SHAMSUDEEN Vs. RAZIYA AND ORS.

JUDGEMENT

(1.) The tenant/respondent No. 1 in R.C.P. No. 148 of 2006 on the file of the Rent Control Court, Ernakulam is the revision petitioner in R.C.R. No. 106 of 2012 while the landlords/petitioners in the same case is the revision petitioner in R.C.R. No. 137 of 2012. The tenant/respondent No. 1 in R.C.P. No. 147 of 2006 is the revision petitioner in R.C.R. No. 130 of 2006. R.C.P. No. 147 of 2006 was filed by the landlords/petitioners for eviction of the petition schedule building on the ground of reconstruction under Sec. 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. It is alleged in the petition that building No. 40/9581 which is the petition schedule building belonged to Iqbal and after his death, his right in the the said building devolved on his mother Fathima and the petitioners. Fathima executed settlement deed No. 1849/2006 of S.R.O., Ernakulam by which she transferred her undivided share in respect of the petition schedule building in favour of the petitioners in the rent control court. They are the absolute owners of the petition schedule building. The father of the respondent/tenant, late Devassy, took the petition schedule building on rent from the predecessor of the petitioners and was conducting a tailoring shop therein in the name and style "Style Raj Tailors". After the death of Devassy, the tenancy right in the petition schedule building devolved on the respondents who are his wife and children. The rent of the petition schedule building was Rs. 60/ - per month. It is in arrears from September 1996 to April 2006. It is part of a line building and the entire building is more than hundred years old and that it is in a dilapidated condition which requires immediate reconstruction. Apart from this, the petition schedule building is situated in the heart of Kochi city at Pulleppady junction, in the most important commercial area. New constructions are coming up in that area and if the building is reconstructed, it can be put to more profitable use for the petitioners. So, they bonafide want to demolish the entire building including the petition schedule building and construct a new shopping complex. They have got approved plan and permit with MOP No. 1/118/2002 dated 26.7.2006 from the Corporation of Kochi for reconstruction of the petition schedule building along with other buildings owned by them. They have got the financial capacity to reconstruct the building. The entire building will have to be demolished for the purpose of reconstruction. So, they bonafide require the petition schedule building for reconstruction. They sent a notice to the first respondent calling upon them to pay the arrears of rent with interest and surrender the building for the purpose of reconstruction and also to intimate the details of other legal heirs, if any, of late Devassy. Though the notice was received, they did not send any reply. So, the petitioners had no other option except to approach the court praying for an order of eviction under Ss. 11(2)(b), 11(4)(iii) and 11(4)(iv) of the Act.

(2.) Respondents 2 to 6 remained ex -parte.

(3.) The first respondent filed objection contending as follows: On the death of Devassy, the first respondent alone was in possession of the premises as the tenant and thereafter he attorned to the landlords and they accepted the first respondent as the sole tenant. The first respondent was paying rent regularly till October, 2005. Thereafter, the landlords were not prepared to receive the rent. The first respondent was always ready and willing to pay the arrears of rent from October, 2005. He is liable to pay arrears only from October, 2005. It is not correct to say that the entire building including the petition schedule building is more than hundred years old and it is in a dilapidated condition. No part of the building is so weak so as to require reconstruction. The idea is to demolish the petition schedule building and other buildings in the compound and thereafter construct a new building and to sell the same to others. It is not in such a condition which requires reconstruction. The other allegation that they have got the financial capacity and obtained a plan, etc. are not correct. The plan was obtained in violation of the Building Rules. There is a proposed approach road to the Pulleppady Railway Overbridge and the alleged plan does not contain any room having area and location similar to the petition schedule building. They cannot construct the building without leaving open space from the main road. So, construction is not possible. So, they prayed for dismissal of the petition.