Basheer vs P.Ashraf Koya Thangal
2022 Latest Caselaw 9162 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT

        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                               &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
  MONDAY, THE 1ST DAY OF AUGUST 2022 / 10TH SRAVANA, 1944
                   R.C.REV.NO. 74 OF 2018
  AGAINST THE JUDGMENT DATED 31.10.2017 IN R.C.A.NO.266 OF
2016 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL
DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED 31.08.2016 IN
 R.C.P.NO.128 OF 2014 OF THE RENT CONTROL COURT (PRINCIPAL
                   MUNSIFF-I), KOZHIKODE
REVISION PETITIONER:

         ABBAS M.
         AGED 58 YEARS, S/O.ENI, SUBYBAS JEWELLARY,
         PALLIKKAL SHOPING COMPLEX, NEAR KODUVALLY BUS
         STAND, KODUVALLY.P.O, KODUVALLY AMSOM DESOM,
         KOZHIKODE DISTRICT.
         BY ADVS.
         SRI.P.R.SREEJITH
         SMT.MAYA CHANDRAN
         SRI.M.PROMODH KUMAR
         SRI.K.B.SAJEESH


RESPONDENT:

         P.ASHRAF KOYA THANGAL
         AGED 49 YEARS,S/O LATE ATTA KOYA THANGAL,
         PULLUNNI CHALIL HOUSE, PADANILAM.P.O, MADAVUR
         AMSOM DESOM, KOZHIKODE DISTRICT, NOW RESIDING AT
         ISHQRASOOL MANZIL, ARIBRA.P.O, MORAYOOR VILLAGE,
         KONDOTTY TALUK, KOZHIKODE DISTRICT-673649.
                               2
R.C.Rev.Nos.74 & 75 of 2018



            BY ADVS.
            SRI.P.K.BABU
            SMT.T.V.NEEMA



      THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 07.07.2022, ALONG WITH R.C.Rev.NO.75/2018, THE
COURT ON 01.08.2022 DELIVERED THE FOLLOWING:
                                  3
R.C.Rev.Nos.74 & 75 of 2018


           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 MONDAY, THE 1ST DAY OF AUGUST 2022 / 10TH SRAVANA, 1944
                       R.C.REV.NO. 75 OF 2018
AGAINST THE JUDGMENT DATED 31.10.2017 IN R.C.A.NO.265 OF
      2016 OF THE RENT CONTROL APPELLATE AUTHORITY (II
ADDITIONAL DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED
  31.08.2016 IN R.C.P.NO.138 OF 2014 OF THE RENT CONTROL
            COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE
REVISION PETITIONER:

            BASHEER
            AGED 58 YEARS, S/O. USMAN,
            PALLIKKAL SHOPING COMPLEX, NEAR KODUVALLY BUS
            STAND, KODUVALLY P.O., KODUVALLY AMSOM DESOM,
            KOZHIKODE DISTRICT.
            BY ADVS.
            SRI.P.R.SREEJITH
            SMT.MAYA CHANDRAN
            SRI.M.PROMODH KUMAR
            SRI.K.B.SAJEESH

RESPONDENT:

            P.ASHRAF KOYA THANGAL
            AGED 49 YEARS, S/O. LATE ATTA KOYA THANGAL,
            PULLUNNI CHALIL HOUSE, PADANILAM P.O.,
            MADAVUR AMSOM DESOM, KOZHIKODE DISTRICT,
            NOW RESIDING AT ISHQRASOOL MANZIL, ARIBRA P.O.,
            MORAYOOR VILLAGE, KONDOTTY TALUK,
            KOZHIKODE DISTRICT - 673 649.
                               4
R.C.Rev.Nos.74 & 75 of 2018



            BY ADVS.
            SRI.P.K.BABU
            SMT.T.V.NEEMA



      THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 07.07.2022, ALONG WITH R.C.Rev.NO.74/2018, THE
COURT ON 01.08.2022 DELIVERED THE FOLLOWING:
                                       5
R.C.Rev.Nos.74 & 75 of 2018



                                ORDER

Ajithkumar, J.

The tenants are the revision petitioners. The respondent-

landlord filed R.C.P.Nos.128 and 138 of 2014 before the Rent

Control Court (Principal Munsiff-I), Kozhikode, seeking

eviction of the petitioners under Sections 11(2)(b) and 11(3)

of the Kerala Buildings (Lease and Rent Control) Act, 1965.

