Kerala High Court

Sahida vs V.C. Purushu 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.223 OF 2016
  AGAINST THE JUDGMENT PASSED BY THE RENT CONTROL APPELLATE
   AUTHORITY(ADDITIONAL DISTRICT JUDGE), VATAKARA IN RENT
 CONTROL APPEAL NO.6 OF 2014 DATED 12.02.2016 FILED AGAINST
THE ORDER PASSED BY THE RENT CONTROL COURT(MUNSIFF), VATAKARA
          IN R.C.P.NO.43 OF 2013 DATED 04.12.2013
REVISION PETITIONER:

          SAHIDA
          AGED 44 YEARS
          D/O.IBRAHIM HAJI, EDAKOZHINHIYIL HOUSE,
          KUNNUMMAKKARA AMSOM, DESOM, KUNNMMAKKARA P.O.,
          VADAKARA TALUK, KOZHIKODE DISTRICT.
          BY ADVS.
          SRI.R.BINDU (SASTHAMANGALAM)
          SRI.PRASANTH M.P


RESPONDENT:

          V.C.PURUSHU
          AGED 54 YEARS
          S/O.NANU, RESIDING AT VELLACHALAI, NEAR KUNHIPALLY
          RAILWAY GATE, KUNHIPPALLY AMSOM, DESOM, CHOMBALA
          (P.O), VADAKARA TALUK, KOZHIKODE DISTRICT,
          PIN-673 308.
          BY ADV.
          U.K.DEVIDAS

     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 29.03.2022, THE COURT ON 22.04.2022 DELIVERED THE
FOLLOWING:
                                   2

RCR No.223 of 2016

                             ORDER

Ajithkumar, J

This Rent Control Revision under Section 20 of the Kerala

Buildings (Lease and Rent Control Act), 1965 was filed by the

landlady. She filed R.C.P.No.43 of 2013 in Rent Control Court

(Munsiff), Vatakara seeking eviction of the respondent-tenant from

the petition schedule shop room under Section 11(2)(b) and 11(3)

of the Act. The Rent Control Court dismissed the Rent Control

Petition. The petitioner preferred an appeal under 18(1) (b) of the

Act as R.C.A.No.06 of 2014 before the Rent Control Appellate

Authority (Addl. District Judge), Vatakara which was dismissed.

Feeling aggrieved thereof, this revision was filed.

2. On 19.07.2016, this revision was admitted and notice

was ordered to be served on the respondent.

3. Heard the learned counsel appearing for the petitioner

and also the learned counsel appearing for the respondent.

4. The Rent Control Petition was filed seeking eviction on

the grounds that respondent has defaulted payment of rent at the

rate of Rs.900/- per month since 31.03.2011 and that the

petitioner was in need of the petition schedule shop room, for her

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daughter Irfana who is pursuing degree in B.Pharm to start a retail

medical shop. Ms.Irfana is a dependent of the petitioner and

neither of them has in her possession any other building or room

suitable for that purpose. The respondent resisted the rent control

petition contending that solely because he was unaware of the

purchase of the petition schedule shop room by the petitioner, rent

was not paid to her. But he already deposited the entire rent in

arrears before the Court. The need urged by the petitioner is not

bonafide. The respondent also contended that landlady has other

rooms in her possession, whereas the respondent who is

depending for his livelihood on the income derived from the

grocery business being conducted in the petition schedule shop

room and no other suitable building or room is available in the

locality to shift his business.

5. The Rent Control Court recorded oral testimonies of

PWs 1 and 2 and RW1. Exts.A1 to A3, B1, B2, C1 and C1(a) were

received in evidence. The Rent Control Court after appreciating the

said evidence found that the need urged by the petitioner was

bonafide and PW2, Irfana is a dependent of PW1, the petitioner.

The Rent Control Court also found that the petitioner is not in

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possession of any building or room which can be suitably used for

the projeccted need. However, the second provisos was answered

in favour of the respondent. Resultantly, the plea for eviction was

declined. As regards eviction sought on the ground of arrears of

rent, no enquiry was required for, the respondent had already

deposited the arrears of rent and PW1, the petitioner admitted

that she had no further grievance that there is arrears of rent.

