ABDU RAHIMAN Vs. FATHIMMA AND ORS.

JUDGEMENT

(1.) The revision petitioner is the petitioner in RCP No. 56/2013 on the file of the Rent Controller of Tirur and the respondents herein are the respondents in the above rent control petition (hereinafter revision petitioner is mentioned as petitioner and the respondents are mentioned as respondents respectively). The above rent control petition was filed by the petitioner under Secs. 11(3) and 11 (8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'Act, 1965').

(2.) The case of the landlord, in brief, is like this : The landlord is the owner of the petition schedule building. The respondents are in possession of the petition schedule property as legal heirs of deceased 'Hamza Haji'. Hamza Haji, the husband of the 1st respondent and father of the other respondents had taken the petition schedule property on lease in 1996 by fixing a monthly rent of Rs.1,500/- and also on payment of Rs. 2,75,000/- as advance. According to the petitioner, the respondents kept the rent in arrears from February 2011 onwards. Hence, he requested Hamza Haji to vacate the room for starting a business in the petition schedule room. Since Hamza Haji refused to accede to the request of the petitioner, he filed RCP No. 20/2003 under Sec.11(3) of the Act, 1965. That application was dismissed and the appeal filed as RCA No. 28/2004 was also dismissed. According to the petitioner, since there is a possibility of delay in getting the petition schedule room for his own occupation after litigation, the petitioner started a business of bakery, cool drinks, and coffee stall in a room having a length of 3 1/2 metres and width of 1 metre, which was constructed by him subsequently on the northern side of the plaint schedule property. According to the petitioner, there is a shortage of space in the room, in which bakery and cool bar business conducted by him. Since the petitioner is running that business in a busy crowded market area, it is highly necessary to expand the business. Hence, the petitioner requires the petition schedule shop room as additional space for expanding his business. According to the petitioner, it is very convenient to conduct business by attaching the petition schedule shop room to the room in which he is conducting business.Hence, the petitioner sends a lawyer notice on 6.1.2011 directing the respondents to vacate the room for the above said purpose. According to the petitioner, the reply notice send by the respondents contains false allegations. Hence, the petition is filed for getting the vacant possession of the petition schedule property.

(3.) Respondents Nos.1 and 4 appeared through counsel before the Rent Control Court.But they have not filed any counter before the Rent Control Court. Respondent No.3 filed a counter statement, in which he contended that the petition schedule property was not taken on lease by the respondent's father as stated in the petition. According to him, the petition schedule property was in the co- ownership of the petitioner and his brothers. While construction of the petition schedule building was in progress, the respondent's father obtained the room on lease from the petitioner's brother, Mohammed Basheer by paying Rs.2,75,000/- as per agreement dated 9.11.1995. Thereafter, the room bearing No.542V on the upstairs of the petition schedule property was taken on lease by Hamza Haji for doing business. After the death of Hamza Haji, a license is obtained in the name of the 1st respondent, and the respondent Nos. 2 and 5 are conducting business in the room. RCP No. 20/2003 and 21/2003 was filed by the petitioner for getting vacant possession of the petition schedule room and room No.542V. The respondent's father, Hamza Haji died during the pendency of those petitions and thereafter, the respondents were impleaded in those petitions. RCP Nos.20/2003 and 21/2003 were dismissed on 31.03.2004. Against the order in RCP No.20/2003, the petitioner filed RCA No. 28/2004, and the same was also dismissed on 25.10.2011.The allegation that there is rent arrears from February 2011 was denied. The averments in the petition that the petitioner has no avocation and the only source of income of the petitioner is the rent of the room are also disputed. According to the 3rd respondent,the petitioner has got large number of properties and other sources of income, and the petition is filed with an intention to harass the respondents. According to the 3rd respondent, the petitioner is not conducting any business as stated in the petition. Hence, the respondents requests to dismiss the petition before the Rent Control Court.