IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
R.C.REV.NO. 72 OF 2022
AGAINST THE JUDGMENT DATED 20.02.2021 IN R.C.A.NO.118 OF 2019
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT
JUDGE), VATAKARA AND THE ORDER DATED 19.07.2019 IN
R.C.P.NO.28 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF),
NADAPURAM
REVISION PETITIONER:
THAZHE ILLATH SURESH BABU
AGED 51 YEARS, S/O.KRISHNAN,
RESIDING AT 'THAZHE ILLATH', THUNERI AMSOM, DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT - 673 505.
BY ADVS.
SREEDEVI KYLASANATH
ACHUTH KYLAS
JOSELAL GEORGE
R.MAHESH MENON
DEAGO JOHN K
AMAL DEV C.V.
P.PPRANIL
RESPONDENT:
PUTHIYOTTIL JAYAPRAKASH
AGED 47 YEARS, S/O.BALAN,
RESIDING AT PUTHIYOTTIL, THUNERI AMSOM, DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT - 673 505.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
R.C.Rev.No.72 of 2022
ORDER
Ajithkumar, J.
The respondent in R.C.P.No.28 of 2017 of the Rent Control Court (Munsiff), Nadapuram, is the revision petitioner. The respondent herein is the landlord. He filed the said R.C.P. and also R.C.P.No.29 of 2017 seeking eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 of the respective tenants. The petitions were allowed. The petitioner filed R.C.A.No.118 of 2019 and the tenant in R.C.P.No.29 of 2017 filed R.C.A.No.117 of 2019 before the Rent Control Appellate Authority (Additional District Judge), Vatakara under Section 18(1)(b) of the Act. The Appellate Authority dismissed both the appeals. This petition under Section 20 of the Act is filed assailing the order of eviction of the Rent Control Court, which stands confirmed by the judgment dated 20.02.2021 of the Appellate Authority.
2. When this matter came up for admission, we have heard the learned counsel appearing for the petitioner in detail.
3. The respondent-landlord owns three adjoining rooms. He is employed abroad. He plans to come home and start a stationery business, making use of the said three rooms, taking into account the uncertainty of his employment due to the present economic 3 R.C.Rev.No.72 of 2022 crisis and nationalisation by the Government there. In order for that purpose, he seeks eviction of the tenants in two of the rooms, the petitioner herein and the respondent in the connected matter, R.C.P.No.29 of 2017, having the third room available vacant with him.
4. The Rent Control Petition was resisted by the respondent contending that the petitioner is a very rich man having no need or necessity to start a stationery business and if at all, he requires to start the said business, the other rooms are fairly sufficient for the purpose. The petitioner further contended that his only source of livelihood is the income derived from the business in the petition schedule shop room and no other vacant room is available in the locality to shift his business.
5. The Rent Control Court during trial of the cases recorded oral testimonies of PW1 and RW1. Exts.A1 and B1 to B8 were received in evidence. After considering the said evidence in detail, the Rent Control Court came to the conclusion that the need urged by the respondent is bona fide and the reasons put forward by the respondent for non-occupying the vacant room available with him was sufficient and acceptable. The claim of the petitioner based on the second proviso to Section 11(3) of the Act was declined holding 4 R.C.Rev.No.72 of 2022 that the evidence was insufficient to prove that the petitioner has been depending for his livelihood solely on the income derived from the business in the petition schedule shop room and also that no other vacant building is available to shift his business.
6. The above said findings were seriously assailed by the petitioner before the Appellate Authority. It is seen that the entire evidence was re-appreciated by the Appellate Authority before concurring with the aforesaid findings of the Rent Control Court. Resultantly, the Appellate Authority dismissed the appeal.
7. The learned counsel appearing for the petitioner would submit that the respondent being employed abroad and an affluent person, there is no likelihood of his coming home and starting a petty trade like stationary business. Another contention highlighted is that, if the need urged is a genuine one, he would have started the business in the room already available with him, vacant. It is further contended that the courts below did not properly consider the evidence in regard to the said aspects and therefore, the finding regarding the bona fide is liable to be reversed.
