Kerala High Court
Devayani vs Nusaiba Beevi on 16 March, 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 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
R.C.REV.NO.51 OF 2022
AGAINST THE JUDGMENT DATED 07.01.2022 IN R.C.A.NO.20 OF
2018 OF THE RENT COURT APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-VI), KOLLAM AND THE ORDER DATED 22.05.2018
IN R.C.(OP) NO.1 OF 2022 OF THE RENT CONTROL COURT
(MUNSIFF), PUNALUR
REVISION PETITIONER:
1 DEVAYANI,
AGED 80 YEARS, W/O. MADHAVAN NAIR,
MADHAVA VILAS VEEDU, KARAVALOOR VILLAGE,
PATHANAPARUAM TALUK - 691 333,
FROM THEKKAVILA VEEDU, EDAKKADU, THOLICODE,
PUNALUR VILLAGE AND MURI, PATHANAPURAM TALUK.
2 ASOK KUMAR,
AGED 55 YEARS, S/O. MADHAVAN NAIR,
MADHAVA VILAS VEEDU, KARAVALOOR VILLAGE,
PATHANAPARUAM TALUK - 691 333,
FROM THEKKAVILA VEEDU, EDAKKADU, THOLICODE,
PUNALUR VILLAGE AND MURI, PATHANAPURAM TALUK.
3 SASIDHARAN,
AGED 60 YEARS, S/O. MADHAVAN NAIR,
SYAM NIVAS, KOTTAMKARA, MEKON, CHANDANATHOPPU
P.O., KOLLAM TALUK - 691 014, FROM THEKKAVILA
VEEDU, EDAKKADU, THOLICODU, PUNALUR VILLAGE.
4 SHEEJA,
AGED 50 YEARS, D/O. MADHAVAN NAIR,
MADHAVA VILAS VEEDU, MATHRA MURI,
KARAVALOOR VILLAGE, PATHANAPARUAM TALUK - 691
333, FROM EDAKKADU, THEKKAVILA VEEDU, THOLICODE,
PUNALUR VILLAGE, PATHANAPURAM TALUK.
2
R.C.Rev.No.51 of 2022
5 PRASAD,
AGED 52 YEARS, S/O. MADHAVAN NAIR,
MADHAVA VILAS VEEDU, MATHRA MURI,
KARAVALOOR VILLAGE, PATHANAPARUAM TALUK-691333,
FROM EDAKKADU THEKKAVILA VEEDU, THOLICODE,
PUNALUR VILLAGE, PATHANAPURAM TALUK.
6 PRADEEP,
AGED 48 YEARS, S/O. MADHAVAN NAIR,
MADHAVA VILAS VEEDU, MATHRA MURI,
KARAVALOOR VILLAGE, PATHANAPARUAM TALUK-691333,
FROM EDAKKADU THEKKAVILA VEEDU, THOLICODE,
PUNALUR VILLAGE, PATHANAPURAM TALUK.
7 SREELEKHA,
AGED 46 YEARS, D/O. MADHAVAN NAIR,
MADHAVA VILAS VEEDU, MATHRA MURI,
KARAVALOOR VILLAGE, PATHANAPARUAM TALUK-691333,
FROM EDAKKADU THEKKAVILA VEEDU, THOLICODE,
PUNALUR VILLAGE, PATHANAPURAM TALUK.
BY ADVS.
AJAYA KUMAR. G
M.JAYAKRISHNAN
RESPONDENT:
NUSAIBA BEEVI
AGED 72 YEARS, D/O. SHAUBANATHU ASHIYANA,
FROM VELLIMOOTTIL VEEDU, PUNALUR MURI AND
VILLAGE, PATHANAPURAM TALUK - 695 305.
BY ADV V.PREMCHAND (CAVEATOR)
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
R.C.Rev.No.51 of 2022
ORDER
Ajithkumar, J.
R.C.(OP) No.1 of 2012 was filed by the respondent
before the Rent Control Court (Munsiff), Punalur, seeking
eviction of the petitioners-tenants from the petition schedule
shop room under Section 11(2)(b) and 11(3) of the Kerala
Buildings (Lease and Rent Control) Act, 1965. Eviction was
ordered by the Rent Control Court. The order was challenged
by the petitioners before the Rent Control Appellate Authority
(Additional District Judge-VI), Kollam by filing R.C.A.No.20 of
2018 under Section 18(1)(b) of the Act. That appeal failed.
Feeling aggrieved thereof, this revision petition under Section
20 of the Act has been filed by the petitioner.
2. Original tenant Sri.Madhavan Nair died. He was
running a barber shop in the petition schedule shop room.
After his death, the 2 nd petitioner continued the shop. The
respondent is a retired Government servant. She wants to
start a business in parda for which she requires the petition
schedule shop room. She is not in possession of any other
R.C.Rev.No.51 of 2022
building or room suitable for the said purpose. Rent mutually
agreed for the petition schedule shop room is Rs.500/- per
month. The petitioners defaulted payment of rent from
01.01.2008 onwards. On the basis of those contentions, the
respondent sought eviction.
3. The petitioners have filed a counter statement. It is
their contention that the respondent does not have any
genuine intention to start such a business. The petitioners 1
and 2 are depending for their livelihood solely on the income
derived from the petition schedule shop room. No other
suitable room or building is available in the locality for shifting
the shop. It is incorrect that the petitioners defaulted payment
of rent purposefully. Since the respondent refused to accept
the rent, there occurred arrears of rent.
