Kerala High Court
S.A.Sahitha vs Nazeera on 1 June, 2022
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 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
R.C.REV.NO.434 OF 2017
AGAINST THE JUDGMENT DATED 13.10.2017 IN R.C.A.NO.6 OF 2016
OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE),
KASARAGOD AND THE ORDER DATED 23.03.2016 IN R.C.P.NO.15 OF
2012 OF THE RENT CONTROL COURT (MUNSIFF), HOSDURG
REVISION PETITIONER:
S.A.SAHITHA
AGED 45 YEARS, D/O K.S.ABDULLAKUNHI,
PROPRIETOR, A.K. BROTHERS, OPP. LIC OFFICE,
KANHANGAD, HOSDURG TALUK, KASARAGOD DISTRICT.
BY ADVS.
SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
RESPONDENTS:
1 NAZEERA
AGED 53 YEARS, W/O LATE K.M. SALI HAJI,
BEKAL KUNNEL, PALLIKKARE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN:671316.
2 FAIZAL K.M.
AGED 36 YEARS, S/O LATE K.M. SALI HAJI,
BEKAL KUNNEL, PALLIKKARE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN:671316.
3 ABDUL NAZAR K.M.
AGED 29 YEARS, S/O LATE K.M. SALI HAJI,
BEKAL KUNNEL, PALLIKKARE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN:671316.
4 MUHAMMED SHAFEEQUE K.M
AGED 26 YEARS, S/O LATE K.M. SALI HAJI,
BEKAL KUNNEL, PALLIKKARE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN:671316.
2
R.C.Rev.No.434 of 2017
5 RABIYA K.M.
AGED 26 YEARS, D/O LATE K.M. SALI HAJI,
BEKAL KUNNEL, PALLIKKARE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN:671316.
6 FAREEDA K.M.
AGED 34 YEARS, D/O LATE K.M. SALI HAJI,
BEKAL KUNNEL, PALLIKKARE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN:671316.
7 MOHAMEDALI K.M.
AGED 31 YEARS, S/O LATE K.M. SALI HAJI,
BEKAL KUNNEL, PALLIKKARE VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, PIN:671316.
BY ADV SRI.KODOTH SREEDHARAN
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 19.05.2022, THE COURT ON 01.06.2022 DELIVERED THE
FOLLOWING:
3
R.C.Rev.No.434 of 2017
ORDER
Ajithkumar, J.
Sri.K.M.Sali Haji was the owner of the petition schedule
shop room. He filed R.C.P.No.15 of 2012 before the Rent Control
Court (Munsiff), Hosdurg, seeking eviction of the petitioner who is
the tenant thereon under Section 11(2)(b) and 11(3) of the Kerala
Buildings (Lease and Rent Control) Act, 1965. The Rent Control
Court dismissed the R.C.P. During pendency of the R.C.P., Sri.Sali
Haji died and therefore his legal representatives, respondents 1 to
7 herein came on record. In the appeal preferred by the
respondents, R.C.A.No.6 of 2016, under Section 18(1)(b) of the
Act, the Rent Control Appellate Authority (District Judge),
Kasaragod, set aside the order in the R.C.P. Eviction was ordered
under Section 11(3) of the Act. This Revision has been filed under
Section 20 of the Act challenging the said judgment, which is dated
13.10.2017.
2. On 03.01.2018, this Revision was admitted and notice
was ordered to the respondents. Further proceedings for evicting
the revision petitioner from the petition schedule shop room was
stayed for a period of two months. The order was extended from
time to time and is still in force.
R.C.Rev.No.434 of 2017
3. Heard the learned counsel appearing for the petitioner
and the learned counsel appearing for the respondents.
4. Eviction under Section 11(3) of the Act was sought by
Sri.Sali Haji, the landlord, on the ground that he along with his son,
Mohammed Shafeeque, wanted to start a business in electrical
goods and appliances in the petition schedule shop room. After the
death of Sri.Sali Haji, the R.C.P. was amended adding paragraph
No.5(a), where it was reiterated that Sri.Mohammed Shafeeque,
the 4th respondent herein, remained jobless and he wanted to start
the above-said business. The petitioner filed a counter statement
and also an additional counter statement where she refuted the
claim of the respondents. It was contended that the need urged by
the respondents was not bona fide and that several vacant rooms
were in their possession in which the 4 th respondent can well start a
business if at all he wanted to start a business. A plea based on the
second proviso to Section 11(3) of the Act was also advanced, but
it was submitted before the Appellate Authority that the petitioner
was not pursuing the said contention.