The Rent Control Petitions were dismissed by the Rent Control

Court as per common order dated 31.08.2016. R.C.A.Nos.265

and 266 of 2016 were preferred by the respondent under

Section 18(1)(b) of the Act before the Rent Control Appellate

Authority (Additional District Judge-II), Kozhikode. The

appeals were allowed in part ordering eviction of the

petitioners from the respective petition schedule shop rooms

under Section 11(3) of the Act. Aggrieved by the said

judgment, the petitioners have preferred these revision

petitions under Section 20 of the Act.

2. The revision petitions were admitted to file.

Execution of the orders of eviction was stayed initially for a

R.C.Rev.Nos.74 & 75 of 2018

period of one month. The order of stay was extended from

time to time and is still in force.

3. The petition schedule shop room involved in

R.C.P.No.128 of 2014 is on the ground floor and the petition

schedule shop room involved in R.C.P.No.138 of 2014 is on

the first floor of the building. The respondent seeks eviction of

the petitioners from the respective shop rooms on the ground

of bona fide need for his own occupation. He wants to start a

textile shop in the ground-floor room and a tailing unit in the

first-floor room.

4. That claim was resisted by the petitioners raising

several contentions. That, the respondent filed R.C.P.Nos.72

and 73 of 2009 seeking eviction of the petitioners from the

respective tenanted premises on the ground of arrears of rent

and bona fide need. Those R.C.Ps. and the appeals thereon

were dismissed. They filed revision petitions in that matter

and withdrew later. Hence, the present petitions are barred

under Section 15 of the Act. Bona fides of the need urged by

the respondent was disputed on many grounds. The benefit of

R.C.Rev.Nos.74 & 75 of 2018

the first and second provisos to Section 11(3) of the Act was

also claimed by the petitioners.

5. At the trial, the respondent was examined as PW1.

The petitioners were examined as RWs.1 and 2. Two

Commissioners in these cases were examined as CWs.1 and 2.

Exts.A1 to A13, B1, C1, C1(a), C2 and C2(a) were marked.

Evidence was considered in detail by the Rent Control Court. The

need urged by the respondent was not accepted as bona fide by

the Rent Control Court. It was also found that the petitioners

were entitled to the benefit of the second proviso to Section

11(3) of the Act. Accordingly, the Rent Control Court dismissed

the petitions. Before the Appellate Authority, the correctness and

legality of the findings of the Rent Control Court were seriously

contested. After re-appreciation of the evidence, the Appellate

Authority accepted the case of the respondent with respect to the

plea for eviction on the ground of bona fide need, and

resultantly, the Appellate Authority directed the petitioners to

surrender vacant possession of the respective petition schedule

shop rooms within 15 days from the date of the judgment.

R.C.Rev.Nos.74 & 75 of 2018

6. It is contended that R.C.P.Nos.128 and 138 of 2014

are barred by the provisions of Section 15 of the Act, for the

reason that the respondent abandoned earlier Rent Control

Petitions filed by him seeking eviction on the ground of bona

fide need. R.C.P.Nos.72 and 73 of 2009 were filed by the

respondent seeking eviction of the petitioners on the ground

of arrears of rent and bona fide need. Those petitions were

dismissed and the appeals were also dismissed. The

respondent filed R.C.Rs. before this Court in the matter. When

the matter came up for hearing before this Court, the

respondent sought permission to withdraw the cases reserving

his right to initiate fresh proceedings for eviction. The learned

counsel appearing for the respondent submits that the need

then urged was that the respondent wanted to start an Unani

treatment centre. But on realising that he was not competent

to render Unani treatment, he abandoned that idea. It was for

that reason he withdrew from the earlier rent control

petitions. The learned counsel would submit that firstly, the

respondent obtained leave to initiate fresh eviction

R.C.Rev.Nos.74 & 75 of 2018

proceedings against the petitioners and secondly, that there

was no decision in the R.C.Ps. on merits, so as to attract the

mischief of Section 15 of the Act.

