K.V.KUNHAMINA Vs. K.T.ABOOBACKER HAJI

JUDGEMENT

(1.) The tenant ­ the respondent in R.C.P.No.59 of 2011 on the file of the Rent Control Court (Principal Munsiff), Kannur is the revision petitioner herein. The respondent herein is the landlord of the petition schedule building. The respondent/landlord filed the above rent control petition alleging that the petition schedule building was let out to the husband of the revision petitioner/tenant on a monthly rent of Rs.300/ - as per kaichit dated 1.6.1985. The present rent of the building is Rs.900/ - per month. She had paid rent up to and inclusive of August 2010 and thereafter kept it in arrears. The husband of the revision petitioner who had taken the building for running a petty stationery business, died during August, 2010. Even prior to that, the building remained closed for more than a year and it used to be opened by the tenant only occasionally. After the death of the original tenant, his tenancy right in respect of the building devolved upon the revision petitioner and others. No business is being conducted in the petition schedule building and it is lying closed permanently. The landlord/respondent herein bonafide requires the petition schedule building and other rooms for starting display and sale of furniture and ancillary items. He had come back from Middle East two years back as he lost his job and he is sitting idle without any job. He has no intention to go back and his intention is to do furniture business in the petition schedule building as also the adjacent room, which is in the possession of Hamsa and he is taking steps to get that room also vacated. He is hale and healthy. His wife and children are depending on him. He has previous experience in the field of the proposed business and is having financial background as well. He has no suitable vacant buildings in his direct or indirect possession. The petition schedule building is situated in an ideal place near Cherukunnu, Thara junction near Payangadi road. He can also avail loan from the banks in order to start the proposed business. The tenant is not depending on the income derived from the business conducted in the petition schedule building and all her children are working abroad and are self sufficient. There are other rooms available in the locality for shifting the business as well. Though a notice has been issued requesting her to surrender possession, it was returned with the endorsement 'not known'. So the respondent/landlord has no other remedy except to approach the court by filing an application for eviction under sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Act for short.

(2.) The revision petitioner, who is the respondent in the rent control petition entered appearance and filed a counter statement contending as follows:

(3.) The petition is not maintainable. The revision petitioner/tenant had filed O.S.No.18 of 2011 against the landlord/respondent herein for an injunction restraining him from dispossessing the tenant by force when he tried to trespass into the petition schedule building. The monthly rent is Rs.900/ - but no amount is in arrears. It is false to contend that the petition schedule building was lying closed even during the life time of this revision petitioner's predecessor. There is absolutely no basis in contending that the building is lying closed. The husband of the revision petitioner was conducting a cool bar under the name and style "Good Luck" cool bar and after his death, she is continuing the business with the help of her son -in law. The allegation that the respondent herein requires the petition schedule building for staring a business and he has got previous experience and financial back ground etc is not correct. He is aged 70 years and is leading a retired life. He was abroad for many years and hence there is no need for him to start any business. Even if he wants to start a business, his own multi storied buildings in his possession that are lying vacant are available. The revision petitioner/tenant is aged 60 years and has no property or other source of income. Due to the untimely death of her husband, she has no other way except to continue the business and she is solely depending on the income from the business conducted in the petition schedule building. No buildings are available in the locality for her to shift the business. She had not received any notice. So, the landlord is not entitled to get the relief. She prayed for dismissal of the application.