Thazhe Illath Suresh Babu vs Puthiyottil Jayaprakash
2022 Latest Caselaw 5302 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
             THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
      FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
                      R.C.REV.NO. 72 OF 2022
AGAINST THE JUDGMENT DATED 20.02.2021 IN R.C.A.NO.118 OF 2019
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT
        JUDGE), VATAKARA AND THE ORDER DATED 19.07.2019 IN
     R.C.P.NO.28 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF),
                              NADAPURAM
REVISION PETITIONER:

             THAZHE ILLATH SURESH BABU
             AGED 51 YEARS, S/O.KRISHNAN,
             RESIDING AT 'THAZHE ILLATH', THUNERI AMSOM, DESOM,
             VATAKARA TALUK, KOZHIKODE DISTRICT - 673 505.
             BY ADVS.
             SREEDEVI KYLASANATH
             ACHUTH KYLAS
             JOSELAL GEORGE
             R.MAHESH MENON
             DEAGO JOHN K
             AMAL DEV C.V.
             P.PPRANIL


RESPONDENT:

             PUTHIYOTTIL JAYAPRAKASH
             AGED 47 YEARS, S/O.BALAN,
             RESIDING AT PUTHIYOTTIL, THUNERI AMSOM, DESOM,
             VATAKARA TALUK, KOZHIKODE DISTRICT - 673 505.



       THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON    20.05.2022,   THE   COURT    ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                      2

R.C.Rev.No.72 of 2022



                               ORDER

Ajithkumar, J.

The respondent in R.C.P.No.28 of 2017 of the Rent Control

Court (Munsiff), Nadapuram, is the revision petitioner. The

respondent herein is the landlord. He filed the said R.C.P. and also

R.C.P.No.29 of 2017 seeking eviction under Section 11(3) of the

Kerala Buildings (Lease and Rent Control) Act, 1965 of the

respective tenants. The petitions were allowed. The petitioner filed

R.C.A.No.118 of 2019 and the tenant in R.C.P.No.29 of 2017 filed

R.C.A.No.117 of 2019 before the Rent Control Appellate Authority

(Additional District Judge), Vatakara under Section 18(1)(b) of the

Act. The Appellate Authority dismissed both the appeals. This

petition under Section 20 of the Act is filed assailing the order of

eviction of the Rent Control Court, which stands confirmed by the

judgment dated 20.02.2021 of the Appellate Authority.

2. When this matter came up for admission, we have heard

the learned counsel appearing for the petitioner in detail.

3. The respondent-landlord owns three adjoining rooms. He

is employed abroad. He plans to come home and start a stationery

business, making use of the said three rooms, taking into account

the uncertainty of his employment due to the present economic

R.C.Rev.No.72 of 2022

crisis and nationalisation by the Government there. In order for

that purpose, he seeks eviction of the tenants in two of the rooms,

the petitioner herein and the respondent in the connected matter,

R.C.P.No.29 of 2017, having the third room available vacant with

him.

4. The Rent Control Petition was resisted by the respondent

contending that the petitioner is a very rich man having no need or

necessity to start a stationery business and if at all, he requires to

start the said business, the other rooms are fairly sufficient for the

purpose. The petitioner further contended that his only source of

livelihood is the income derived from the business in the petition

schedule shop room and no other vacant room is available in the

locality to shift his business.

5. The Rent Control Court during trial of the cases recorded

oral testimonies of PW1 and RW1. Exts.A1 and B1 to B8 were

received in evidence. After considering the said evidence in detail,

the Rent Control Court came to the conclusion that the need urged

by the respondent is bona fide and the reasons put forward by the

respondent for non-occupying the vacant room available with him

was sufficient and acceptable. The claim of the petitioner based on

the second proviso to Section 11(3) of the Act was declined holding

R.C.Rev.No.72 of 2022

that the evidence was insufficient to prove that the petitioner has

been depending for his livelihood solely on the income derived from

the business in the petition schedule shop room and also that no

other vacant building is available to shift his business.

6. The above said findings were seriously assailed by the

petitioner before the Appellate Authority. It is seen that the entire

evidence was re-appreciated by the Appellate Authority before

concurring with the aforesaid findings of the Rent Control Court.

Resultantly, the Appellate Authority dismissed the appeal.

7. The learned counsel appearing for the petitioner would

submit that the respondent being employed abroad and an affluent

person, there is no likelihood of his coming home and starting a

petty trade like stationary business. Another contention highlighted

is that, if the need urged is a genuine one, he would have started

the business in the room already available with him, vacant. It is

further contended that the courts below did not properly consider

the evidence in regard to the said aspects and therefore, the

finding regarding the bona fide is liable to be reversed.

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,

R.C.Rev.No.72 of 2022

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.

9. 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

R.C.Rev.No.72 of 2022

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.

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

R.C.Rev.No.72 of 2022

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.

11. It is true that the respondent did not produce any

independent evidence in order to substantiate his plea that he bona

fide in need of the petition schedule shop room to start a stationery

business. The respondent himself deposed as PW1 before the court

in detail regarding his idea to start the stationary business. It is his

definite version that not only the petition schedule room but other

two rooms also are required to accommodate the stationary

business, which he plans to start. The petitioner admittedly is

employed abroad. He deposed that as a result of the uncertainty of

his employment due to the present economic crisis and

R.C.Rev.No.72 of 2022

nationalisation by the Government there he was bound to come

back. The economic crisis gripping the world over is a matter of

common knowledge. Not only the respondent, the petitioner also

might be a victim of it. But when the respondent asserts that he

has been compelled to come back and therefore he wants to start a

business of his own in the shop rooms which he owns, it cannot be

said the same is not a genuine or honest one. The fact that the

respondent is rich is not a reason to say that his plan to start a

business of his own is illogical or malafide. We are of the view that

findings rendered by the courts below that the need urged by the

respondent is bona fide is not liable to be interfered with, in the

light of the evidence adverted to above.

