Binu Varghese vs K.S.Mathew
2024 Latest Caselaw 4409 Ker

Kerala High Court

Binu Varghese vs K.S.Mathew on 6 February, 2024

Author: Anil K. Narendran

Bench: Anil K. Narendran

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

           THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

                                    &

                THE HONOURABLE MR.JUSTICE G. GIRISH

     TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945

                         RCREV. NO.30 OF 2024

 AGAINST THE JUDGMENT DATED 21.11.2023 IN RCA NO.10/2023 OF
             ADDITIONAL DISTRICT COURT-I, MAVELIKKARA
             RCP 3/2018 OF MUNSIFF COURT, MAVELIKKARA
REVISION PETITIONER/APPELLANT/RESPONDENT:

             BINU VARGHESE
             AGED 49 YEARS
             S/O.THOMAS VARGHESE, NOW RESIDING AT MMC/11/86
             KALLADAL HOUSE, BEHIND MIDWAY AIR TRAVELS,
             THAZHAKKARA, MAVELIKKARA FROM CHERUPARAMBIL,
             THAZHAKKARA, MAVELIKARA, ALAPPUZHA DISTRICT,
             PIN - 690102

             BY ADVS.
             R.REJI, M.V.THAMBAN
             THARA THAMBAN
             B.BIPIN
             ARUN BOSE
             JEENA A.V.
             THOMAS THOMAS
RESPONDENT/RESPONDENT/PETITIONER:

             K.S.MATHEW
             AGED 73 YEARS
             S/O.K.M.ZAZHARIAH, KALLADAL HOUSE, THAZHAKKARA,
             MAVELIKARA ALAPPUZHA DISTRICT,, PIN - 690102


       THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON   06.02.2024,   THE   COURT    ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                   2
R.C.(Rev).No. 30 of 2024


                               ORDER

G. Girish, J.

The tenant in R.C.P.No.10 of 2023 of the Rent Control Court,

Mavelikkara who suffered an order of eviction under Section 11(3)

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

'the Act'), has preferred this revision against the judgment dated

21.11.2023 of the Rent Control Appellate Authority (Additional

District Judge-I), Mavelikkara which confirmed the order of the Rent

Control Court in that R.C.P.

2. The respondent, a septuagenarian, wanted to get

possession of his house rented out to the revision petitioner, for his

own occupation as residential house. He approached the Rent

Control Court seeking eviction of the revision petitioner since the

revision petitioner did not care to accede to his repeated demands

including registered notice to handover vacant possession of the

petition schedule building and to make payment of the arrears of

rent. The Rent Control Court did not accept the objections raised by

the revision petitioner, who even denied the rental arrangement,

and accordingly directed the revision petitioner to hand over vacant

possession of the petition schedule building to the respondent on the

ground of bona fide need under Section 11(3) of the Act. Though

the revision petitioner approached the Rent Control Appellate

Authority (Additional District Judge-I), Mavelikkara against the order

of the Rent Control Court, Mavelikkara, he did not succeed in the

appeal. It is thus that the revision petitioner has approached this

Court challenging the concurrent verdicts of the Rent Control Court

and Appellate Authority directing him to hand over the petition

schedule building to the respondent.

3. Heard the learned counsel for the revision petitioner.

4. As already stated above, the respondent-landlord

approached the Rent Control Court to have possession of the house

which he had rented out to the revision petitioner, since he was in

need of that building for his own occupation. According to the

respondent-landlord, he wanted to accommodate his daughter and

son-in-law in the house where he has been residing now, and to shift

his residence to the petition schedule building which was not far

away from his present residence. Braving his physical ailments and

incapacity, the respondent had appeared before the Rent Control

Court and adduced evidence as PW1 in support of the above

requirement to have possession of the building which he had leased

out to the revision petitioner. The revision petitioner, a Municipal

Councillor who was expected to alleviate the sufferings of the people

whom he represent, resorted to all obnoxious contentions including

denial of the rental arrangement, to prevent the respondent-landlord

residing in his ward, from getting possession of the petition schedule

building. On two occasions, he remained ex parte and thereafter

filed petitions to set aside the ex parte order, and thus procrastinated

the proceedings to a certain extent. However, the Rent Control Court

finally gave solace to the respondent by its order dated 11.04.2023

directing the revision petitioner to hand over vacant possession of

the petition schedule building to the respondent. The above order

was passed after a detailed evaluation of the bona fide need

projected by the respondent, and also the non-applicability of

provisos (1) and (2) of Section 11(3) of the Act. The Appellate

Authority concurred with the findings of the Rent Control Court and

rendered its judgment dated 21.11.2023 in R.C.A.No.10 of 2023

dismissing the said appeal, and directing the revision petitioner to

give vacant possession of the petition schedule building to the

respondent within one month.

