Abdul Azeez K.C vs Vannankandi Khalid Haji
2022 Latest Caselaw 2807 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 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                     R.C.REV.NO.178 OF 2020
  AGAINST THE JUDGMENT DATED 13.03.2020 IN R.C.A.NO.164 OF
  2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
        DISTRICT JUDGE-I), THALASSERY AND THE ORDER DATED
29.09.2014 IN R.C.P.NO.84 OF 2013 OF THE RENT CONTROL COURT
                      (MUNSIFF), THALASSERY
REVISION PETITIONER:

            ABDUL AZEEZ K.C.,
            AGED 59 YEARS, S/O. AYAMAD HAJI,
            RESIDING AT TAJ HOUSE, P.O. MOWANCHERY,
            KANNUR DISTRICT.
            BY ADVS.
            M.V.AMARESAN
            SRI.S.S.ARAVIND

RESPONDENTS:

    1       VANNANKANDI KHALID HAJI
            AGED 75 YEARS, S/O. IBRAHIMKUTTY HAJI,
            RESIDING AT SAREENA MANZIL, P.O. IRIVERY,
            THALASSERY TALUK, KANNUR DISTRICT, PIN-670 613
            (DECEASED)
   2*       ASIYA KHALID
            AGED 63 YEARS, W/O.VANNANKANDI KHALID HAJI,
            RESIDING AT SAREENA MANZIL, KELOTHUMCHAL,
            P.O.IRIVERY, KANNUR DISTRICT, PIN - 670 614.
   3*       SAREENA
            AGED 46 YEARS, D/O.VANNANKANDI KHALID HAJI,
            RESIDING AT SAREENA MANZIL, KELOTHUMCHAL,
            P.O.IRIVERY, KANNUR DISTRICT, PIN - 670 614.
                              2
R.C.Rev.No. 178 of 2020


    4*     THASLIM THANISSERY KANDY
           S/O.VANNANKANDI KHALID HAJI,
           RESIDING AT SAREENA MANZIL, KELOTHUMCHAL,
           P.O.IRIVERY, KANNUR DISTRICT, PIN - 670 614.
    5*     FAIZAL
           S/O.VANNANKANDI KHALID HAJI,
           RESIDING AT SAREENA MANZIL, KELOTHUMCHAL,
           P.O.IRIVERY, KANNUR DISTRICT, PIN-670 614.
    6*     HARIS
           S/O.VANNANKANDI KHALID HAJI,
           RESIDING AT SAREENA MANZIL, KELOTHUMCHAL,
           P.O.IRIVERY, KANNUR DISTRICT, PIN-670 614.
    7*     ARIFA
           D/O.VANNANKANDI KHALID HAJI,
           RESIDING AT SAREENA MANZIL, KELOTHUMCHAL,
           P.O.IRIVERY, KANNUR DISTRICT, PIN-670 614.


           *ADDITIONAL R2 TO R7 ARE IMPLEADED AS LEGAL
           HEIRS OF DECEASED RESPONDENT AS PER ORDER DATED
           07.10.2021 IN I.A.1/2021 IN RCR 178/2020
           BY ADVS.
           RUKHIYABI MOHD KUNHI
           T.K.SREEKALA



      THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 03.03.2022, THE COURT ON 16.03.2022 DELIVERED
THE FOLLOWING:
                                 3
R.C.Rev.No. 178 of 2020


                            ORDER

Ajithkumar, J.

The tenant is the petitioner. In the rent control petition

filed by the respondent-landlord eviction was ordered under

Section 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings

(Lease and Rent Control) Act, 1965 by the Rent Control Court

(Munsiff), Thalassery. The petitioner preferred an appeal as

R.C.A.No.164 of 2014 under Section 18(1)(b) of the Act

before the Rent Control Appellate Authority(Additional District

Judge-I), Thalassery. It was dismissed. Feeling aggrieved

thereof, the petitioner preferred this revision under Section 20

of the Act.

2. Original respondent died during pendency of this

revision petition and his legal representatives are impleaded

as additional respondents 2 to 7. Rent since January, 2013, at

the rate of Rs.2,500/- per month was allegedly kept in arrears

by the petitioner. The landlord claimed that his daughter Smt.