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, 5 R.C.Rev.No.72 of 2022 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 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 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 6 R.C.Rev.No.72 of 2022 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.
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 7 R.C.Rev.No.72 of 2022 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.
11. It is true that the respondent did not produce any independent evidence in order to substantiate his plea that he bona fide in need of the petition schedule shop room to start a stationery business. The respondent himself deposed as PW1 before the court in detail regarding his idea to start the stationary business. It is his definite version that not only the petition schedule room but other two rooms also are required to accommodate the stationary business, which he plans to start. The petitioner admittedly is employed abroad. He deposed that as a result of the uncertainty of his employment due to the present economic crisis and 8 R.C.Rev.No.72 of 2022 nationalisation by the Government there he was bound to come back. The economic crisis gripping the world over is a matter of common knowledge. Not only the respondent, the petitioner also might be a victim of it. But when the respondent asserts that he has been compelled to come back and therefore he wants to start a business of his own in the shop rooms which he owns, it cannot be said the same is not a genuine or honest one. The fact that the respondent is rich is not a reason to say that his plan to start a business of his own is illogical or malafide. We are of the view that findings rendered by the courts below that the need urged by the respondent is bona fide is not liable to be interfered with, in the light of the evidence adverted to above.
12. In order to get the benefit of the first proviso to Section 11(3) of the Act, the petitioner banked upon the fact that one adjoining room is available vacant with the respondent. We found above that the need urged by the respondent that he wants to start the stationary shop making use of three rooms, one of which is the said vacant room. Therefore the said contention of the petitioner cannot be accepted.
13. As per the second proviso to Section 11(3) of the Act, the Rent Control Court shall not give any direction to a tenant to 9 R.C.Rev.No.72 of 2022 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. A Full Bench of this Court in Francis v. Sreedevi Varassiar [2003 (2) KLT 230] held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience.
14. Although the petitioner claimed the benefit of second proviso to Section 11(3) of the Act the evidence let in by him to establish that claim is scanty. The oral assertions of RW1 without any supporting material, cannot be acted upon to hold that the only income he derives is from the business in the petition schedule shop room. No independent material regarding the volume, quantum, turnover, etc. of his business has not been produced. It was in such circumstances, the courts below concurrently found that the income from the business in the petition schedule shop room was not the sole income for his livelihood. Regarding non- availability of vacant buildings in the locality also no reliable 10 R.C.Rev.No.72 of 2022 evidence has been produced. As referred to above, it is the absolute burden of the tenant to establish that no such room is available. Mere oral testimony of the tenant ordinarly is not enough to prove that fact. Especially when it is seen from the evidence on record that several rooms are lying vacant in the locality, the explanation offered by RW1 regarding the vacant buildings pointed out as available is not at all satisfactory. In the said circumstances, only possible finding is that the petitioner failed to prove the ingredients of the second proviso to Section 11(3) of the Act. The concurrent finding of the courts below on this respect also is devoid of any perceivable defect.
15. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 11 R.C.Rev.No.72 of 2022 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be at its discretion.
16. 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 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.
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17. In T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275] the Apex Court held that, the words 'to satisfy itself' employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below.
18. In Ubaiba v. Damodaran [(1999) 5 SCC 645] the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in Rukmini Amma Saradamma it was contended that, however wide the jurisdiction of the revisional 13 R.C.Rev.No.72 of 2022 court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression 'propriety' in Section 20 of the Act, the revisional court will not be entitled to re- appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist.
19. 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 14 R.C.Rev.No.72 of 2022 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 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.
20. In Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412] considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction.
21. 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 Court, on the 15 R.C.Rev.No.72 of 2022 ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it.
22. The learned counsel for the petitioner has made a request to afford six month's time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business.
23. 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 petitioner-landlord within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule 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;
16R.C.Rev.No.72 of 2022
(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 petitioner- landlord 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