5. 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.

6. In Nalakath Saidali Haji v. Kalluparamba Musthafa and

others [2015 (4) KHC 815], a Division Bench of this Court relied

on the law laid down in the decisions of the Apex Court referred to

supra, and held that the question as to whether a particular need is

bona fide or not has to be judged by the Court, placing itself in the

position of landlord.

7. 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.

8. In Gireeshbabu T.P. v. Jameela and others [2021 (5)

KHC SN 30], a Division Bench of this Court in which one among us

(Anil K. Narendran, J) was a party, held 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 but, of course, subject to the first and

second provisos to Section 11(3).

9. In Aboobacker.C.P v. K.T.Sreelatha Nambiar [2022

KHC 5100] also, a Division Bench of this Court in which one among

us, (Anil K. Narendran, J.) was a party, has held that once, on the

basis of 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 the said Act.

10. In the case on hand, as already stated above, the

evidence tendered by the respondent-landlord before the Rent

Control Court as PW1, would leave no room for any doubt about his

bona fide need to have the petition schedule building for his

residential occupation since he wanted to accommodate his daughter

and son-in-law in the house where he is now residing. On the other

hand, the conduct of the revision petitioner who clung on to all flimsy

and untenable contentions to defeat the respondent from getting

possession of his house, would go to show that there was absolutely

no bona fides in his case which he put forward as defence in this

proceedings.

11. As regards the onus of proving requirements of provisos

1 and 2 of Section 11(3) of the Kerala Buildings (Lease and Rent

Control) Act, it is well-settled that it is upto the tenant to bring out

the requisite particulars through convincing evidence, for seeking

the protection of the said provisos.

12. Following various earlier decisions of this Court, it has

been held by a Division Bench of this Court in Chethil Tharemmal

Rasheeda v. Peedikayilakath Muhammad [2021 (6) KHC

723], in which one among us, (Anil K. Narendran, J.) was a party,

that the burden to prove the first proviso to Section 11(3) of the

Kerala Buildings (Lease and Rent Control) Act, is on the tenant. So

also, in Aboobacker.C.P v. K.T.Sreelatha Nambiar (supra) it has

been held that it is the absolute burden of the tenants to prove both

limbs of the second proviso to Section 11(3) of the Kerala Buildings

(Lease and Rent Control) Act.

13. As far as the present case is concerned, it is apparent

from the facts and circumstances of the case and the evidence on

record, as revealed from the impugned order and judgment of the

courts below, that there is no applicability for provisos (1) and (2)

of Section 11(3) of the Act.

14. The discussions aforesaid would lead to the irresistible

conclusion that the impugned judgment of the Rent Control

Appellate Authority, which confirmed the order of the Rent Control

Court, is neither perverse nor patently illegal, warranting

interference in this revision.

15. At the time when our verdict in the above regard, was

about to be pronounced, the learned counsel for the revision

petitioner sought six months' time to vacate the petition schedule

building, stating the reason that the construction work of the house

of the revision petitioner would be complete only by that time. The

above period of time sought by the revision petitioner to vacate the

petition schedule building is too long that it would definitely cause

further hardships and sufferings to the respondent-landlord.

However, we are inclined to grant two months' time to the revision

petitioner to hand over vacant possession of the petition schedule

building to the respondent, taking into account of the time lag, which

may happen in the efforts of the revision petitioner while making

alternate arrangements for shifting his residence.

16. In such circumstances, this Rent Control Revision is

dismissed declining interference on the impugned judgment of the

Rent Control Appellate Authority and also the order of the Rent

Control Court; however by granting two months' time to the

petitioner-tenant, to surrender vacant possession of the petition

schedule building to the respondent-landlord, subject to the

following conditions:

(i) The petitioner-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 building to the respondent-landlord within two months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop building;

(ii) The petitioner-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 two 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 petitioner-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 building will stand cancelled automatically and the respondent-landlord will be at liberty to proceed with the execution of the order of eviction.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

G. GIRISH, JUDGE jsr/vgd