IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
R.C.REV.NO. 1 OF 2019
AGAINST THE JUDGMENT DATED 17.09.2018 IN R.C.A.NO.17 OF 2017
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT
JUDGE-II), KALPETTA AND THE ORDER DATED 24.10.2017 IN
R.C.P.NO.5 OF 2010 OF THE RENT CONTROL COURT (MUNSIFF),
KALPETTA
REVISION PETITIONER:
K.N.NARAYANAN,
AGED 68 YEARS, S/O.NARAYANA SWAMI,
KANTHALLOOR MADAM,
VELLINAZHI AMSOM DESOM,
PALAKKAD DISTRICT, NOW BUSINESS,
KAVITHA EMBORIUM, GOODALAI,
KALPETTA POST,
KALPETTA AMSOM DESOM,
VYTHIRI TALUK,
WAYANAD DISTRICT.
BY ADVS.
SRINATH GIRISH
V.NAMITHA
RESPONDENTS:
1 KHADEEJA,
AGED 66 YEARS, D/O.KUNJAMMAD,
KANDILERI HOUSE, GOODLAIKUNNU,
KALPETTA AMSOM DESOM,
WAYANAD DISTRICT- 673121.
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R.C.Rev.No.1 of 2019
2 SUMMAYYA,
AGED 42 YEARS, W/O.SHARAFUDHEEN, VEMAM,
MANANTHAVADY POST, MANANTHAVADY TALUK,
NOW RESIDING AT KANDALERI HOUSE, GOODALAI,
KALPETTA POST, KALPETTA VILLAGE- 673121.
BY ADV SMT.JAYASREE K.P.
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 29.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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R.C.Rev.No.1 of 2019
ORDER
Ajithkumar, J.
The respondent-tenant in R.C.P.No.5 of 2010 on the files of the Rent Control Court (Munsiff), Kalpetta, is the petitioner. He filed this revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, aggrieved by the order in R.C.P.No.5 of 2010, which stands confirmed by the judgment dated 17.09.2018 in R.C.A.No.17 of 2017 of the Rent Control Appellate Authority (Additional District Judge-II), Kalpetta.
2. On 07.01.2019, this revision was admitted. Execution of the order in R.C.P.No.5 of 2010 was stayed initially for a period of three weeks. That order was extended from time to time and is still in force.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
4. The 1st respondent filed R.C.P.No.5 of 2010 seeking eviction of the petitioner under Section 11(3) of the Act. The need urged was that her daughter's husband, 4 R.C.Rev.No.1 of 2019 Sri.Sharafudeen, wanted to start a hardware business in the petition schedule shop room. The petitioner took up a contention that the 1st respondent was not the owner of the shop room, and therefore, the rent control petition was not maintainable at her instance. The Rent Control Court, accepting that contention, dismissed the rent control petition. The 1st respondent filed an appeal under Section 18(1)(b) of the Act before the Appellate Authority. In the appeal, the 2 nd respondent got impleaded. The Appellate Authority took the view that having the amendment related back to the date of filing of the petition and the need urged has been proved, the respondents were entitled to get an order of eviction. The appeal was accordingly allowed. The petitioner took up the matter in revision and this Court allowing the revision remanded the matter to the Rent Control Court for fresh consideration. Accordingly, the Rent Control Court rendered the order dated 24.10.2017 ordering eviction of the petitioner on the ground of bona fide need for own occupation. The said order was challenged in R.C.A.No.17 of 2017. That appeal was 5 R.C.Rev.No.1 of 2019 also dismissed. Challenging that concurrent finding, this revision was filed by the petitioner under Section 20 of the Act.
5. Evidence in the case comprises oral testimonies of PW1, PW2 and RW1. Exts.A1 to A6, B1 to B5 and C1 were marked.
6. The 2nd respondent is PW2. Her title to the petition schedule shop room is now beyond dispute. Her husband Sri.Sharafudeen requires the petition schedule shop room for starting a hardware business. PW1 is the 1st respondent. Both PWs.1 and 2 deposed regarding the need. Ext.A5 would show that in the year 1988, the 1 st respondent assigned title to the said room in favour of the 2 nd respondent. Their contention that Sri.Sharafudeen is a dependent for the purpose of getting a shop room for him to start a business is contested by the petitioner. It is alleged that Sri.Sharafudeen has several shop rooms at Mananthavady and he is immensely rich, and therefore, he need not depend his wife to have a shop room. But, there is absolutely no evidence to show that 6 R.C.Rev.No.1 of 2019 Sri.Sharafudeen has any building, either at Mananthavady or at Kalpetta. It may be correct that Sri.Sharafudeen has enough means and funds. That does not mean he is not dependent insofar as the requirement of getting a room for him to start a business. In the absence of any evidence that he has a building or room of his own, which can be used for the projected need, he can only be said to be a dependent of his wife, PW2.