7. As per the provisions of Section 15, the Rent

Control Court is bound to reject a petition for eviction

summarily if there was an earlier petition between the same

parties and the claim in such petition was substantially the

same. The further condition for getting the provisions of

Section 15 attracted is that the issues in the previous

proceedings have been finally decided. In Janakiamma and

Others v. Bhaskaran Nambiar [2014 (4) KLT 931], this

Court held that what is referred to in Section 15 of the Act is

only on re-agitating issues. One of the differences between

Section 11 of the Code of Civil Procedure, 1908, and Section

15 of the Act is, the former refers to "matter directly and

substantially in issue" and in the latter, the word "matter" is

conspicuously absent, and it denotes only "facts in issue". This

is obvious because grounds of eviction in the Rent Control Act

are based on personal action relatable to the landlord or

R.C.Rev.Nos.74 & 75 of 2018

tenant, which by very nature is recurring. The expression

"substantially" used in Section 15 of the Act would necessarily

indicate that the issue must have been decided on merits in

the former proceedings.

8. In the light of the proposition of law obtained from

the above decisions, there cannot be a bar under the

provisions of Section 15 of the Act in these cases. Earlier,

R.C.Ps. were not decided on merits. Further, the respondent

withdrew those petitions reserving his right to initiate fresh

eviction proceedings. Therefore, the Appellate Authority

rightly had repelled the said contention. Hence, we find no

reason to interfere with the same.

9. The learned counsel appearing for the petitioners

contended that the room scheduled in R.C.P.No.138 of 2014 is

lying integrated with another room, which belongs to a

different landlord, and therefore, no eviction can be ordered.

If the petitioners are to be evicted, the tenancy has to be split

up, which is impermissible under the provisions of law. It is

seen from the Commissioner's report that the said rooms

R.C.Rev.Nos.74 & 75 of 2018

have been made a common hall by removing the party wall.

But it is a fact that the petitioner occupies the rooms under

different tenancy arrangements. It may be true that both

rooms were united by removing the dividing hall. That does

not mean that the premises demised by the respondent to the

petitioner lost its identity. In fact, there is no union of two

tenancies notwithstanding the integration of areas of such

tenancies. Therefore, it cannot be said that there would be

splitting up of tenancy in case of ordering eviction of the

petitioner from the shop rooms involved in R.C.P.No.138 of

2014.

10. In Mar Appraem Kuri Co.Ltd. v. Dix [2004 (1)

KLT 678], this Court considered the situation when the

splitting up of tenancy and consequent bar from seeking

eviction will be attracted. This Court held that,-

"On purchasing the tenanted premises the unity and integrity of the estate could be split up and the assignee landlord could seek eviction on the available grounds under Section 11 of the Act. The assignee, however, has to show that the assigned portion is in a state of being identified and partial eviction is possible on facts. There

R.C.Rev.Nos.74 & 75 of 2018

is no need for the consent of the tenant for severance of the reversion and the assignment of the part so severed. Further, there is no need for a consensual attornment since the attornment is brought about by operation of law. Therefore the question of limitation on the right of the landlord against splitting up of the integrity of the tenant, inhering in the inhibitions of his own contract does not visit the assignee of the part of the reversion. If the assignee landlord could make out a case for eviction under Section 11 of the Act, the fact that the tenant had not consented to the attornment or that it would disrupt the unity and integrity of the tenancy which he had with the original landlord is of no avail or consequence."

The aforesaid view fortifies that the petitioner cannot resist

the plea for eviction on the ground of splitting up of the

tenancy.

11. The learned counsel appearing for the petitioners

would contend that the evidence of PW1 itself reveals that he

has put forth the need of starting a textile shop and a tailoring

unit in the petition schedule shop rooms without any bona

fides. In the earlier rent control petitions, he maintained that

he wanted to start an Unani treatment centre in the same

R.C.Rev.Nos.74 & 75 of 2018

premises. He dropped that idea and he came forward with a

new proposal of starting a textile shop and a tailoring unit. He

deposed before the court that when he returned from Gulf

itself, he had the idea of starting a textile shop. He further

emphasised that he had such an idea for the last eight years,

but he did not give any reasons for initiating the proceedings

after such a long lapse of time. When considering the said

nature of his testimony, in the view of the learned counsel,

the need he urged cannot be said to be genuine or honest.

12. Section 11 of the Act deals with the 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

R.C.Rev.Nos.74 & 75 of 2018

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.

13. 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

R.C.Rev.Nos.74 & 75 of 2018

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.

14. 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

R.C.Rev.Nos.74 & 75 of 2018

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.