5. During trial, PW1, PW2 and RW1 were examined before
the Rent Control Court. Exts.A1 to A11, B1 and C1 were admitted in
evidence. The Rent Control Court after analysing the evidence on
R.C.Rev.No.434 of 2017
record held that room Nos.III/1366 and III/1367, which are
situated next adjoining to the petition schedule shop room were got
vacated by the respondents during pendency of the R.C.P. or
immediately prior to that and that the respondents did not
satisfactorily explain the reasons for not occupying the said rooms
for the projected need, and therefore, the need urged by them was
not bona fide. The reasons stated by the respondents for non-
occupying the said rooms were not accepted by the Rent Control
Court as sufficient to avoid invocation of the first proviso to Section
11(3) of the Act also. Resultantly, the claim for eviction was
declined.
6. Before the Appellate Authority the contention of the
respondents was that both the said rooms were utilised by the
respondents for other purposes and that contention was accepted.
The Appellate Authority took a definite view that falling of the said
rooms vacant was not proved to be before filing of R.C.P.No.15 of
2012 and obtaining of the said rooms by the respondents being a
subsequent event, the same should not have been taken into
account by the Rent Control Court as a reason to decline the
eviction. The Rent Control Court observed that the respondents
despite getting vacant possession of such rooms failed to state
R.C.Rev.No.434 of 2017
anything in the R.C.P. and therefore their bona fides became
doubtful and the said observation was also found by the Appellate
Authority misplaced for the reason that there was no evidence to
show that the said rooms got vacated before filing of the R.C.P.
7. The learned Counsel appearing for the petitioner would
submit that room No.III/1366 was the subject matter of
R.C.P.No.20 of 2009, a copy of the said petition is Ext.B1, and the
purpose for seeking eviction in that R.C.P. being the need of
Sri.Mohammed Shafeeque, non-occupation of the said room by him
tells upon the bona fides of the need. Further, it is contended that
room No.III/1367, which also is adjacent to the petition schedule
shop room, got vacated and the explanation for not occupying that
also is not satisfactory.
8. Answer of the learned counsel appearing for the
respondents in the above regard is that in room No.III/1366 Sri.Sali
Haji had started a business and after his death the 2 nd petitioner
has been continuing that business. From the evidence on record, it
is not seen that the said room was surrendered by the tenant
before institution of this R.C.P., and therefore, the Rent Control
Court should not have found fault with the respondents for not
mentioning about that room in the Rent control Petition. The other
R.C.Rev.No.434 of 2017
room was vacated for a different purpose and the same is in
occupation of the 2nd petitioner, PW1, and therefore, the same also
cannot be a reason to doubt the bona fides of the need.
9. While examining, PW1 admitted in court that after filing
R.C.P.No.20 of 2009, the tenant in room No.1366 surrendered
vacant possession. Getting possession of room No.1367 has also
been admitted by PW1. He gave evidence for and on behalf of all
the respondents. When he admits that two rooms next adjoining to
the petition schedule shop room were obtained vacant prior to or
after the filing of this Rent Control Petition, there certainly arises a
question whether that would affect the bona fides of the
respondents in claiming eviction of the petitioner on the ground of
bona fide need. While the Rent Control Court held that the
explanation given by the respondents in that regard was not
satisfactory. The view taken by the Appellate Authority to dispel the
said finding is that after filing of the R.C.P. only such events
occurred, and therefore, the same should not have been taken into
account by the Rent Control Court.
10. From the evidence available on record it is not able to
say when exactly had the respondents obtained vacant possession
of room Nos.1366 and 1367. But it is beyond dispute that they
R.C.Rev.No.434 of 2017
obtained possession of the said rooms during pendency of the
R.C.P. The fact that the tenant in room No.1366 vacated was added
in the petition itself by way of amendment. The Appellate Authority
has taken a definite view that such subsequent events could not be
considered. This Court in Gireeshbabu T.P. v. Jameela and
others [2021 (5) KHC SN 30] after referring to the decisions of
the Apex Court in Ramesh Kumar v. Kesho Ram [AIR 1992 SC
700], Kedar Nath Agrawal v. Dhanraji Devi [(2004) 8 SCC
76] and Maganlal Kishanlal Godha v. Nanasaheb Uddhaorao
Gadewar [(2008) 13 SCC 758] and also a few other decisions on
the point held that subsequent events that have a bearing on the
relief claimed by a party can be taken into consideration. It was
also observed that the subsequent events which have fundamental
impact on the rights claimed by the rival parties have to be taken
into account while adjudicating the claim for eviction on the ground
of bona fide need. In such cases, the normal rule that the state of
affairs as on the date of institution of the litigation alone are
relevant is not invariable. In view of the said legal principle, the
view taken by the Appellate Authority that the Rent Control Court
should not have considered the impact of getting vacant possession
of two rooms after the filing of the R.C.P., is not correct.