4. The Rent Control Court recorded oral evidence of
PWs.1 and 2 and CPWs.1 to 4. Documentary evidence consists
of Exts.A1 to A9, B1 to B5 and C1 series. After evaluating the
evidence on record, the Rent Control Court ordered eviction
on both the grounds. The Appellate Authority concurred with
R.C.Rev.No.51 of 2022
the findings of the Rent Control Court. Such concurrent
findings are challenged by the petitioner in this revision.
5. Today, when the matter came up for admission, we
heard the learned counsel appearing for the petitioners and
the learned counsel appearing for the respondent-caveator in
detail.
6. The learned counsel appearing for the petitioner
would contend that the tenancy commenced in 1984 and after
the death of the original tenant Sri.Madhavan Nair, the 2 nd
petitioner has been conducting the barber shop in the petition
schedule shop room. Considering the nature of the business, an
order of eviction is quite unjust. Regarding the bona fides of the
respondent, it has been submitted that being an aged lady,
having no experience in business, the need projected by the
respondent is not a bona fide one. The shop room being a small
one, there is no convenience for accommodating a parda shop
and in that perspective also, the need cannot be said to be bona
fide. It is also contended that the evidence let in by the
respondent is insufficient to prove the need to be bona fide.
R.C.Rev.No.51 of 2022
7. On the ground of arrears of rent also eviction was
ordered. The learned Counsel for the petitioner would submit
that entire arrears was already deposited during the pendency
of the proceedings. That fact is not controverted by the
opposite side. In the light of the provisions of Section 11(2)(c)
of the Act an order of eviction on the ground of arrears of rent
is only a tentative one and on deposit of the arrears, that
order would not survive any further requiring us to consider
its vires.
8. Both the Courts considered the oral testimony of
PW1, the landlady, in detail. After a thread-bare analysis of
her oral testimony, both the courts found that the need
projected by her was true, honest and genuine. She intends
to start such a business, after her retirement. Her decision
that without spending time sitting idle, to start a business of
her own during her retirement life, cannot be said to be
unwise or irrational. When she owns a shop room and she has
the ability and genuine desire to conduct such a business, the
bona fides of the need urged by her cannot be doubted.
R.C.Rev.No.51 of 2022
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
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
R.C.Rev.No.51 of 2022
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
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
R.C.Rev.No.51 of 2022
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
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
R.C.Rev.No.51 of 2022
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.
12. In view of the above legal principles, it is not
expected that this Court re-appreciates the evidence,
especially when the Appellate Authority, being the first
appellate court, has considered and marshalled the entire
evidence in great detail and confirmed the finding of the Rent
Control Court.
13. In support of the contention that the respondent
has other buildings in her possession for being used for the
projected need, no evidence has come out. The petitioners,
however, adduced evidence to claim benefit of the second
proviso to Section 11(3) of the Act. 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
R.C.Rev.No.51 of 2022
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 similar to that of the tenanted premises in terms of
the rate of rent and convenience.
14. CPW1, the 2nd petitioner, deposed that it was he,
who has been running the barber shop in the petition
schedule shop room now. He deposed that his only income to
eke out his livelihood is from the barber shop in the petition
schedule shop room. Of course, no other evidence with
respect to that aspect has come on record. Ordinary rule that
documents reflecting income being derived by the tenant
should be produced in order to prove that that income is the
sole source of his livelihood, is not applicable to this case. It
has come out in evidence that the 2 nd petitioner is conducting
R.C.Rev.No.51 of 2022
a barber shop in the petition schedule shop room and it is his
full-time employment. It is not expected to maintain
statements of accounts or such other documents in a barber
shop, being run by an individual. His oral testimony alone is
the possible evidence with respect to the income from his
business. We are of the view that his testimony is trustworthy
and it can be found that he is depending for his livelihood
solely on the income from the barber shop in the petition
schedule shop.
15. The Commissioner, CPW3, reported vide Ext.C1(b)
regarding the vacant buildings available in the locality. There
is assertion from the part of the respondent also that there
are vacant rooms available in that area for being taken on
rent. But the petitioners did not adduce any reliable evidence
to show that no vacant rooms are available, which can be put
to use by the 2nd petitioner. Therefore, the second limb of the
second proviso to Section 11(3) of the Act is not proved by
the petitioner. The view taken by the courts below in this
respect cannot be said to be illegal, irregular or perverse.
R.C.Rev.No.51 of 2022
16. 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 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.
R.C.Rev.No.51 of 2022
17. 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 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.
18. 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
R.C.Rev.No.51 of 2022
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.
19. 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
Court, on the ground of illegality, irregularity or impropriety.
Hence this Revision Petition fails. We, accordingly, dismiss it.
20. The learned counsel for the petitioners has made a
request to afford one year time for vacating the premises
pointing out the difficulty in finding out another room and
making necessary arrangements for shifting his barber shop.
The learned counsel for the respondent is agreeable to grant
six months' time.
21. Having considered all the aspects, we deem it
appropriate to grant seven months' time to surrender vacant
possession of the petition schedule shop room, subject to the
R.C.Rev.No.51 of 2022
following conditions:
(i) The respondents-tenants 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 they will
surrender vacant possession of the petition schedule
shop room to the petitioner-landlady within seven
months from the date of this order and that, they shall
not induct third parties into possession of the petition
schedule shop room and further they 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 respondents-tenants 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 respondents-tenants
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
R.C.Rev.No.51 of 2022
the petition schedule shop room will stand cancelled
automatically and the petitioner-landlady will be at liberty
to proceed with the execution of the order of eviction.
(iv)
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