15. PW1 deposed that he has two daughters and it is

necessary for him to start a business of his own to augment

his income. He deposed in court that the idea of starting a

textile business originated eight years before, but only

subsequently he thought of initiating the proceedings for

R.C.Rev.Nos.74 & 75 of 2018

eviction on the basis of such a need. It may be noted that in

order to start a business, one has to have not only a building

but also all other resources, including sufficient funds. When

PW1 deposed before the court that despite having an idea to

start such a business for long, he could practicalised it only

later, it cannot be said that he has any oblique motive behind

it. There was no bar for him to initiate eviction proceedings at

any time. But it is for him to make all other arrangements,

and therefore, only on account of the delay, his bona fides,

cannot be doubted. Applying the principles laid down in the

aforesaid decisions, the need urged by PW1 can only be said

to be honest and genuine. The Appellate Authority rightly had

held so and we do not find any reason to interfere with the

same.

16. It was contended that the respondent had other

rooms also in his possession in which he can conveniently

start such a business. But the petitioners did not specifically

plead as to the availability of any particular room in the

possession of the respondent. Only if it is pleaded and proved

R.C.Rev.Nos.74 & 75 of 2018

that the landlord is in possession of vacant premises, he is

cast with the obligation of explaining special reasons for not

occupying such rooms. Here, the petitioners did make only a

vague contention that the respondent has vacant rooms in his

possession. Such a plea is not enough to attract the first

proviso to Section 11(3) of the Act. Needless to say, evidence

is totally lacking on this aspect, and therefore, the said plea of

the petitioners can only be rejected.

17. 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 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

R.C.Rev.Nos.74 & 75 of 2018

similar to that of the tenanted premises in terms of the rate of

rent and convenience.

18. This view regarding the burden of proof has been

approved by the Apex Court in Kunhamma @ Lakshmi

Ammas Children and another v. Akkali Purushothaman

and others [(2007) 11 SCC 181], where it was observed,

"From a perusal of the judgment of the Full Bench of the Kerala High Court reported in Francis v. Sreedevi Varassiar [2003 (2) KLT 230] we observe that the onus lies on the tenant to prove that he was dependent on the income derived from the business being carried on from the demised premises and that there was no other suitable building to which he could shift his business."

19. The petitioner in R.C.Rev.No.74 of 2018 is

conducting a furniture shop in the petition schedule premises.

He as RW1 deposed that his only income to depend upon for

his livelihood is from the said business. The petitioner in

R.C.Rev.No.75 of 2018 is conducting a textile business. He

also claimed that his sole source of livelihood is the income

from that business. He, as RW2, deposed for substantiating

that contention. The Appellate Authority pointed out the

R.C.Rev.Nos.74 & 75 of 2018

shabby nature of the evidence tendered by RWs.1 and 2. RW1

feigned ignorance when put to him that his son was

conducting another business, which in fact is his own. His

version was that he did not know what his son was doing.

Similarly, from the oral testimony of RW2, it has come out

that he has another business. He has tried to explain away

that allegation by stating that the business is in the name of

his wife. Their oral testimonies are not enough to inspire

confidence for entering a finding that they can depend on the

income from the respective business alone for their livelihood.

No document or independent evidence was brought in to

render corroboration to their oral testimonies. In the

circumstances, we are constrained to hold that the petitioners

have failed to prove the first limb of the second proviso to

Section 11(3) of the Act.

20. PW1 has pointed out the availability of certain

rooms in the locality for availing on rent. The Commissioners

were appointed in these cases, but they were not asked to

ascertain about the non-availability of any room in the locality.

R.C.Rev.Nos.74 & 75 of 2018

Thus, the evidence in this respect is also scanty. Therefore,

we hold that the petitioners failed to discharge their burden as

far as the second proviso to Section 11(3) of the Act is

concerned.

21. In short, the findings of the Appellate Authority

resulting in ordering eviction of the petitioners under Section

11(3) of the Act are not liable to be interfered with on the

ground of illegality, irregularity or impropriety by this Court

invoking its jurisdiction under Section 20 of the Act.

Therefore, these petitions are liable only to be dismissed.

Hence, the revision petitions are dismissed.

22. At the time of pronouncement of this order, the

learned counsel for the petitioners has made a request to

afford six month's time for vacating the premises pointing out

the difficulty in finding out other rooms and making necessary

arrangements for shifting their 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 rooms, subject to the

R.C.Rev.Nos.74 & 75 of 2018

following conditions:

(i) The respondents-tenants in the Rent Control Petitions 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 shop rooms to the petitioner-landlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities;

(ii) The respondents-tenants in the Rent Control Petitions 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 respondents-tenants in the Rent Control Petitions failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of

R.C.Rev.Nos.74 & 75 of 2018

the petition schedule shop rooms 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