T.P. Persa v. K. Subaida and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: PIUS C. KURIAKOSE
N. K. BALAKRISHNAN
Judgment Date: 2011-04-11
Court Decision / Holding: The eviction order under Section 11(8) is set aside; the RCP is remanded to permit amendment of the Rent Control Petition; landlords may amend within one month; tenant may file additional counter; trial shall proceed, with revised order to be passed based on evidence on record and any new evidence. Rent fixed at Rs. 1,200 per month from 01/05/2011; parties to appear on 25/05/2011 for further proceedings; rent fixation under Section 5 to be pursued thereafter until fair rent is fixed.
Final Disposition: Revision petition allowed in part; eviction set aside; RCP remanded for amendment; rent fixed provisionally; further proceedings directed.

Parties to the Case

Appellants / Petitioners

T.P. Persa

Respondents

K. Subaida
K.O. Ashfaq
K.P. Aneefa
K.P. Askar
K.P. Ashraf
K.P. Jesna
K.P. Bushra

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M. V. Amaresan

Counsels for Respondents

• Sri. M. Sasindran (for R1 to R7)

Case Synopsis & Summary

This Rent Control Revision challenges an eviction order under Section 11(8) of the Kerala Rent Control Act, 1965. The revision petitioner, T.P. Persa, a tenant occupying premises used for bakery, sweet stall, a cool bar, stationary shop, and related activities, contends that the Rent Control Court, confirmed by the Appellate Authority, wrongly held eviction to be justified on the landlord’s need for additional accommodation. The landlords pleaded that they required extra space to expand their business and proposed relocating the ground-floor cool bar to the petition schedule building on the first floor. At trial, it became evident that the landlords did not presently operate a cool bar on the ground floor; only a plan to start one existed, casting doubt on the claimed “need.” The Appellate Authority relied on a Supreme Court decision, Davis v. Sebastian, to hold that need may include starting a new business, but the High Court declines to rely on that ratio as decisive here. The court remits the matter for amendment of the Rent Control Petition, allows counter amendment, and directs trial with re-fixing rent, to ensure fair rent prospectively. It fixes rent at Rs. 1,200 per month from May 1, 2011, and requires the parties to appear for further proceedings within specified time, while preserving the tenant’s occupancy with revised terms.

Provisions of Law Cited

Section 11(8) of Act 2 of 1965Section 11 of Act 2 of 1965Section 5 (regular fixation of fair rent)

Submissions & Arguments

Contentions of Appellants / Petitioners

The tenant contends that the eviction order under Section 11(8) is unsustainable since the landlords’ pleadings and evidence show no current business need; the alleged relocation of an existing cool bar is not substantiated as an existing use. The revision petition should be allowed with liberty to amend pleadings, and trial should proceed with both sides preserving the record, including a potential re-fixation of rent under Section 5.

Contentions of Respondents

The landlords argue that they require additional accommodation to expand their business and to shift the cooling bar to the first floor; reliance on Davis v. Sebastian to interpret ‘need’ as including a new business. They seek eviction on the ground of need under Section 11(8).

