K.N.Narayanan vs Khadeeja
2022 Latest Caselaw 7888 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 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
                    R.C.REV.NO. 1 OF 2019
AGAINST THE JUDGMENT DATED 17.09.2018 IN R.C.A.NO.17 OF 2017
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT
   JUDGE-II), KALPETTA AND THE ORDER DATED 24.10.2017 IN
  R.C.P.NO.5 OF 2010 OF THE RENT CONTROL COURT (MUNSIFF),
                          KALPETTA

REVISION PETITIONER:

         K.N.NARAYANAN,
         AGED 68 YEARS, S/O.NARAYANA SWAMI,
         KANTHALLOOR MADAM,
         VELLINAZHI AMSOM DESOM,
         PALAKKAD DISTRICT, NOW BUSINESS,
         KAVITHA EMBORIUM, GOODALAI,
         KALPETTA POST,
         KALPETTA AMSOM DESOM,
         VYTHIRI TALUK,
         WAYANAD DISTRICT.
         BY ADVS.
         SRINATH GIRISH
         V.NAMITHA

RESPONDENTS:

    1    KHADEEJA,
         AGED 66 YEARS, D/O.KUNJAMMAD,
         KANDILERI HOUSE, GOODLAIKUNNU,
         KALPETTA AMSOM DESOM,
         WAYANAD DISTRICT- 673121.
                            2
R.C.Rev.No.1 of 2019


    2    SUMMAYYA,
         AGED 42 YEARS, W/O.SHARAFUDHEEN, VEMAM,
         MANANTHAVADY POST, MANANTHAVADY TALUK,
         NOW RESIDING AT KANDALERI HOUSE, GOODALAI,
         KALPETTA POST, KALPETTA VILLAGE- 673121.
         BY ADV SMT.JAYASREE K.P.


     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 29.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                        3
R.C.Rev.No.1 of 2019


                               ORDER

Ajithkumar, J.

The respondent-tenant in R.C.P.No.5 of 2010 on the files

of the Rent Control Court (Munsiff), Kalpetta, is the petitioner.

He filed this revision under Section 20 of the Kerala Buildings

(Lease and Rent Control) Act, 1965, aggrieved by the order in

R.C.P.No.5 of 2010, which stands confirmed by the judgment

dated 17.09.2018 in R.C.A.No.17 of 2017 of the Rent Control

Appellate Authority (Additional District Judge-II), Kalpetta.

2. On 07.01.2019, this revision was admitted.

Execution of the order in R.C.P.No.5 of 2010 was stayed

initially for a period of three weeks. That order was extended

from time to time and is still in force.

3. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondents.

4. The 1st respondent filed R.C.P.No.5 of 2010 seeking

eviction of the petitioner under Section 11(3) of the Act. The

need urged was that her daughter's husband,

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Sri.Sharafudeen, wanted to start a hardware business in the

petition schedule shop room. The petitioner took up a

contention that the 1st respondent was not the owner of the

shop room, and therefore, the rent control petition was not

maintainable at her instance. The Rent Control Court,

accepting that contention, dismissed the rent control petition.

The 1st respondent filed an appeal under Section 18(1)(b) of

the Act before the Appellate Authority. In the appeal, the 2 nd

respondent got impleaded. The Appellate Authority took the

view that having the amendment related back to the date of

filing of the petition and the need urged has been proved, the

respondents were entitled to get an order of eviction. The

appeal was accordingly allowed. The petitioner took up the

matter in revision and this Court allowing the revision

remanded the matter to the Rent Control Court for fresh

consideration. Accordingly, the Rent Control Court rendered

the order dated 24.10.2017 ordering eviction of the petitioner

on the ground of bona fide need for own occupation. The said

order was challenged in R.C.A.No.17 of 2017. That appeal was

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also dismissed. Challenging that concurrent finding, this

revision was filed by the petitioner under Section 20 of the

Act.

5. Evidence in the case comprises oral testimonies of

PW1, PW2 and RW1. Exts.A1 to A6, B1 to B5 and C1 were

marked.

