A P ABDURAHIMAN HAJI Vs. V N BALAKRISHNAN
LAWS(KER)-2003-3-94
HIGH COURT OF KERALA
Decided on March 25,2003

ANDHRA PRADESHABDURAHIMAN HAJI Appellant
VERSUS
V.N.BALAKRISHNAN Respondents

JUDGEMENT

- (1.) The revision petitioners are the landlords and the petitioners in R.C.P. No. 117 of 1984 on the file of the Rent Control Court, Kozhikode. The respondents are the tenants and the counter petitioners in the said Rent Control Petition.
(2.) The landlords filed the R.C.P. seeking eviction of the tenants under S.11(2)(b) and S.11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act"). According to the averments in the Rent Control Petition, the petition schedule property belongs to the petitioners. The property was originally entrusted to one V.N.Narayana Swamy on 2.3.1969 by the then landlord A.P.Chirukandan and Company. The original entrustment was for a period of six months on a monthly rent of Rs.60/-. In case of default of payment of rent, the tenant was liable to pay 6% interest. On 14.8.1972, the petition schedule building along with other properties devolved on the petitioners as per the registered Assignment Deed. Since the assignment deed of 1972, the plaint schedule property belonged to the petitioners and the said Narayana Swamy was paying the rent to the petitioners. The rent was subsequently enhanced to Rs.85/- per month. Afterwards Narayana Swamy expired and on behalf of his legal heirs, the eldest son Balakrishnan (first respondent in the R.C.P.) came into possession of the property and he was paying the rent. The rent was in arrears since October, 1983. Without the knowledge and consent of the petitioners, the first respondent Balakrishnan sub let the property to the third respondent, Chandran. The third respondent is conducting a barbar shop in the property. A lawyer notice was issued to the first respondent demanding arrears of rent and termination of the subletting. The first respondent did not terminate the sublease or pay the arrears of rent. Hence, the petitioners were constrained to file the petition for eviction on the grounds of arrears of rent and subletting.
(3.) Respondents 1 to 3 in the R.C.P. filed a counter disputing the case of the petitioners. According to them, the property was entrusted to V.N. Narayana Swamy by A.P. Chirukandan and Company. Ever since the entrustment, the property was used for the business of "Baloos Saloon, Hair Dressers". After the petitioners purchased the property, they insisted on enhancement of rent. It was the regular habit of the petitioners to harass the tenants by demanding enhancement of rent. After the death of Narayana Swamy, the tenancy right devolved on his heirs, i.e. his wife and children. All the heirs are not made parties to the petition. Hence, the R.C.P. is bad for non joinder of necessary parties. The respondents also denied that rent was in arrears. According to them, the petitioners were in the habit of collecting rent in a bulk. The first petitioner is a busy politician and not available for payment of rent. According to the respondents, there was no wilful default on their part in paying the rent. The respondents also denied the allegation of sub letting. According to them, the third respondent is not a total stranger and sublessee as alleged. He is none other than the husband of the second respondent and the brother in law of the first respondent. The petitioners are well aware of the relationship of the third respondent with respondents 1 and 2. The third respondent was associated with the business for the last several years. Even while Narayana Swamy was conducting the business, the third respondent was in the premises working there and managing the business. According to the respondents, the third respondent is not a sublessee or a transferee. It was also contended by the respondents that all the legal heirs of Narayana Swamy were entitled to tenancy right over the shop room but the Rent Control Petition was filed without due notice to all of them and hence, the petition was not maintainable.;


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