RCRev.No.

228 of 2024

2024:KER:91929
IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

&

THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

MONDAY, THE 2ND DAY OF DECEMBER 2024 / 11TH AGRAHAYANA, 1946

RCREV. NO. 228 OF 2024

AGAINST THE JUDGMENT DATED 31.08.2024 IN RCA NO.54 OF

2023 OF II ADDITIONAL RENT CONTROL APPELLATE AUTHORITY / II

ADDITIONAL DISTRICT COURT, KOZHIKODE ARISING OUT OF THE ORDER

DATED 28.02.2023 IN RCP NO.10 OF 2020 OF MUNSIFF-MAGISTRATE

COURT, THAMARASSERY

REVISION PETITIONERS/APPELLANTS/RESPONDENTS:

1 MAYA M.T.
AGED 73 YEARS
W/O. LATE PARAMESWARAN NAMBEESAN, MANJU VIHAR, NEAR
KARADI U.P. SCHOOL, THAMARASSERY P.O., KOZHIKODE,
PIN - 673573

2 BINJUSH NAMBEESAN
AGED 44 YEARS
S/O. LATE PARAMESWARAN NAMBEESAN, MANJU VIHAR, NEAR
KARADI U.P. SCHOOL, THAMARASSERY P.O., KOZHIKODE,
PIN - 673573

3 RANJUSHA
AGED 42 YEARS
D/O. LATE PARAMESWARAN NAMBEESAN, MANJU VIHAR, NEAR
KARADI U.P. SCHOOL, THAMARASSERY P.O., KOZHIKODE,
PIN - 673573
RCRev.No.228 of 2024

2024:KER:91929
BY ADVS.
T.KABIL CHANDRAN
R.ANJALI

RESPONDENT/RESPONDENT/PETITIONER:

NADUKKANDY P.C. ASHRAF

THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION

2024:KER:91929
CR

ORDER
P. Krishna Kumar, J.

The tenants who suffered an order of eviction

under Sections 11(2)(b) and 11(3) of the Kerala

Buildings (Lease and Rent Control) Act, 1965 (‘the

Act’, for short) challenge the concurrent findings

of the Rent Control Court and the Appellate

Authority, by invoking the revisional jurisdiction

of this court.

2. The short facts which are necessary for the

disposal of this case are as follows:

The landlord-respondent purchased the tenanted

premises on 04/03/1995. The predecessor-in-interest

of the tenants-revision petitioners was inducted

into the said building by the prior owner as his

tenant, and the tenancy continued despite the death

2024:KER:91929
of the original tenant. The landlord requires the

vacant possession of the tenanted building for the

bona fide occupation of his dependent son. The

tenants objected to the petition for eviction,

contending that the need projected was not genuine.

3. We heard the learned counsel appearing for the

petitioners as well as the respondent.

4. It is forcefully submitted by the learned

counsel for the petitioners that the predecessor-in-

interest of the petitioners was a commercial tenant

and thus the petitioners are entitled to get

protection under Section 106 of the Kerala Land

Reforms Act (for short, KLR Act). It is argued that

there was a specific contention in the written

objection that the original tenancy was commenced on

18/08/1961 in between the predecessors of both sides

and the original tenant had reconstructed the

petition scheduled building by using his own money

with the consent of the prior owner for conducting

business in Pooja articles. According to the learned

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counsel, the courts of the first and second

instances omitted to note the relevance of the said

legal question even though the first revision

petitioner had given oral evidence as RW1 to prove

the said contentions. It is further urged that the

matter should have been taken out of the precincts

of the Rent Control Court considering the second

proviso to section 11(1) of the Act, in the light of

the above-mentioned pleadings.

