA,AGED 76 YEARS, W/O.LATE ZAYED MOHAMMED CC 3/411, UBAID ROAD, PULLUPALAM FORTKOCHI, KOCHI-1 3. BASHEER AGED 54 YEARS S/O. LATE ZAYED MOHAMMED, CC 3/411 UBAID ROAD PULLUPALAM, FORTKOCHI, KOCHI-1. 4. RASHEED AGED 58 YEARS S/O. LATE ZAYED MOHAMMED, CC 3/411 UBAID ROAD PULLUPALAM, FORTKOCHI, KOCHI-1. BY ADV. SRI.SAJAN MANNALI RESPONDENT(S): -------------- 1. ABDUL BASITH, S/O.KHADER ALI 10/715/B, AMARAVATHY, FORTKOCHI KOCHI-682 001 2. SUNITHA, AGED 48 YEARS D/O.LATE ZAYED MOHAMMED, CC 3/411 UBAID ROAD PULLUPALAM, FORTKOCHI, KOCHI-682 001. R1 BY ADV. SRI.BABU KARUKAPADATH FOR CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **T.R. RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R.No.390/2013 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 3[rd] day of December, 2013** ## **O R D E R** ## **Kemal Pasha, J.** The tenants in a small apartment consists of two rooms and a kitchen in a line building which belongs to the first respondent-landlord have come up in revision challenging the concurrent findings rendered by the Rent Control Court, Kochi as well as the Rent Control Appellate Authority, Ernakulam on the ground under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the 'Act'). 2. The case of the landlord is that the line building contains two such apartments having two rooms with a kitchen each and in one of the said apartments, the wife of the deceased original tenant along with their family members are residing. The other apartment was sold out by the landlord to the concerned tenant of that apartment for meeting the marriage expenses of his sister. It is the case of the landlord that he purchased the building in question in the year 2003 through Annexure-A1 ## **`R.C.R.No.390/2013`** ## **-:2:-** sale deed from his grandmother. The landlord is presently residing in a rented premises at Kochi and has no building of his own in Kochi or Ernakulam District. According to the landlord, he is in bona fide need of the premises for his own residence with his family consisting of his wife and kids and that he wants to continue his business of Aluminium fabrication works also that is being conducted presently at the rented premises. 3. The tenants in the rent control petition have contended that they are entitled to the protection under Section 11(17) of the Act as the building in question was taken on lease by the predecessor-in-interest of the tenants from the grandmother of the landlord in the year 1930 and continued as tenant. It is also contended that the need urged by the landlord is not bona fide. 4. We heard the learned counsel for the petitioners Shri Sajan Mannali and the learned counsel for the first respondent Shri Babu ## **`R.C.R.No.390/2013`** ## **-:3:-** Karukapadath. Even though the tenants claim the commencement of tenancy as on in the year from 1930, the leaned counsel for the landlord has pointed out that the original tenant himself had admitted in the pleadings in another suit filed by the original landlord, that the tenancy had commenced in the year 1956. Whatever it is, regarding the protection under Section 11(17) of the Act, it has become trite law that the legal heirs of the original tenant cannot claim protection the under Section 11(17) of the Act, see: Narayanan v. Shalima [2003 (2) KLT 317 (F.B)]. 5. Regarding the question of bona fides, the learned counsel for the petitioners has attempted to canvas an argument that the landlord has failed to prove that he is residing in a rented premises. The argument in short is that the landlord has failed to prove that his claim under Section 11 (3) of the Act is not hit by the first proviso to Section 11(3) of the Act. 6. The revision petitioners have failed to point out that the landlord has any building of his own in the same city, town or village. Only ## **`R.C.R.No.390/2013`** ## **-:4:-** when it is shown that the landlord has any vacant building of his own in the same city, town or village, then the first proviso comes into play. So long as as the tenants have failed to point out the presence or existence of any such vacant building in the possession of the landlord, the bar under the first proviso to Section 11(3) of the Act will not come into play. 7. Regarding the bona fide need also, we do not find anything to interfere with the concurrent findings entered by the Rent Control Court as well as by the Appellate Authority on that point. When the landlord has no building of his own and he is residing in a rented premises, it is quite natural that he should have a bona fide need of the tenanted premises for his residence with his family members. Especially, when the landlord has a building of his own, which is being occupied by tenants, and the landlord is residing in a tenanted premises, the need urged by the landlord cannot be said to be not bona fide. Even though the landlord has purchased the ## **`R.C.R.No.390/2013`** ## **-:5:-** building in the year 2003, it is seen that the rent control petition has been filed in the year 2010 only. 8. On getting Annexure-A1 document executed in favour of the landlord, the original landlord caused to issue Annexure-A2 notice to the tenants calling upon them to pay rent to the first respondent-landlord in respect of the building and the tenants issued Annexure-A3 reply notice by which they attorned to the landlord and continued to pay the rent. 9. Even though the learned counsel for the petitioners has pointed out that the landlord has failed to prove that he is carrying on business in Aluminium fabrication works, the learned counsel for the landlord has pointed out that the tenants, in the objections filed by them have not disputed the specific averments regarding the same in the rent control petition. When that fact has not been disputed or challenged, the landlord is not expected to adduce any further evidence relating to the matter. On going through the entire evidence and records, we are of the ## **`R.C.R.No.390/2013`** ## **-:6:-** view that there is absolutely nothing to interfere with the concurrent findings entered by both the courts below. Being a residential building, the tenants are not entitled for the protection of the second proviso to Section 11(3) of the Act. 10. On hearing either side, we are satisfied that a time up to 03/06/2014 can be granted to the tenants to put the landlord in possession of the building, subject of course to terms and conditions:- In the result, - (a) This Rent Control Revision is dismissed. (b) The petitioners will file an affidavit unconditionally undertaking to vacate the petition schedule premises on or before 03/06/2014 before the Execution Court or the Rent Control Court as the case may be. (c) The affidavit as directed above will be filed within a period of one month. ## **`R.C.R.No.390/2013`** ## **-:7:-** (d) The arrears of rent, if any, will be paid to the landlord within a period of one month. (e) They will continue to pay the same monthly rent for use and occupation till the vacant possession is handed over. It is made clear that if any of the above conditions are violated, the petitioners will not be entitled to the benefit of this order. Sd/- ## **(T.R. Ramachandran Nair, Judge)** Sd/- **(B.Kemal Pasha, Judge)** ms \\True copy// P.S to Judge