R.C.Rev.No.434 of 2017
11. Ext.B1, eviction petition was filed by Shri.Sali Haji in
2009. The need urged in that petition for claiming eviction is
extracted below:
"(c) The petitioners having five sons and two daughters. Out
of which K.M.Muhammadali and K.M.Shafeeq are
unemployed and they have no idea of going outside for
employment. Instead they have expressed desire to start a
Readymade Garments shop at the petition 'A' schedule
building which is situated near the bus stand at Kottachery.
On thorough study it is revealed that there is sufficient scope
for Readymade Garments shop at Kottachery which can be
run profitably. The petitioners have the ability to start the
proposed business with the assistance of Bank. The
petitioners have no other suitable room in their possession in
the locality for conduct of the said business. Whereas there
are other rooms available in the same town to shift the
business of the respondents. Hence the petitioners are
entitled to get the petition schedule room vacated on the
ground of bona fide need. Moreover, the respondents have
got other business at Kannur and Kasaragod and they are
not depending upon the income derived from the business
being conducted in the 'A' schedule room. Hence the
respondents are liable to be evicted under Section 11(3) of
Act 2 of 1965."
12. After getting vacant possession of that room, paragraph
No.5(a) was added in the R.C.P. in this case to the effect that
Sri.Sali Haji started a business in that room under the name and
R.C.Rev.No.434 of 2017
style "Second Skin". PW1 deposed in court that that business was
stopped and later he started another business. The petitioner got a
contention that the said room was let out to one Suresh and that
was why photos of Hindu Gods and lit lamps in front were seen by
the Commissioner in that shop. PW1 admitted that at the time of
visit of the Commissioner photos and lighted lamps were there, but
he asserted that Suresh was not in occupation, but he was only an
employee under him. Whether the shop "Second Skin" was
conducted initially by Sri.Sali Haji and after his death by PW1, has
no much bearing; whereas, the fact relevant is only whether or not
the respondents occupied the said room for the proposed purpose,
i.e., to start a ready-made garments by Sri.K.M. Muhamedali and
Muhammed Shafeeque. The admitted case of the respondents is
that the said room was never put on use for such a purpose.
13. Room No.1367 admittedly was obtained vacant by the
respondents and the explanation for the respondents with regard to
that room is that it was required for PW1's mother, the 1 st
respondent herein, to conduct a Parda shop. Of course, regarding
room No.1367, the landlords never projected a need, as in this
case, that it was required for Sri.K.M.Shafeeque to start a business.
So, getting that room vacant may not be a sufficient reason to
R.C.Rev.No.434 of 2017
doubt their bona fides.
14. 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 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.
R.C.Rev.No.434 of 2017
15. 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 need
so as to convince the court that it is not a mere fanciful or whimsical
desire.
16. In Ammu v. Nafeesa [2015 (5) KHC 718] a Division
Bench of this Court held that, it is a settled proposition of law that
R.C.Rev.No.434 of 2017
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.
17. In this case, eviction was sought initially for using the
petition schedule shop room to start a business in electric goods
and appliances by Sali Haji along with his son Mohammed
Shafeeque. By way of amendment, the need was changed to the
effect that the room was required for Sri.Mohammed Shafeeque,
who is the 4th respondent herein and examined in the case as PW2.
R.C.Rev.No.434 of 2017
18. What emerges from the above is that room No.III/1366,
eviction of which was demanded by filing R.C.P.No.20 of 2009 was
vacated during pendency of R.C.P.No.15 of 2012. Although, the
need stated in R.C.P.No.20 of 2009 was Sri.K.M.Muhamedali and
Sri.K.M.Mohammed Shafeeque wanted to start a ready-made shop
in room No.1366, they never started such a business; instead
Sri.Sali Haji started a business named "Second Skin". Of course,
even if Sri.Mohammed Shafeeque along with Muhamedali wanted to
start a ready-made garment business, that was not a bar for
Sri.Mohammed Shafeeque (PW2) to start one more business in
electrical goods and appliances in the petition schedule shop room.