Sareena, who is a dependent on him, wants to start a

business in ladies wear and for that purpose, he requires the

R.C.Rev.No. 178 of 2020

petition schedule shop room. Two rooms were the premises

let out to the petitioner. He demolished the separating wall,

making both rooms into one, thereby causing material

alteration to the tenanted premises, affecting its value and

utility materially and permanently. On the said three grounds,

eviction was sought.

3. The petitioner filed an objection, where he

contended as follows:

Allegation that rent for such a period was kept in arrears

is untrue. Only because the landlord refused to receive the

rent, there occurred some arrears. Smt.Sareena is a married

lady who settled at Bangalore along with her husband and

children. It is totally untrue that she has a need to start a

business in the petition schedule shop room. The need urged

is only a ruse for eviction. It is incorrect that the petitioner

removed the separating wall. It was removed by the landlord

himself. The petitioner is depending for his livelihood on the

sole income derived from his footwear business in the petition

schedule shop room. No other suitable building is available in

R.C.Rev.No. 178 of 2020

the locality to avail on rent.

4. PW1, Smt.V.Sareena and RW1, the petitioner were

examined. Exts.A1 to A5, B1 to B4, C1 and C2 were marked.

After appreciating the said evidence in the light of the rival

contentions, eviction was ordered by the Rent Control Court.

The Appellate Authority concurred with the decision of the

Rent Control Court. While this revision petition has been

pending, the petitioner paid the arrears of rent, on

17.12.2021. The submission of the learned counsel for the

petitioner in that regard is recorded by this Court. In view of

such deposit, the ground for eviction under Section 11(2)(b)

of the Act does not survive.

5. On 13.10.2020, notice was ordered to the

respondent. It was however reported that the respondent died

in January, 2021 and thereafter additional respondents 2 to 7

were impleaded.

6. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent Nos 2 to 7.

R.C.Rev.No. 178 of 2020

7. The only question to be considered is whether any

interference is called for to the order of eviction of the Rent

Control Court under Section 11(3) and 11(4)(ii) of the Act,

which stands confirmed by the Appellate Authority?

8. The order of eviction under both grounds, namely,

bonafide need and usage of the building in such a manner so

as to reduce its value and utility materially and permanently,

is strongly assailed by the petitioner. The learned counsel

appearing for the petitioner would contend that the findings of

both the courts below are illegal and improper. Vacant

possession of the shop room is sought for being used it by

PW1 for her own occupation, saying that she is a dependent

of the landlord. When it is contended that PW1 is a dependent

and the landlord wanted to provide the room for her

occupation, it was absolutely necessary for the landlord to

come before court and depose about those facts. Since he

shied away from deposing before the court, the inevitable

inference is that the need urged is not bonafide. It was further

contended that PW1 having been permanently settled at

R.C.Rev.No. 178 of 2020

Bangalore along with her husband and children, it is quite

unlikely and illogical that she wanted to start a ladies wear

shop at Thalassery. In that view of the matter also, need

urged by the respondent is strongly assailed by the petitioner.

9. It is a fact that the wall in existence separating the

two rooms scheduled in the petition was removed at some

point of time. Rooms bearing door Nos.8/47 and 48 are the

demised premises. In Ext.A5, rent deed, the tenanted

premises is described as two rooms. The learned counsel

appearing for the petitioner would contend that the said

description was given following the descriptions in the earlier

documents including title deed, but the fact is that the wall

was removed by the petitioner prior to the entrustment of the

premises with the petitioner. Thus it is contended that the

allegation of removing the wall and thereby caused damage to

the tenanted premises by the petitioner is totally incorrect.

10. 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

R.C.Rev.No. 178 of 2020

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. 178 of 2020

11. 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

R.C.Rev.No. 178 of 2020

convince the court that it is not a mere fanciful or whimsical

desire.

12. 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

R.C.Rev.No. 178 of 2020

Section 11(3) of the Act, of course, subject to the first and

second provisos to Section 11(3) of the Act.

13. PW1 deposed that she is now residing at

Thalassery and there is enough time for her to conduct a

business. The question whether she has prior experience in

such a business, does not have relevance now, since the

settled position is that experience is not a condition precedent

for a person claiming eviction on the ground that he wants the

building to start a business. She has a husband and children.