6. The challenge of the petitioner to the order of the Rent

Control Court before the Appellate Authority was successful in part

only. After re-appreciating evidence, the Appellate Authority held

that in the light of the convincing testimony of PW1 and the

attending circumstances, the need urged by the petitioner was

bonafide. Regarding the non-availability of other vacant rooms

with the petitioner the Appellate Authority took the view that there

is no evidence to hold the point in favour of the respondent-

tenant. The Appellate Authority also had concurred with the finding

of the Rent Control Court in respect of the first limb of the second

proviso to Section 11(3) of the Act, that the respondent is

depending for his livelihood solely on the income derived from the

business in the petition schedule shop room, although did not

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agree with the finding as regards the second limb. The eventual

finding was dismissal of the petition for eviction.

7. 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 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

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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.

8. 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 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

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need so as to convince the court that it is not a mere fanciful or

whimsical desire.

9. 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.

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10. PW1 deposed that her daughter Irfana, who is PW2,

completed B.Pharm and she wanted to start a medical shop in the

petitioner schedule shop room. PW2 also deposed that she having

acquired the required qualification desires to open a retail medical

shop for which she can make use of the petition schedule shop

room only. Challenge to their evidence is that they are very rich

having no need to start such a business. Moreover, she is

inexperinced in conducting a business. Both Courts below

considered in detail that evidence in the light of the relevant

precedents. In Thankamony Amma v. Omana Amma [AIR

2019 SC 3803] 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. Therefore, there is no reason for us to interfere with

such a concurrent finding rendered by the Courts below in exercise

of the powers of this Court under section 20 of the Act.

11. It was contended by the respondent that two rooms in

the upstairs of the building in question were constructed by the

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petitioner and the same can be used for her projected need. From

Ext.C1 report and other evidence on record it is seen that the said

upstairs rooms were under construction only. RW1 has admitted

during cross examination that the said rooms were still incomplete

and the petitioner did not possess any other vacant room.

Therefore it cannot be said that any vacant room suitable for the

projected need of PW2 is available with either PW1 or PW2. It

follows that the respondent cannot claim the benefit of the first

proviso of Section 11(3) of the Act. The courts below rightly had

held this point in favour of the petitioner.

12. The learned counsel appearing for the petitioner would

submit that there is total dearth of evidence to prove the

ingredients of the second proviso to Section 11(3) of the Act, but

the authorities below in total misunderstanding of the evidence,

answered the point against the petitioner. Both the Rent Control

Court as well as the Appellate Authority found that the only

income on which the respondent can depend for his livelihood is

that from the business in the petition schedule shop room. The

respondent is conducting a grocery shop in that room. Other than

his oral testimony, he did not produce any evidence in that regard.

RCR No.223 of 2016

However, the authorities below did not accept the case of the

petitioner. Rent Control Court also had found that the respondent

proved that no other suitable building or room is available in the

locality to shift his business. The Appellate Authority considered

the evidence of RW1 and Exts.C1 report in detail, and in reversal

of the said finding, concluded that evidence let in by the

respondent was insufficient to prove non availability of other

vacant rooms in the locality.

13. 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. 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.

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14. In Ammeer Hamsa v. Ramabhadran and another

[2019 (2) KHC 465] a Division Bench of this Court held that, it is

trite law that both limbs under the second proviso to Section 11(3)

of the Kerala Buildings (Lease and Rent Control) Act are

conjunctive and the burden of proof is on the tenant. Thus, the

legal position has been settled by a long line of decisions and the

courts below have rightly placed reliance upon those decisions.

Vide: Narayanan Nair v. Pachumma [1980 KLT 430],

Prasannan v. Haris [2005 (2) KLT 365], Vineethan v.

Fathima and others [2016 (1) KHC 631]. In view of the legal

position well settled by the aforesaid decisions, the landlord is not

required to plead or prove other sources of income of the tenant.

