Kerala High Court

Senior Superintendet Of Post ... vs Zuhara Iqbal on 22 April, 2022

          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 22ND DAY OF APRIL 2022 / 2ND VAISAKHA, 1944
                   R.C.REV.NO.14 OF 2021
ARISING FROM JUDGMENT DATED 13.12.2018 IN R.C.A.NO. 121 OF
   2017 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY,
KOZHIKODE AGAINST THE ORDER DATED 12.04.2017 IN R.C.P.No.70
  OF 2015 ON THE FILE OF THE RENT CONTROL COURT(ADDITIONAL
                   MUNSIFF II), KOZHIKODE
REVISION PETITIONER:

    1    SENIOR SUPERINTENDENT OF POST OFFICES
         CALICUT DIVISION, KOZHIKODE 673 005
    2    POST MASTER
         CHEVAYUR POST OFFICE, KOZHIKODE 673 017
         BY ADV
         SRI.S.BIJU, CGC


RESPONDENT:

         ZUHARA IQBAL
         AGED 57 YEARS, D/O.KUNHALIKUTTY HAJI, FASNA
         COTTAGE, POOKKOTTOOR, KONDOTTY TALUK,
         MALAPPURAM - 676 517
         BY ADVS.
         SRI.R.SUDHISH
         SMT.M.MANJU


     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 29.03.2022, THE COURT ON 22.04.2022 DELIVERED
THE FOLLOWING:
                                        2
R.C.Rev.No.14 of 2021


                               ORDER

Ajithkumar, J.

The respondent-landlady filed R.C.P.No.70 of 2015

before the Rent Control Court (Additional Munsiff-II),

Kozhikode, seeking eviction of the petitioners-tenants under

Section 11(3) of the Kerala Buildings (Lease and Rent Control)

Act, 1965. The Rent Control Petition was allowed as per order

dated 12.04.2017. The appeal preferred by the petitioners

under Section 18(1)(b) of the Act as R.C.A.No.121 of 2017

was dismissed by the Rent Control Appellate Authority

(District Judge), Kozhikode as per judgment dated

13.12.2018. Feeling aggrieved thereof, this Revision Petition

under Section 20 of the Act was filed.

2. The respondent sought eviction projecting the need

that she wanted to start a ladies tailoring and garment shop

in the petition schedule room. The petition for eviction was

resisted by the petitioners by contending that the need urged

was not bonafide; the main reason being the respondent

before and after initiating the eviction petition sent

R.C.Rev.No.14 of 2021

communications to the 1st petitioner intimating her consent to

continue tenancy on the condition of payment of enhanced

rent. It was also contended that several other vacant rooms

are available in the possession of the respondent, where she

can conveniently start such a business. That apart, it was

alleged that the respondent does not want to start such a

business, since her husband is a successful business-man and

her children are professionals and well employed.

3. The Rent Control Court during trial examined PW1

and RW1 and received in evidence Exts.A1 to A3 and B1 to

B4. After considering the said evidence along with other

materials on record, the Rent Control Court held that the need

projected by the respondent was bona fide and resultantly

ordered eviction. The Appellate Authority re-appraised the

evidence in detail. Every contention raised by the appellants

was deliberated upon in detail in the light of the evidence

available on record. The Appellate Authority did not find any

reason to interfere with the findings of the Rent Control Court

and accordingly dismissed the appeal.

R.C.Rev.No.14 of 2021

4. The Revision Petition was admitted on 18.01.2021.

The order of eviction was stayed initially for a period of three

months. The order was extended from time to time.

5. Heard the learned Central Government Counsel for

the petitioners and the learned counsel for the respondent.

6. The learned Central Government Counsel appearing

for the petitioners would contend that the need urged by the

respondent, in any view, cannot be said bona fide. But the

courts below on an erroneous understanding of the evidence

entered into a finding in favour of the respondent. It is wrong.

PW1, the landlady, gave evidence to prove the need. It is her

version that she is experienced in tailoring and earlier she had

been running a tailoring unit at her house. She claimed that

by employing three staff, she conducted a tailoring unit for

about two years, and for want of necessary convenience and

facilities, she had to stop that venture. Now she wants to

commence a ladies tailoring unit along with a garment shop in

the petition schedule room.

7. The main reason for assailing the bona fides of

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PW1 is that her husband is a busy businessman and two

among her three children are Doctors and the third is an

Engineer. In such circumstances, it was not only unlikely, but

unable for PW1 to start an independent business of her own.

When the said facts were put to PW1, she explained that she

wants independent income and she does not want to depend

on her husband all throughout. When the respondent having a

building of her own wants to start an independent business

and it is proved that she is sufficiently experienced and

capable to conduct the proposed business, it is not for the

tenants or the court to decide whether her intention is

reasonable or logical. The court can only decide whether she

honestly and sincerely put forward such a need. In the cross-

examination of PW1, nothing has been brought out in order to

doubt her intention.

