Kodakkal Shahanas vs Kythal Thayyil Shahida

A.M. Babu, J. - Rent Control Court, Vatakara tried three rent control petitions jointly and dismissed them. Three appeals were filed before the Rent Control Appellate Authority, Vatakara. The appeals were allowed. The proceedings relating to this revision are R.C.P. 32/2011 and R.C.A. 39/2012.

Eviction of the tenant was sought under section 11(2)(b) and (3) of the Kerala Buildings (Lease and Rent Control) Act (for short, "the Act"). The landlady did not press the ground under section 11(2) (b). She prosecuted only the ground under section 11(3). Holding the need to be not bona fide, the Rent Control Court dismissed R.C.P. 32/2011. The Appellate Authority allowed R.C.A. 39/2012. It directed the tenant to vacate the premises. She preferred this revision.

The landlady owns a single storied building which consists of six rooms in a row. The revision petitioner is the tenant of one such room. The landlady has a daughter by name Narmina. Her husband is Sajir. The landlady sought eviction of her tenants to enable Narmina and Sajir to construct a house after demolishing the existing building. Narmina and Sajir are contended to be depending upon the landlady. The tenant disputes the bona fide need and the dependency pleaded by the landlady. According to the tenant, Narmina and Sajir have no intention to return to India soon.

The building is situated in a property admittedly measuring 23 cents. The tenant has a case that even if the alleged need is bona fide, the proposed house can be constructed without demolishing the existing building. This contention was considered by the Rent Control Court and the Appellate Authority. Ext. C1 report and Ext. C2 plan of the Commissioner were considered. Ext. C2 plan makes it clear that the building situates almost at the middle of the 23 cents of land. This fact was admitted by RW1, the revision petitioner. The Commissioner reported that a convenient house could be constructed only after demolishing the existing building. We are convinced that it is not possible to construct a convenient house retaining the existing building. We confirm the finding of the courts below.

The property where a house is proposed to be constructed situates at Azhiyoor in Vatakara taluk of Kozhikode district. Sajir hails from Thalassery. The landlady contends that her daughter and son-in-law reside in her house in accordance with the custom followed by the Muslims of Azhiyoor, Mahe and Thalassery. The courts below did not probe into the alleged custom. It was not necessary to go into that question. Even in the absence of any such custom, the landlady could seek eviction to accommodate her daughter and son-in-law.

The dependency pleaded by the landlady was disputed by the tenant. It is settled law that the dependency within the meaning of Section 11(3) of the Act is not just financial dependency. The daughter, and even a son-in-law, can be a dependent of a landlady for availability of accommodation. The tenant has contended that Sajir owns his own land to construct a house. The husband of the landlady has deposed as P.W. 1 that Sajir owns no property. P.W. 1 has stated that Sajir''s tharavad property stands in the name of Sajir''s mother. Apart from the oral assertions of RWs1 to 3 there is no evidence to prove the holding of any land of his own by Sajir. No document was produced by the tenant to establish her contention. She has no case that Narmina owns any land of her own to construct a house. The dependency within the meaning of Section 11(3) of the Act pleaded by the landlady is established.

The tenant has contended that the landlady herself has another property where Narmina and Sajir could construct their house. The revision petitioner''s learned counsel has submitted that the landlady owns one acre of land. This contention too was considered by the trial and appellate Courts. The other property of the landlady is not her alone. She is only a co-owner of it. This fact was admitted by RWs1 to 3. P.W. 1''s evidence suggests that a suit for partition of the said property is pending in the Sub Court, Vatakara as O.S. 89/2006. We agree with the finding of the Courts below that the landlady has no other independent property. We may add that it is entirely within the discretion of the landlady to decide which property she should spare to her daughter and son-in-law to enable them to construct a house for them.

PW1 is the husband of the landlady. He gave evidence on her behalf. He is a competent witness (vide Section 120 of the Indian Evidence Act). He spoke only to matters within his direct knowledge. He spoke to the bona fides of the need alleged. He had stated that his daughter and son-in-law did need a house for their residence. Their marriage was in 1999. Their children are growing up, said P.W. 1. The tenant has no case that Narmina and Sajir have any house of their own. In the light of the evidence available in the case, the bona fides of the landlady is not liable to be suspected in the normal course. But the Rent Control Court did not accept the need to be bona fide.

Both Narmina and Sajir are now living abroad. Sajir is employed in a Gulf country. The evidence of P.W. 1 that Narmina and Sajir will reside in the house proposed to be constructed by them was not acceptable to the Rent Control Court. That Court said that there was no such pleading and that the pleading was different. The Court said that the landlady suppressed certain facts. We shall consider those matters.

The landlady states in her petition that as per the custom Narmina and Sajir are residing in her house. According to the Rent Control Court, the said contention creates an impression that the daughter and son-in-law of the landlady are residing with her in her house, but actually they are residing abroad. It does not appear to us that such an inference is the only inference possible. The landlady was just highlighting the fact that as per the custom, her daughter and son-in-law were expected to live in her house. In that perspective only it was stated in the petition that Narmina and Sajir were residing in the house of the landlady. We do not think that the pleading of the landlady referred to above would mislead anybody, much less the tenant who was aware and contended that Narmina and Sajir were living abroad. The conclusion of the Appellate Authority is correct and we confirm it. The Rent Control Court itself has stated in its order that meticulous pleadings cannot be insisted on in a rent control proceedings. Unwise it is to think that Narmina and Sajir will reside in the Gulf country for ever. One day they will have to come back. It is also unwise to think that they should think about constructing a house only when they come back or only when they decide to come back. We are unable to agree with the Rent Control Court. We are in agreement with the contrary finding of the Appellate Authority.

The learned counsel for the revision petitioner submitted that Sajir was not examined. Narmina was also not examined. We are unable to accept that Narmina or Sajir had anything to depose other than what spoken to by P.W. 1.

The revision petitioner''s learned counsel submitted that the landlady did not possess a plan and licence. The rent control petition on hand is not one seeking eviction under Section 11(4)(iv) of the Act, but one under Section 11(3). A plan and licence are a pre-requisite condition only if the ground for eviction is reconstruction of the building.

As we have already said, we are unable to approve the finding of the Rent Control Court that the need set up by the landlady was not bona fide. The Appellate Authority rightly interfered with the said finding of the Rent Control Court.

Our jurisdiction under section 20 of the Act is very limited. We checked the legality, regularity and propriety of the impugned judgment. We find nothing to find that the judgment of the Appellate Authority is vitiated by any illegality, irregularity or impropriety, although that Authority added philosophies in overdose to decide the case. The revision is liable to be dismissed.

The learned counsel for the revision petitioner has requested for eight months'' time to vacate the premises in the event of dismissal of the revision. It is just and reasonable to grant a reasonable time to the tenant to vacate the premises. She has been living in the rented premises for a long time. She has stated in her counter-statement that she was born and brought up in the said premises. We are convinced that she requires some time to find out an alternative accommodation. But eight months'' time is a bit long. We are inclined to grant time till 31.5.2017, but subject to conditions.

The revision fails. We dismiss it. We leave the parties to bear their respective costs. We give time till 31.5.2017 to the revision petitioner to vacate the premises. Grant of time is subject to the following conditions, namely (i) the revision petitioner shall file an affidavit before the Rent Control Court within one month from today unconditionally undertaking to vacate the premises on or before 31.5.2017, (ii) arrears of rent, if any, shall be cleared within a period of one month from today and (iii) rent in future shall be paid on or before the 10th day of the succeeding month. If any of the above conditions is violated, the benefit given to the revision petitioner under this order shall stand recalled.