When she asserts that it is her definite decision to start such a

business and it is proven that she has capacity and ability to

start such a business, there is no reason to say that the same

is merely a wish or a fanciful idea. Both the courts below

considered the evidence in detail to enter a finding that the

need urged by the respondent is bonafide. Upon considering

the evidence in the light of the aforementioned decisions, we

find no reason to interfere with the concurrent finding of the

Courts below.

14. The learned counsel appearing for the petitioner

R.C.Rev.No. 178 of 2020

canvassed for a position that non-examination of the landlord

comes in the way of finding the need urged by him bonafide.

In this regard, the learned counsel placed reliance on the

decisions in Gopal Krishnaji Ketkar v. Mohamed Haji Latif

and others [AIR 1968 SC 1413] and Vidhyadhar v.

Manikrao and another [(1999) 3 SCC 573].

15. The principles laid down in the said decisions is that

where a party to the suit does not appear in the witness box

and state his own case on oath and does not offer himself to

be cross-examined by the other side, a presumption would

arise that the case set up by him is not correct. A similar

presumption is possible if a document on which a party

desires to rely upon to prove a certain state of facts, but he

withholds the same from being produced in court. But, when

evidence with regard to the disputed fact is adduced and the

evidence proves that fact, the presumption necessarily has to

give way to the proof.

16. In Koyilerian Janaki and others v. Rent

Controller (Munsiff), Cannanore and others [(2000) 9

R.C.Rev.No. 178 of 2020

SCC 406], the Apex Court held that in order to succeed a

claim under Section 11(3) of the Act, three facts to be proved.

It was held that,

"where eviction of a tenant is sought by a landlord for occupation of any member of his family, the landlord is required to plead and substantiate three ingredients. Firstly, a person for whose need the premises is required is a member of the landlord's family. Secondly, such member of the family is dependent on the landlord and thirdly, there is a bona fide need."

17. The question is not who is examined in court, but

whether or not those facts are proved by the evidence let in

by or on behalf of the landlord. The requirement or not of

examination of the landlord in a proceedings under Section

11(3) of the Act was considered by this Court in a series of

decisions. In Sivadasa Panicker N. v. Travancore Mats

and Mattings Co. and others [2009 (1) KLT 393], this

Court held that it is not necessary that the landlord himself

should mount the box and testify. It is sufficient that evidence

regarding the required aspects are brought on record before

the court by the landlords through anybody else who is

R.C.Rev.No. 178 of 2020

competent to give evidence on behalf of the landlords and

through the report of a commissioner deputed for local

inspection. In other words while the bona fides of a need for

own occupation under Section 11(3) is best established by the

oral evidence to be given by the needy person and by the

circumstances attending on the case.

18. It is the settled law that dependency in the context

of Section 11(3) of the Act is not financial dependency, but

the need of the relative to look upon the landlord for an

accommodation for the desired purpose. Being a daughter, it

cannot be said that PW1, who does not have a building of her

own, which can be used for the projected purpose, is not a

dependent of the landlord. A subsequent event has assumed

importance in the matter. The respondent-landlord died. His

legal representatives are impleaded as additional respondents

2 to 7. PW1 is the 3rd respondent herein. She has thus

become a co-owner of the petition schedule shop room. With

all co-owners in the party array, the 3rd respondent, one of

the co-owners, is claiming eviction. The death of the landlord

R.C.Rev.No. 178 of 2020

is a subsequent event. But in the circumstances of the case,

that fact has utmost relevance. In the light of that fact, the

pleas regarding dependency and failure of examination of the

landlord as a witness in the case faded away. Now, after the

death of the landlord, PW1 being one of the co-owners, claims

eviction for the shop room being used for her own occupation.

Taking all such matters into account, we hold that there is

absolutely no reason to interfere with the finding of the

Appellate Authority that the need urged by the respondent is

bonafide.

19. The learned counsel appearing for the petitioner

further would point out that the Rent Control Court, in

paragraph No.13 of its order, observed that the need was of the

husband of the landlord to start a business, which indicates that

the Rent Control Court did not apply its mind while considering

the case of the respondent, and therefore, the order of eviction

is illegal. The learned counsel appearing for the respondent

pointed out that the said recital was considered by the Appellate

Authority as pointed out by the respondent-landlord. It was held

R.C.Rev.No. 178 of 2020

by the Appellate Authority that the same was only a

typographical error and has no consequence in the decision

arrived at by the Rent Control Court.