That apart, income is a fact which remains exclusively in the

knowledge of each person only and another person cannot adduce

evidence to prove income. Merely on the reason that the landlord

has stated that the tenant has other sources of income and he is

not mainly depending upon the income from the business carried

on in the tenanted premises, for his livelihood and he failed to

prove so, the tenant cannot escape from the burden of proof cast

on him under the first limb of the second proviso to Section 11(3)

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of the Act. Where the statutory provision itself explicitly imposes

the burden of proof on a party to the lis, there cannot be any

variation whatever be the pleadings of the other party in that

respect. The second proviso to Section 11(3) is an exception to

the principal provision, granting protection to the tenant. When

the second proviso itself imposes the burden of proof on the

tenant, the question whether the landlord has pleaded or proved

the facts constituting the said proviso is insignificant and

irrelevant. Even if the landlord pleaded so, the burden of proof will

not be shifted to him. Since the second proviso to Section 11(3) is

an exception to the principal provision, which would dis-entitle the

landlord to get the order of eviction under Section 11(3), the

burden of proof, under the said proviso is always on the tenant

and unless the burden of proof under the second proviso is

discharged satisfactorily, the tenant is not entitled to get

protection under the said proviso to Section 11(3) of the Act.

15. The respondent as RW1 deposed that his only income

was from the small scale grocery business in the petition schedule

shop room. His family comprising himself, wife and children are

depending for their livelihood on the said income alone. It is his

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version that his daily profit is just Rs.200/- and that he has no

other sources of income. It may be said that the business being

not on a large scale, he might not be maintaining any accounts.

But, when it is the burden of the tenant to prove satisfactorily that

he has no other income than that from the tenanted premises, he

is expected to produce some independent evidence regarding his

income. In the absence of any such evidence, it cannot be said

that the respondent has satisfactorily discharged his burden. Of

course, both the authorities below concurrently found that the

evidence of RW1 was reliable and sufficient to prove that he has

been depending for his livelihood solely on the income derived

from the business in the petition schedule shop room. We do not

think that the said finding is totally perverse and hence we do not

want to interfere with that finding.

16. The observations of the Appellate Authority regarding

availability of alternative vacant rooms in the locality are that RW1

did not make any enquiry and the oral testimony of PW1 read with

Ext.C1 report would probabilise that there are other vacant rooms

available in that area. Two rooms seen closed down have been

pointed out by the Commissioner in Ext.C1. PW1 deposed that

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besides the said rooms, several vacant rooms are available at

Chirayil peedika, a place just 500 metres away. When these facts

were put during cross-examination, RW1 maintained that he did

not enquire about any such room. As pointed out above, it is the

absolute burden of the tenant to prove non availability of any

other alternative accommodation. The respondent without making

any enquiry, regarding such availability, cannot contend that no

other room is available for shifting his business. He, for that

reason, is unable to deny also the availability of rooms pointed out

by PW1 and also the Advocate Commissioner. In the light of the

said evidence, the conclusions arrived at by the Appellate

Authority can only be upheld.

17. Both limbs under the second proviso to Section 11(3) of

the Act are conjunctive. Even if the tenant succeeded in proving

one of the limbs, that will not help him to avail the help of the

second proviso. The Appellate Authority found the first limb in

favour of the tenant and the second limb against him. However,

the authority proceeded to hold that the respondent was entitled

to get the benefit of the second proviso. The said finding is wrong

and is liable to be reversed. The necessary corollary is that

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judgment of the Appellate Authority dismissing the Rent Control

Petition by concurring with the order of the Rent Control Court is

liable to be set aside. R.C.P.No.43 of 2013 on the files of the Rent

Control Court, Vatakara is therefore liable to be allowed.

18. Hence we allow this revision. On setting aside the order

dated 04.12.2013 in R.C.P.No.43 of 2013 and the judgment dated

12.02.2016 in R.C.A.No.06 of 2014 of the Appellate Authority,

R.C.P.No.43 of 2013 is allowed.

19. The learned counsel appearing for the respondent would

submit that at least nine months may be granted for surrendering

of the petition schedule shop room to the petitioner.

20. After taking into account all the circumstances, we

deem it appropriate that seven months' time can be granted to the

respondent 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-landlady within seven months from

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the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further they shall conduct any business in the petition schedule shop room 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 month, 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-landlady will be at liberty to proceed with the execution of the order of eviction.