5. We cannot accept these contentions for the

apparent reason that the revision petitioners failed

to plead the claim of permanent tenancy in specific

and explicit terms. The pleadings regarding the

denial of title or the claim for permanent tenancy

must be clear, specific, and unequivocal, without

which the Rent Control Court cannot assess whether

the said contention was raised in good faith or was

merely a pretext for eviction. Although the strict

rules of pleadings may not apply with full force to

rent control proceedings, when the statute imposes a

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duty on the court to examine the genuineness of the

claim before making a crucial decision, the party

who wishes to invoke the said remedy must plead it

with certainty and particularity.

6. In Abdul Hakkim v. Shazam Abdul Majeed (2017

(5) KHC 538), this Court faced a similar situation.

As in the present case, the concurrent findings of

the rent control authorities were challenged before

this court by filing a revision petition on the

ground that the question of denial of title was not

properly addressed by the courts of first and second

instances. It is then held that such a contention

has to be explicitly raised.

7. Apart from that, we find no merit in the

contention raised by the learned counsel for

claiming protection under the second proviso to

Section 11(1) of the Act based on the abovementioned

allegations. The landlord can be relegated to a

civil court only if the respondent in the eviction

proceedings denies in good faith the title of the

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landlord or otherwise claims permanent tenancy. To

avail the protection under Section 106 of the KLR

Act, the respondent in the eviction proceedings must

plead and establish two essential conditions:

(i) that they were granted a lease of the land (not

a building) for commercial or industrial purposes,

and (ii) that subsequent to the grant of the lease,

they constructed a building or structure on the land

for the said purpose, before 20/05/1967. These twin

conditions are indispensable for invoking the

provisions of Section 106 of the KLR Act. In the

absence of a specific contention to this effect, the

Rent Control Court is not obligated to examine the

applicability of the second proviso to Section 11(1)

of the Act. Our observations are reinforced by the

legal principles enumerated in Chandy Varghese v.

Abdul Khader [(2003) 11 SCC 328] and Abdul Rehiman

v. Iype (1965 KHC 69). In fact, what is pleaded by

the petitioners is contrary to the said

requirements. According to them, their predecessor-

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in-interest, the late Parameswaran Nambeesan, was

inducted into the building by the prior owner of the

building on 18/08/1961 and later the building was

reconstructed by Parameswaran Nambeesan using his

own money.

8. Though the learned counsel appearing for the

petitioners raised certain feeble contentions to

assail the eviction order passed under Section 11(2)

(b) and 11(3) of the Act, we find no reason to

evaluate the correctness of those findings on facts.

In Ubaiba v. Damodaran [(1999) 5 SCC 645] the

Honourable Apex Court held that the power of

revision under Section 20 of the Act should not be

exercised to reappreciate the evidence and to

substitute an independent conclusion in place of the

conclusions arrived at by the Rent Control

Court/Appellate Authority. In the absence of any

material to show that there is perversity or gross

irregularity in the findings of the Courts of the

first and second instances, this court is not

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expected to reconsider the correctness of the

concurrent factual findings as to the bona fide need

projected by the landlord or the questions relating

to arrears of rent.

9. In such circumstances, this Rent Control

Revision Petition is dismissed. However,

considering the fervent plea made by the learned

counsel for the petitioners, six months' time is

granted to the petitioners to surrender vacant

possession of the petition schedule shop room to

the respondent, subject to the following

conditions:

(i) The respondents in the Rent Control

Petition 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

10

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will surrender vacant possession of the

petition schedule shop room 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 schedule shop

room and further, they shall conduct any

business in the petition schedule shop

room only on the strength of a valid

licence/permission/consent issued by the

local authority/statutory authorities;

(ii) The respondents in the Rent Control

Petition shall deposit the entire

arrears of rent as on date, if any,

before the Rent Control Court or the

Execution Court, as the case may be,

within one month 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, failing to comply with

11

2024:KER:91929
any one of the conditions stated above,

the time limit granted by this order to

surrender vacant possession of the

petition schedule shop room will stand

cancelled automatically and the landlord

will be at liberty to proceed with the

execution of the order of eviction.

Sd/-
A.MUHAMED MUSTAQUE

JUDGE

Sd/-

P. KRISHNA KUMAR

JUDGE

sv