7. Regarding the ability of Sri.Sharafudeen to start the proposed business, there is not much dispute. Whether he needs to start such a business or not is a matter within the realm of the landlords. What the court can look into is whether such a need was projected with bona fides.
8. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(3) of the Act, a landlord may apply 7 R.C.Rev.No.1 of 2019 to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.
9. In Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476] the Apex Court 8 R.C.Rev.No.1 of 2019 reiterated that, as laid down in Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in Deena Nath v. Pooran Lal [(2001) 5 SCC 705] bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.
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10. In Ammu v. Nafeesa [2015 (5) KHC 718] a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. In Gireeshbabu T. P. v. Jameela and others [2021 (5) KHC SN 30] this Court reiterated that in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 10 R.C.Rev.No.1 of 2019
11. The courts below considered the oral testimony of PWs.1 and 2 and also the attending circumstances. RW1, the petitioner, did not point out during examination in court that Sri.Sharafudeen is engaged in any avocation now. On the basis of that evidence the Courts below took the view that the need urged by the respondent is a bona fide one. Applying the principle of law laid down by the Apex Court and this Court in the aforesaid decisions, we do not find any infirmity to the said finding. Therefore, we are not expected to interfere with the same.
12. The petitioner did not point out any particular building or room as available vacant with the respondents or Sri.Sharafudeen. It came out in evidence that the respondents own two other rooms. But the said rooms are proved to be in the possession of other tenants. Since the respondent did not adduce any evidence to show that the respondents are in possession of any vacant room with them, the provisions of first proviso to Section 11(3) of the Act cannot be invoked so as to decline the claim of eviction.
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13. The petitioner is conducting a furniture business in the petition schedule shop room. He contended that his only source of income is his business and he is depending solely on that income for his livelihood. The courts below took the view that in the absence of any evidence other than the oral testimony of RW1, the said contention could not be believed. He claims to have been conducting the furniture business for years together. But absolutely no document has been produced regarding the volume of business and the income he has been deriving or any such other document. In such circumstances, it is not able to say that his only source of income is from the petition schedule shop room and he can depend on that alone for his livelihood.
14. RW1 further deposed that no other alternative building is available in the city, which is suitable for shifting his business. The respondents have produced Ext.A4 series, copies of building tax assessment register, from which it is seen that so many rooms are available in the nearby locality. Whether such rooms were vacant and available for the 12 R.C.Rev.No.1 of 2019 petitioner to take on rent is a matter for him to prove. His oral testimony does not show that he had enquired regarding the availability of such rooms. That being the nature of evidence, it is quite impossible to say that the petitioner has substantiated his plea that no other suitable building or room for shifting his business is available in the locality. It goes to show that the courts below rightly had declined the plea of the petitioner under the second proviso to Section 11(3) of the Act.
15. In Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499], the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and 13 R.C.Rev.No.1 of 2019 revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word 'propriety' it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it.
16. In Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78] a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in Rukmini Amma Saradamma the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench 14 R.C.Rev.No.1 of 2019 agreed with the view of the Three-Judge Bench in Rukmini Amma Saradamma that the word 'propriety' does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it.
17. In Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412] after considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh (supra) the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could not re-appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.
18. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control 15 R.C.Rev.No.1 of 2019 Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it.
19. The learned counsel for the petitioner has made a request to afford eight months' time for vacating the premises pointing out the difficulty in getting another room and making necessary arrangements for shifting his business. The learned counsel for the respondent has conceded that a reasonable time can be afforded by this Court.
20. Having considered all the aspects, we deem it appropriate to grant six months' time to surrender vacant possession of the petition schedule shop room, subject to the following conditions:
(i) The respondent-tenant 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 he will surrender vacant possession of the petition schedule shop room to the petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule 16 R.C.Rev.No.1 of 2019 shop room and further he shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities;
(ii) The respondent-tenant 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 four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default;
(iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with 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 petitioners-landlords will be at liberty to proceed with the execution of the order of eviction.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE dkr