But when the tenant in room No.1366 was evicted, no matter, it
was a voluntary or involuntary surrender, after filing of R.C.P.No.20
of 2009, and putting that room for a different purpose, claiming
eviction of the petitioner from the petition schedule shop room for
the purpose of PW2 himself cannot be said to be bona fide.
Therefore, the finding of the Appellate Authority that obtaining of
vacant possession of two rooms by the respondents during
pendency of this proceedings does not have any bearing and also
the further finding that the need urged by respondents 1 to 7 is a
bona fide one, do not sustain either on facts or in law. The said
R.C.Rev.No.434 of 2017
findings are against the evidence on record. The need urged is
sincere or honest. Therefore, we hold that eviction of the petitioner
ordered by the Appellate Authority on the ground of bonafide need
is liable to be set aside.
19. 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.
20. In Vasantha Mallan v. N.S. Aboobacker Siddique
[2020 (1) KHC 21] the question that arose before a Division
Bench of this Court was whether a landlord is bound to plead under
first proviso to Section 11(3) of the Act, the availability of vacant
building in his possession and seek to explain special reason for
non-occupation of such premises, in a proceeding initiated for
eviction of the tenant under Section 11(3) of the Act. The Division
Bench held that the initial burden to prove that landlord is in
possession of vacant building, if any, is only upon the tenant unless
the landlord himself admits any such vacant building to be in his
possession. Only when the primary burden of proof in this behalf is
R.C.Rev.No.434 of 2017
discharged by the tenant, the burden shifts to the landlord to show
otherwise or that the vacant premises are not suited to his needs.
He can successfully discharge his part of the burden by adducing
evidence either through his own testimony or others or in any other
legal manner. Law does not require the landlord to plead that he is
in possession of any vacant building and has special reasons for its
non-occupation. It is up to the tenant alone to take up the
contention and prove that landlord is in vacant possession of
premises.
21. In Vasantha Mallan, relying on the law laid down by
the Apex Court in M.L. Prabhakar [(2001) 2 SCC 355] the
Division Bench held that, it is not incumbent on the landlord to
disclose in his pleading availability of vacant building in his
possession. The non-disclosure of vacant premises cannot be picked
up as a reason or circumstance to doubt the bona fides of the claim
of the landlord put forward under Section 11(3) of the Act. The
Division Bench made it clear that it is not obligatory for the landlord
to disclose in his pleadings the details of the vacant buildings
available in his possession. Nor does first proviso to Section 11(3)
of the Act insist the landlord to plead that the buildings available in
his possession are not sufficient to meet his requirements. These
R.C.Rev.No.434 of 2017
are matters of evidence rather than pleadings. Failure of the
landlord to disclose availability of buildings in his possession and
plead special reasons for not occupying them, cannot be taken as a
valid and legal ground for rejecting the claim of the landlord as not
bona fide. What could at the most be said is that it might be a fair
and reasonable conduct if the landlord disclosed in his pleadings the
details of buildings in his possession and simultaneously explained
the reason for non-occupation of the premises for his alleged
needs.
22. The reasons stated above for finding the need urged by
the respondents not bona fide are applicable while considering the
case of the petitioner in the context of the first proviso to Section
11(3) of the Act as well. The allegation that the respondents let out
room No.1366 during pendency of this proceedings to one Suresh is
not supported by sufficient evidence. The fact which is proved is
that vacant possession of two rooms were obtained by respondents
1 to 7. Explanation offered by them for not using either of the said
rooms for the need projected in this case is not explained
satisfactorily. Therefore, the bar created by the first proviso also
disentitles the respondents from getting an order of eviction in
respect of the petition schedule room.
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23. Accordingly, we allow this Rent Control Revision. The
judgment of the Appellate Authority (District Judge), Kasaragod,
dated 13.10.2017 in R.C.A.No.6 of 2016 is set aside. Consequently,
R.C.P.No.15 of 2012 of the Rent Control Court (Munsiff), Hosdurg,
stands dismissed. No costs.
Sd/-
ANIL K.NARENDRAN
JUDGE
Sd/-
P.G. AJITHKUMAR
JUDGE
dkr