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Davis v. Sebastian	AIR 1999 SC 3223	Mentioned Only	The High Court notes Davis v. Sebastian in discussing the scope of ‘need’ but states its ratio is not necessarily binding for the present case and proceeds with its own assessment.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 RCRev..No. 114 of 2011(C) -----------------------------RCA.64/2007 of ADDL. DISTRICT COURT, THALASSERY RCP.10/2005 of MUNSIFF COURT, PAYYANNUR .................... ## REVISION PETITIONER/APPELLANT/RESPONDENT: -------------------------------------------------------- T.P.PERSA, AGED 38 YEARS, W/O.C.T.MUHAMMED, INDO WORLD TRAVELS, STAND VIEW BUILDING, OPP.PLAYYANNUR BUS STAND, P.O.PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN ## RESPONDENT(S)/RESPONDENTS/PETITIONERS: ---------------------------------------------------- 1. K.SUBAIDA, AGED 51 YEARS, W/O.LATE ELAT MUHAMMED KUNHI, NEAR NCC OFFICE, P.O.PAYYANNUR, KANNUR, PIN-670 307. 2. K.O.ASHFAK, AGED 35 YEARS, S/O.LATE ELAT MUHAMMED KUNHI, NEAR NCC OFFICE, P.O.PAYYANNUR, KANNUR, PIN-670 307. 3. K.P.ANEEFA, AGED 33 YEARS, S/O.LATE ELAT MUHAMMED KUNHI, NEAR NCC OFFICE, P.O.PAYYANNUR, KANNUR, PIN-670 307. 4. K.P.ASKAR, AGED 30 YEARS, - S/O.LATE ELAT MUHAMMED KUNHI, NEAR NCC OFFICE, PAYYANNUR, KANNUR, PIN-670 307. 5. K.P.ASHRAF, AGED 27 YEARS, S/O.LATE ELAT MUHAMMED KUNHI, NEAR NCC OFFICE, P.O.PAYYANNUR, KANNUR, PIN-670 307. RCRev..No. 114 of 2011(C) -2- 6. K.P.JESNA, AGED 25 YEARS, - D/O.LATE ELAT MUHAMMED KUNHI, NEAR NCC OFFICE, P.O.PAYYANNUR, KANNUR THROUGH P.A.HOLDER K.SUBAIDA W/O.LATE ELAT MUHAMMED KUNHI, NEAR NCC OFFICE P.O.PAYYANNUR, KANNUR, PIN-670 307. 7. K.P.BUSHRA, AGED 23 YEARS, - S/O.LATE MUHAMMED KUNHI, NEAR NCC OFFICE, - P.O.PAYYANNUR, KANNUR, PIN-670 307. ADV. SRI.M.SASINDRAN FOR R1 TO 7 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. -----------------------------------------------R. C. R. No.114 of 2011 -----------------------------------------------Dated this the 11[th] day of April, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court against the revision petitioner under sub Section 8 of Section 11 of Act 2 of 1965. As pleaded in the RCP, the case of the landlords was that they were presently conducting bakery, sweet stall, cool bar and stationary shop in the ground floor of the building apart from managing a bus service from that room and that they require additional accommodation for expanding their business that is by shifting the cool bar from the ground floor to the petition schedule building which is in the first floor. During the R. C. R. No.114 of 2011 -2- course of his evidence the stand taken by the landlord was that a new cool bar is proposed to be started in the petition schedule building. In other words, the pleaded case of shifting the existing cool bar from the ground floor to the first floor was given a go-bye. The learned Appellate Authority did notice the above deviation in the landlords case in evidence from the case pleaded by him. The learned Appellate Authority, however, did not take that seriously. The learned Appellate Authority relied on the judgment of the Supreme Court in Davis v. Sebastian (AIR 1999 SC 3223) and held that the need for additional accommodation under sub Section 8 of Section 11 need not be restricted to expansion of existing business but can also involve commencement of a new business. 2. It is not necessary for the purpose of this case that we examine the applicability of the ratio of the judgment of the Supreme Court in this case. As far as this case is -3- R. C. R. No.114 of 2011 concerned, the case pleaded specifically by the landlord was that he is already conducting a cool bar in the ground floor and he intends to have that cool bar shifted over to the first floor by way of additional accommodation. When it became evident in the case that he is not conducting any cool bar at all presently and only intends to start a cool bar in the first floor, the statutory authorities in our opinion were not justified in upholding that claim. The eviction order passed under Section 11(8), concurrent though it be, will have to be interfered with. At the same time, we feel that it is not proper to dismiss the RCP finally. According to us liberty can be given to the landlord for amending his pleadings. 3. We are informed that the current monthly rent of Rs.840/- was fixed by the parties in 2004. According to us, the above rent is below the rent which the building may fetch if the same is let out today. We are therefore inclined to re-fix the rent prospectively subject to the parties' right R. C. R. No.114 of 2011 -4- to move the Rent Control Court for regular fixation of fair rent. 4. Result of the above discussion therefore, is as follows:- The order of the Rent Control Court and the judgment of the Appellate Authority directing eviction on the ground under sub Section 8 of Section 11 are set aside. The RCP is remanded to the Rent Control Court. The Rent Control Court is directed to permit the landlords to amend their Rent Control Petition suitably. If the landlords file an application for amendment of the Rent Control Petition within one month of entering appearance before the Rent Control Court, the same will be allowed. If the RCP is amended, the tenant should be permitted to file additional counter. Once pleadings are completed, the RCP will be listed for trial and both sides will be allowed to adduce whatever evidence they are desirous of for substantiating the rival contentions. The R. C. R. No.114 of 2011 -5- Rent Control Court will pass revised order based on the evidence already on record and further evidence which comes to be on record. 5. Rent payable by the revision petitioner for the building is fixed with effect from 01/05/11 at Rs.1,200/- per mensem. Both parties are free to apply for regular fixation of fair rent under Section 5. Till fair rent is fixed, revision petitioner shall pay rent at the rates fixed as above. Parties will enter appearance before the Rent Control Court on 25/05/11. The Rent Control Court is directed to do the needful in compliance with the above directions and ensure that revised order is passed within four months thereafter. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.114 of 2011 -6-