12. In order to get the benefit of the first proviso to Section

11(3) of the Act, the petitioner banked upon the fact that one

adjoining room is available vacant with the respondent. We found

above that the need urged by the respondent that he wants to start

the stationary shop making use of three rooms, one of which is the

said vacant room. Therefore the said contention of the petitioner

cannot be accepted.

13. As per the second proviso to Section 11(3) of the Act,

the Rent Control Court shall not give any direction to a tenant to

R.C.Rev.No.72 of 2022

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. 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. Although the petitioner claimed the benefit of second

proviso to Section 11(3) of the Act the evidence let in by him to

establish that claim is scanty. The oral assertions of RW1 without

any supporting material, cannot be acted upon to hold that the only

income he derives is from the business in the petition schedule

shop room. No independent material regarding the volume,

quantum, turnover, etc. of his business has not been produced. It

was in such circumstances, the courts below concurrently found

that the income from the business in the petition schedule shop

room was not the sole income for his livelihood. Regarding non-

availability of vacant buildings in the locality also no reliable

R.C.Rev.No.72 of 2022

evidence has been produced. As referred to above, it is the

absolute burden of the tenant to establish that no such room is

available. Mere oral testimony of the tenant ordinarly is not enough

to prove that fact. Especially when it is seen from the evidence on

record that several rooms are lying vacant in the locality, the

explanation offered by RW1 regarding the vacant buildings pointed

out as available is not at all satisfactory. In the said circumstances,

only possible finding is that the petitioner failed to prove the

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

concurrent finding of the courts below on this respect also is devoid

of any perceivable defect.

15. Section 20 of the Kerala Buildings (Lease and Rent

Control) Act deals with revision. As per sub-section (1) of Section

20, in cases, where the appellate authority empowered under

Section 18 is a Subordinate Judge, the District Court, and in other

cases the High Court, may, at any time, on the application of any

aggrieved party, call for and examine the records relating to any

order passed or proceedings taken under this Act by such authority

for the purpose of satisfying itself as to the legality, regularity or

propriety of such order or proceedings, and may pass such order in

reference thereto as it thinks fit. As per sub-section (2) of Section

R.C.Rev.No.72 of 2022

20 of the Act, the costs of and incident to all proceedings before the

High Court or District Court under sub-section (1) shall be at its

discretion.

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.72 of 2022

17. In T. Sivasubramaniam v. Kasinath Pujari [(1999)

7 SCC 275] the Apex Court held that, the words 'to satisfy itself'

employed in Section 25 of the Tamil Nadu Buildings (Lease and

Rent Control) Act, 1960 no doubt is a power of superintendence,

and the High Court is not required to interfere with the finding of

fact merely because the High Court is not in agreement with the

findings of the courts below. It is also true that the power

exercisable by the High Court under Section 25 of the Act is not an

appellate power to reappraise or reassess the evidence for coming

to a different finding contrary to the finding recorded by the courts

below. But where a finding arrived at by the courts below is based

on no evidence, the High Court would be justified in interfering with

such a finding recorded by the courts below.

18. In Ubaiba v. Damodaran [(1999) 5 SCC 645] the

Apex Court considered the exercise of revisional power by the High

Court, under Section 20 of the Kerala Buildings (Lease and Rent

Control) Act, 1965, in the context of an issue as to whether the

relationship of landlord-tenant existed or not. It was urged that

whether such relationship existed would be a jurisdictional fact.

Relying on the decision in Rukmini Amma Saradamma it was

contended that, however wide the jurisdiction of the revisional

R.C.Rev.No.72 of 2022

court under Section 20 of the Act may be, it cannot have

jurisdiction to re-appreciate the evidence and substitute its own

finding upsetting the finding arrived at by the appellate authority.

The Apex Court held that, though the revisional power under

Section 20 of the Act may be wider than Section 115 of the Code of

Civil Procedure, 1908 it cannot be equated even with the second

appellate power conferred on the civil court under the Code.

Therefore, notwithstanding the use of the expression 'propriety' in

Section 20 of the Act, the revisional court will not be entitled to re-

appreciate the evidence and substitute its own conclusion in place

of the conclusion of the appellate authority. On examining the

impugned judgment of the High Court, in the light of the aforesaid

ratio, the Apex Court held that the High Court exceeded its

jurisdiction by re-appreciating the evidence and in coming to the

conclusion that the relationship of landlord-tenant did not exist.

19. 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

R.C.Rev.No.72 of 2022

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.

20. In Thankamony Amma v. Omana Amma [AIR 2019

SC 3803 : 2019 (4) KHC 412] considering the matter in the

backdrop of law laid down in Rukmini Amma Saradamma,

Ubaiba and Dilbahar Singh the Apex Court held that the findings

rendered by the courts below were well supported by evidence on

record and could not even be said to be perverse in any way. The

High Court could not have re-appreciated the evidence and the

concurrent findings rendered by the courts below ought not to have

been interfered with by the High Court while exercising revisional

jurisdiction.

21. 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

R.C.Rev.No.72 of 2022

ground of illegality, irregularity or impropriety. Hence this Revision

Petition fails. We, accordingly, dismiss it.

22. The learned counsel for the petitioner has made a

request to afford six month's time for vacating the premises

pointing out the difficulty in finding out another room and making

necessary arrangements for shifting his business.

23. 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 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 building only on the strength of a valid

licence/permission/consent issued by the local authority/

statutory authorities;

R.C.Rev.No.72 of 2022

(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 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