6. The 2nd respondent is PW2. Her title to the petition

schedule shop room is now beyond dispute. Her husband

Sri.Sharafudeen requires the petition schedule shop room for

starting a hardware business. PW1 is the 1st respondent. Both

PWs.1 and 2 deposed regarding the need. Ext.A5 would show

that in the year 1988, the 1 st respondent assigned title to the

said room in favour of the 2 nd respondent. Their contention

that Sri.Sharafudeen is a dependent for the purpose of getting

a shop room for him to start a business is contested by the

petitioner. It is alleged that Sri.Sharafudeen has several shop

rooms at Mananthavady and he is immensely rich, and

therefore, he need not depend his wife to have a shop room.

But, there is absolutely no evidence to show that

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Sri.Sharafudeen has any building, either at Mananthavady or

at Kalpetta. It may be correct that Sri.Sharafudeen has

enough means and funds. That does not mean he is not

dependent insofar as the requirement of getting a room for

him to start a business. In the absence of any evidence that

he has a building or room of his own, which can be used for

the projected need, he can only be said to be a dependent of

his wife, PW2.

7. Regarding the ability of Sri.Sharafudeen to start

the proposed business, there is not much dispute. Whether he

needs to start such a business or not is a matter within the

realm of the landlords. What the court can look into is

whether such a need was projected with bona fides.

8. 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

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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.

9. In Adil Jamshed Frenchman v. Sardur Dastur

Schools Trust [(2005) 2 SCC 476] the Apex Court

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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.

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10. 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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11. The courts below considered the oral testimony of

PWs.1 and 2 and also the attending circumstances. RW1, the

petitioner, did not point out during examination in court that

Sri.Sharafudeen is engaged in any avocation now. On the

basis of that evidence the Courts below took the view that the

need urged by the respondent is a bona fide one. Applying the

principle of law laid down by the Apex Court and this Court in

the aforesaid decisions, we do not find any infirmity to the

said finding. Therefore, we are not expected to interfere with

the same.

12. The petitioner did not point out any particular

building or room as available vacant with the respondents or

Sri.Sharafudeen. It came out in evidence that the respondents

own two other rooms. But the said rooms are proved to be in

the possession of other tenants. Since the respondent did not

adduce any evidence to show that the respondents are in

possession of any vacant room with them, the provisions of

first proviso to Section 11(3) of the Act cannot be invoked so

as to decline the claim of eviction.

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13. The petitioner is conducting a furniture business in

the petition schedule shop room. He contended that his only

source of income is his business and he is depending solely on

that income for his livelihood. The courts below took the view

that in the absence of any evidence other than the oral

testimony of RW1, the said contention could not be believed.

He claims to have been conducting the furniture business for

years together. But absolutely no document has been

produced regarding the volume of business and the income he

has been deriving or any such other document. In such

circumstances, it is not able to say that his only source of

income is from the petition schedule shop room and he can

depend on that alone for his livelihood.

14. RW1 further deposed that no other alternative

building is available in the city, which is suitable for shifting

his business. The respondents have produced Ext.A4 series,

copies of building tax assessment register, from which it is

seen that so many rooms are available in the nearby locality.

Whether such rooms were vacant and available for the

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petitioner to take on rent is a matter for him to prove. His oral

testimony does not show that he had enquired regarding the

availability of such rooms. That being the nature of evidence,

it is quite impossible to say that the petitioner has

substantiated his plea that no other suitable building or room

for shifting his business is available in the locality. It goes to

show that the courts below rightly had declined the plea of

the petitioner under the second proviso to Section 11(3) of

the Act.

15. 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,

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

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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.

16. 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

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

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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.

17. 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.

18. 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

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Court, on the ground of illegality, irregularity or impropriety.

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

19. The learned counsel for the petitioner has made a

request to afford eight months' time for vacating the premises

pointing out the difficulty in getting another room and making

necessary arrangements for shifting his business. The learned

counsel for the respondent has conceded that a reasonable

time can be afforded by this Court.

20. Having considered all the aspects, we deem it

appropriate to grant six months' time 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 petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule

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shop room and further he shall conduct any business in the petition schedule building 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 this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioners-landlords 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