20. Having read, those mistakes cannot be termed as a

mere typographical error. Going by the provisions of

subsections (3) and (4) of Section 18 of the Act, the powers

of the Appellate Authority is co-extensive to that of the Rent

Control Court. The Appellate Authority had re-appreciated the

evidence in detail. Having had due regard to the pleadings of

both parties, and re-appreciation of evidence, the Appellate

Authority had entered into the finding that the need urged by

the respondent is bonafide. No doubt, the aforesaid mistake in

the order of the Rent Control Court makes that order at least

irregular. But, when that order merged with the judgment of

the Appellate Authority, we find no reason to upset the long

drawn proceeding for that sole reason. We only observe that

such a mistake, on no account, should have occurred in the

order. We, accordingly, hold that the findings of the Appellate

Authority in regard to the bonafides of the need urged by the

R.C.Rev.No. 178 of 2020

respondent cannot have any interference.

21. The petitioner has no serious contention with

reference to the first and second proviso to Section 11(3) of

the Act. The authorities below, after considering the evidence

on record, held that the petitioner is not entitled to protection

from eviction under the provisos and we find no illegality,

irregularity or impropriety to the said finding.

22. RW1 deposed in terms of his contention in the

counter statement that the separating wall was removed by

the landlord himself prior to letting out the building to him.

The circumstances emerging from the evidence on record and

possible inferences are not in conformity to the said version.

Ext.A5 contains the recital that two separate rooms were let

out to the petitioner. If the wall was removed by the landlord,

there was no reason or rhyme to state so in Ext.A5. The

Advocate Commissioner vide Ext.C1 reported regarding the

nature of the structure. Separate rolling shutters were there

for both the rooms. There is an upper floor in the building.

The removal of the separating wall of the rooms in the ground

R.C.Rev.No. 178 of 2020

floor, ordinarily shall not be attempted to, when there is an

upper floor. When the landlord says that the wall was removed

subsequent to creation of the tenancy and he has alarm about

the utility and even stability of the building on account of such

removal, it is not able to simply infer that it was he himself

had removed the wall. Of course, the landlord did not come to

depose such facts in the court. When removal of wall is an

admitted fact and other evidence and circumstances are

enough to deduce the irresistible inference that it was done

after creation of the tenancy as per Ext.A5, the failure of the

landlord to depose before the court does not have much

relevance.

23. In Mohammed Hajee P.V. v. Mundoli

Muhammed Hajee [2011 (1) KHC 562] this Court held

that "the demolition of the wall separating the two rooms

would reduce the value and utility of the petition schedule

building. Probably, making two rooms into one may increase

the utility of the tenant. But the utility of the landlord cannot

be ignored. Landlord had designed and built the rooms by

R.C.Rev.No. 178 of 2020

spending money and materials to suit his needs and utility.

Tenant has no right to demolish the wall in between the rooms

and to say that thereby the value and utility are increased."

24. The respondent has substantiated that the wall was

removed by the petitioner. In the light of the aforesaid legal

principles, it can only be said that by such removal of the wall,

value and utility of the building has been reduced materially

and permanently. Therefore, the petitioner is liable to be

evicted under the provisions of Section 11(4)(ii) of the Act.

25. 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

R.C.Rev.No. 178 of 2020

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.

26. 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

R.C.Rev.No. 178 of 2020

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.

27. 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.

28. Viewed in the light of the aforesaid decisions, we

find no reason to interfere with the findings in the judgment

of the Appellate Authority which confirmed the order of the

R.C.Rev.No. 178 of 2020

Rent Control Court directing eviction of the petitioner under

Sections 11(3) and 11(4)(ii), on the ground of illegality,

irregularity or impropriety by invoking jurisdiction of this

Court under section 20 of the Act. Hence this Revision Petition

fails. We, accordingly, dismiss it.

29. At the time of pronouncement of this Order, the

learned counsel for the petitioner has made a request to

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

the difficulty in finding out another room and making

necessary arrangements for shifting his business. The learned

counsel for the respondent is agreeable to grant six months'

time.

30. 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

R.C.Rev.No. 178 of 2020

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-landlord 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

R.C.Rev.No. 178 of 2020

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-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