Hajirmalayil Ammad vs Janaki Pk
2022 Latest Caselaw 9002 Ker

            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 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                   R.C.REV.NO. 134 OF 2022
AGAINST THE JUDGMENT DATED 08.02.2022 IN R.C.A.NO.72 OF 2020
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT
     JUDGE), VATAKARA AND THE ORDER DATED 29.02.2020 IN
  R.C.P.NO.47 OF 2018 OF THE RENT CONTROL COURT (MUNSIFF),
                           VATAKARA
REVISION PETITIONER:

            HAJIRMALAYIL AMMAD,
            AGED 76 YEARS, S/O ABDULLA, KULANGARAKANDI HOUSE,
            PALAYAD NADA, PUTHUPANAM PO, VATAKARA TALUK,
            KOZHIIKODE DT., PIN - 673105.
            BY ADV ZUBAIR PULIKKOOL

RESPONDENTS:

    1       JANAKI P.K.,
            AGED 72 YEARS, W/O LATE KARAKETEENDAVIA NANU,
            SWASTHAM, RESIDIDNG AT PADINHARE KANHAVALAPPIL
            HOUSE,
            P.O. PUTHUPPANAM, NADAKKUTHAZHE VILLIAGE,
            VATAKARA TALUK, KOZHIIKODE, PIN - 673105.
    2       DEEPA P.K.,
            AGED 46 YEARS, W/O SATHYAN, SWASTHAM
            CHALIL HOUSE, P.O. MUCHUKUNNU, MOODADI VILLAGE,
            KOZHIIKODE DT., PIN - 673307.

     THIS     RENT   CONTROL   REVISION   HAVING   COME   UP   FOR
ADMISSION ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                2
R.C.Rev.No.134 of 2022


                           ORDER

Ajithkumar, J.

The petitioner is the tenant. The respondents-landladies

filed R.C.P.No.47 of 2008 before the Rent Control Court

(Munsiff), Vatakara seeking eviction of the petitioner under

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

Act, 1965. As per order dated 29.02.2020, the Rent Control

Court ordered eviction. The petitioner filed an appeal under

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

Authority (Additional District Judge), Vatakara. The appeal

was dismissed. The petitioner therefore filed this revision

under Section 20 of the Act.

2. When this matter came up for admission today, we

heard the learned counsel appearing for the petitioner.

3. The respondents sought eviction of the petitioner

from the petition schedule shop room on the ground of bona

fide need for own occupation stating that the 2 nd respondent

wants to start a tailoring shop cum outlet for sale of churidar

materials.

R.C.Rev.No.134 of 2022

4. The tenant filed a counter statement contending

that the need urged by the respondent was not bona fide.

There was no need or necessity for the 2 nd respondent to

conduct a tailoring shop or a business. The petitioner has

been depending for his livelihood on the income derived from

the business of dried coconut kernel in the petition schedule

shop room. There is no other suitable room or building

available in the locality to shift that business.

5. Evidence in the case comprises oral testimonies of

PWs.1 to 3, RW1, Exts.A1 to A4, B1 to B5 and X1.

6. The learned counsel appearing for the petitioners

would contend that the finding of the courts below that the

need urged by the respondent was honest and bona fide, is

not on the basis of any reliable evidence. Also, it is contended

that the second proviso to Section 11(3) of the Act should

have been found in favour of the petitioners. The legal

contention raised by the petitioner is that since rent was fixed

as Rs. 825/- in 2016 by mutual consent, he is entitled for

immunity from eviction for a period of five years in the light of

R.C.Rev.No.134 of 2022

the decision in Mohammad Ahmad and another v. Atma

Ram Chauhan and others [(2011) 7 SCC 755].

7. The protection from eviction entitled by a tenant as

per the decision of the Apex Court in Mohammad Ahmad

(supra) is for a period of five years from the date of fixation of

the fair rent by mutual consent. PWs.2 and 3 are the tenants

in the neighbouring shop rooms. They stated that they are

paying rent at the rate of Rs.8,000/- and Rs.7,000/-

respectively. RW1, the petitioner, admitted that the rooms in

occupation of RWs.2 and 3 are similar to the petition schedule

shop room. In view of that matter, it cannot be said that the

monthly rent of Rs. 825/- being paid by the petitioner is fair

or prevailing market rent. Hence, the petitioners cannot be

heard to contend that he is entitled to the benefit of the

decision in Mohammad Ahmad.

8. The bona fides of the need urged by the

respondent was assailed by the petitioners contending that he

has no necessity to start a tailoring shop, especially when it is

seen from Ext.A3 that the 2nd respondent is already a member

R.C.Rev.No.134 of 2022

of Kerala Tailoring Workers' Welfare Fund Board. The 2 nd

respondent deposed in court as PW1 that she remained

jobless and wanted to start a tailoring shop along with

business in churidar materials. The fact that she is a member

Kerala Tailoring Workers' Welfare Fund Board, which is an

undisputed fact, would substantiate that she put forth the

need with bona fides. She has enough experience and

therefore, she can successfully conduct such a business.

9. 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

R.C.Rev.No.134 of 2022

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.

10. 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

R.C.Rev.No.134 of 2022

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.

11. 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

R.C.Rev.No.134 of 2022

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 to 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.

12. In view of the principle of law laid down by the

Apex Court as well as this Court in the decisions referred to

above, evidence let in by the respondents well justifies that

the need was urged by them with utmost honesty and

sincerity. There is absolutely no reason to interfere with the

findings of the courts below in that regard.

R.C.Rev.No.134 of 2022

13. The petitioner raised a contention that the

respondents have several other rooms in their possession, and

therefore, the first proviso to Section 11(3) of the Act stands in

the way of their claiming eviction. The contention of the

respondents, per contra, is that they do not have any room of

their own. There is absolutely no evidence to show that the

respondents own any room. In such circumstances, the first

proviso to Section 11(3) of the Act does not attract in this case.

14. The petitioner also claims the benefit of the second

proviso to Section 11(3) of the Act. In order to succeed in that

claim, the petitioner ought to prove satisfactorily both the

limbs of the second proviso. The evidence available on record

with regard to the income being derived by the petitioner

from the business in the petition schedule shop room is that

of the oral testimony of RW1 alone. His evidence, unsupported

by any document or independent evidence, is totally

insufficient to show that the petitioner has no other sources of

income and also that they can depend only on the income

from the business in the petition schedule premises.

R.C.Rev.No.134 of 2022

15. Coming to the second limb of the second proviso to

Section 11(3) of the Act, there is no much evidence. RW1

stated that no vacant building or room is available in the

locality for availing on rent. His evidence would not show that

after having necessary enquiry regarding the non-availability

of other buildings, he has deposed that fact in the court. In

the said circumstances, his evidence was rightly rejected by

the courts below. Hence we desist from interfering with the

finding of the courts below that the petitioner is not entitled to

the benefit of the second proviso to Section 11(3) of the Act.

16. Accordingly, we find that this revision does not

have merit and the same is liable only to be dismissed. Hence,

the revision is dismissed.

17. The learned counsel for the petitioner has made a

request to afford six months' time for vacating the premises

pointing out the difficulty in finding out another room and

making necessary arrangements for shifting his business.

18. Having considered all the aspects, we deem it

appropriate to grant six months' time to surrender vacant

R.C.Rev.No.134 of 2022

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-landlady 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 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 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

R.C.Rev.No.134 of 2022

this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioners-landlady 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