8. The learned Central Government Counsel appearing

for the petitioners further pointed out that the respondent

repeatedly demanded enhancement of rent and intimated the

1st petitioner about her consent to allow to continue the

R.C.Rev.No.14 of 2021

tenancy arrangement; provided rent is enhanced to

Rs.9,000/-. Exts.B1 to B4 are placed reliance on in support of

the contention. Ext.B2 and B3 are letters sent by the

respondent regarding enhancement of rent. Ext.B3 is a letter

sent after commencement of the eviction proceedings. The

petitioners attempted to bring on record one more letter in

the form of an e-mail communication sent by the respondent

to the 1st petitioner, almost in the same line. The said

document, which was produced before the Appellate Authority

was not received in evidence. That document was produced

along with I.A.No.2319 of 2018. The Appellate Authority took

the view that the said e-mail communication was produced

without proper certification as required in Section 65B of the

Evidence Act, refused to accept it in evidence. On considering

the submissions of the learned Central Government Counsel,

we are of the view that there is no reason to interfere with the

said order of the Appellate Authority.

9. Even if that e-mail communication is received, the

nature of evidence would not have any change. Ext.B3 is

R.C.Rev.No.14 of 2021

dated 04.03.2017. The contents of the so-called e-mail

communication has not much difference from the contents of

Ext.B3. The courts below considered the contention of the

petitioners in the light of Ext.B3 and turned down. In the said

circumstances, rejection of the e-mail communication does

not have any bearing in the result of this case.

10. It is seen that the respondent as per Exts.B2 and

B3 intimated her consent to continue the tenancy with a

caveat that there shall be enhancement in the rent. Ext.B4 is

a copy of the minutes showing that the Fair Rent Assessment

Committee of the Postal Department fixed the rate of rent at

Rs.7,500/-. It was after taking into account that also, the

respondent sent a letter intimating that such unilateral

fixation of rent was not acceptable and the tenancy could be

continued only if rent is enhanced. It is a matter of common

knowledge that it will take a considerably long period to

culminate an eviction proceedings. It is in that background

the communication sent by the respondent has to be

understood. She demanded enhancement of rent and when

R.C.Rev.No.14 of 2021

the petitioners decided unilaterally, she intimated that if rent

is enhanced as she demanded, the rental arrangement could

be continued. That cannot be interpreted as a ground to find

that the respondent does not come with bona fides in claiming

eviction of the petitioners.

11. 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 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

R.C.Rev.No.14 of 2021

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.

12. 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 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

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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.

13. 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

R.C.Rev.No.14 of 2021

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 proviso to Section 11(3) of the Act.

14. In the light of the definite version of PW1 and in

view of the other proven facts, the finding can only be that

the need urged by her is honest, sincere and therefore bona

fide. The findings of the courts below in this regard is

supported by sufficient evidence and justified in the light of

the principles of law laid down in the decisions referred to

above. Therefore, we find that it is inept for this Court to

interfere with the said concurrent finding, in exercise of

powers of this Court under Section 20 of the Act.

R.C.Rev.No.14 of 2021

15. Insofar as the first proviso to Section 11(3) of the

Act is concerned, absolutely no evidence has been let in to

prove the contention raised by the petitioners that the

respondent has been in possession of several other vacant

rooms. In such circumstances, the Rent Control Court as well

as the Appellate Authority concurrently found that the

provisions under the first proviso to Section 11(3) of the Act

has no application to the facts of the case on hand.

16. The petitioner schedule room was availed by the

petitioners for the functioning of a post office. The Chevayur

Police Office is functioning in the said room. Therefore, the

second proviso to Section 11(3) of the Act has no application.

17. 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,

R.C.Rev.No.14 of 2021

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.

18. 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

R.C.Rev.No.14 of 2021

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

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.

19. 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.

R.C.Rev.No.14 of 2021

20. 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 ground of illegality, irregularity or impropriety.

Hence this Revision Petition fails. We, accordingly, dismiss it.

21. Chevayur post office is functioning in the petition

schedule room. The learned counsel appearing for the

petitioners would submit that a reasonable period is required

to shift the post office by availing an alternative building. The

learned counsel appearing for the respondent would submit

that a period of six months is enough for that purpose. A post

office needs to be stationed in its local area. The petitioners,

therefore, require to locate a suitable building in the local area

itself for shifting the post office from the petition schedule

room. Taking into account all such aspects, we are of the view

that ten months time can be granted for the petitioners to

surrender vacant possession of the petition schedule room to

the respondent, subject to the following conditions:

(i) The respondents-tenant in the Rent Control Petition

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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 they will surrender vacant possession of the petition schedule room to the petitioner-landlady within ten months from the date of this order.

(ii) The respondents-tenant in the Rent Control Petition shall continue to pay damages for use and occupation of the petition schedule room at the present rate of rent for every succeeding month, without any default;

(iii) Needless to say, in the event of the respondents-

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 room will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction.