Kerala High Court
Neeliveetil Pankajakshan vs Pokkinari Hashim on 27 March, 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 HARISANKAR V. MENON
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
R.C.REV. NO. 83 OF 2024
AGAINST THE JUDGMENT DATED 31.07.2023 IN RCA NO.10 OF 2022
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT COURT-I), KOZHIKODE, ARISING OUT OF THE ORDER
DATED 17.11.2021 IN RCP NO.35 OF 2017 OF THE RENT CONTROL
COURT (MUNSIFF), KOYILANDY
REVISION PETITIONER/APPELLANT/RESPONDENT:
NEELIVEETIL PANKAJAKSHAN
AGED 71 YEARS
S/O ACHUTHAN, RESIDING AT VIYYUR AMSOM, KOLLAM DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673305
BY ADVS.J.R.PREM NAVAZ
SUMEEN S.
MUHAMMED SWADIQ
RESPONDENTS/RESPONDENTS/PETITIONERS:
1 POKKINARI HASHIM
AGED 69 YEARS, S/O MAMMU HAJI, RESIDING AT MOODADI
AMSOM, VELLARAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE
DISTRICT, PIN - 673305
2 POKKINARI MUNEER
AGED 63 YEARS, S/O MAMMU HAJI, RESIDING AT MOODADI
AMSOM, VELLARAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE
DISTRICT, PIN - 673305
3 POKKINARI SHAREEFA
AGED 51 YEARS, W/O BEERANKUTTY, RESIDING AT MOODADI
AMSOM, VELLARAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE
DISTRICT, PIN - 673305
2
R.C.R.No.83 of 2024
4 POKKINARI MUHAMMED AMEER SUHAIL
AGED 33 YEARS, S/O BEERAN KUTTY, RESIDING AT MOODADI
AMSOM, VELLARAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE
DISTRICT, PIN - 673305
5 POKKINARI MUHAMMIL
AGED 30 YEARS, S/O BEERAN KUTTY, RESIDING AT MOODADI
AMSOM, VELLARAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE
DISTRICT, PIN - 673305
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
R.C.R.No.83 of 2024
ORDER
Anil K. Narendran, J.
The petitioner is the respondent-tenant in R.C.P.No.35 of
2017, on the file of the Rent Control Court (Munsiff), Koyilandi,
which is a petition filed by the respondents herein-landlords
under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala
Buildings (Lease and Rent Control) Act, 1965, seeking eviction of
the tenant from the petition schedule shop room. The need
projected in the Rent Control Petition for seeking an order of
eviction under Section 11(3) of the Act is that of the landlords to
start business in cement and sand (poozhi) in sacks by stocking
it in the petition schedule shop room. Before the Rent Control
Court, the tenant entered appearance and filed counter. Before
the Rent Control Court, the 1st respondent herein was examined
as PW1 and Exts.A1 to A6 were marked on the side of the
landlords. On the side of the tenant, he was examined as RW1
and Exts.B1 to B20 were marked. The report filed by the
Advocate Commissioner was marked as Ext.C1. After considering
the pleadings and evidence on record, the Rent Control Court
granted an order of eviction under Sections 11(2)(b), 11(3) and
11(4)(iii) of the Act and the tenant was directed to give vacant
possession of the petition schedule shop room to the landlords
within one month from the date of that order.
2. Challenging the order of eviction granted by the Rent
Control Court, the tenant filed R.C.A.No.10 of 2022 before the
Rent Control Appellate Authority (Additional District Judge-I),
Kozhikode, invoking the provisions under Section 18(1)(b) of the
Act. That appeal ended in dismissal by the judgment dated
31.07.2023, thereby confirming the order of eviction granted by
the Rent Control Court. Feeling aggrieved by the order of eviction
concurrently passed by the Rent Control Court as well as the
Appellate Authority, the tenant is before this Court in this Rent
Control Revision filed under Section 20 of the Act.
3. Heard the learned counsel for the petitioner-tenant.
4. Insofar as the order of eviction under Section
11(2)(b) of the Act is concerned, the learned counsel for the
petitioner-tenant would submit that the contention of the tenant
before the Rent Control Court as well as the Appellate Authority
is about adjustment of the rent advance and the amount spent
by the tenant towards improvements in the petition schedule
shop room, against the arrears of rent.
5. The above aspect is covered by the decision of this
Court in Gopala Panicker Baiju and another v. Mallika
[2018 (5) KHC 95], wherein a Division Bench of this Court held
that the relevant factors from which 'arrears of rent' can be
inferred are the rate of rent and period of default. In that
decision, it was held that neither Section 11(2)(b) nor Section 12
of the Act recognises or permits any kind of set off, adjustment
or counter claim by the tenant towards arrears of rent or
admitted arrears. Paragraph 8 of that decision reads thus:
"8. In this context, it is to be borne in mind that any kind of
set off or adjustment towards arrears of rent cannot be
accepted, while considering an application under S.12 of
the Act, as such counter claims require enquiry and
adjudication. Neither S.11(2)(b) nor S.12 recognises or
permits any kind of set off, adjustment or counter claim by
the tenant towards arrears of rent or admitted arrears. The
enabling provision which permits set off towards rent is
S.17(2) of the Act and the same is permissible, where an
order to that effect is passed by the Accommodation
Controller, on satisfaction of the failure on the landlord to
attend to maintenance and necessary repairs of the
building."
6. Following the law laid down in Gopala Panicker
Baiju, a Division Bench of this Court, in which one among us
(Anil K. Narendran, J.) was a party, held in Nandanam Tiles &
Sanitaries (P) Ltd. v. Abdul Gaffur [2022 (4) KHC 201] that
the only enabling provision which permits set off towards rent is
Section 17(2) of the Act and the same is permissible where an
order to that effect is passed by the Accommodation Controller
on satisfaction of the failure of the landlord to attend to
maintenance and necessary repairs of the building.
7. Viewed in the light of the law laid down in the
decisions referred to supra, it cannot be said that the reasoning
of the Rent Control Court as well as the Appellate Authority while
granting an order of eviction under Section 11(2)(b) of the Act is
either perverse or patently illegal and it cannot also be said that
while arriving at such a conclusion, the authorities have
committed any manifest error.
8. Insofar as the order of eviction granted under Section
11(4)(iii) of the Act is concerned, such a finding of the Rent
Control Court is based on Ext.C1 report of the Advocate
Commissioner, which contains the details of the rooms, which
are in the ownership and occupation of the tenant. The reasoning
for granting an order of eviction under Section 11(4)(iii) of the
Act is neither perverse not patently illegal, which requires no
interference in this Rent Control Revision.
9. Insofar as the order of eviction granted under Section
11(3) of the Act, during the course of arguments, the learned
counsel for the petitioner-tenant would confine the challenge
made in this Rent Control Revision against the finding of the
Rent Control Court as well as the Appellate Authority that the
need projected in the Rent Control Petition for seeking an order
of eviction under Section 11(3) of the Act is bona fide.
10. Section 11 of the Kerala Buildings (Lease and Rent
Control) Act deals with eviction of tenants. 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.
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 convince the court
that it is not a mere fanciful or whimsical desire.
12. 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. The Division Bench also noticed
the law laid down by the Apex Court in Kizhakkayil Suhara v.
Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC
19] that, not merely the need of the landlord but also the need
of the dependants for whom eviction is sought, should be
established to be bona fide. On the facts of the case on hand,
the Division Bench noticed that, neither the Rent Control Court
nor the Appellate Authority has considered the need put forward
by the landlord in accordance with the principles laid down in the
decisions referred to supra and in the manner in which, the same
ought to have been considered. Both the authorities were
influenced by the fact that the landlord was holding an
employment visa. The Division Bench noticed that, there is
absolutely no evidence available on record regarding the nature
of the employment visa that the landlord was holding or the
terms subject to which the said visa has been issued to him. The
conclusions of both the authorities below are based on the
admission made by the landlord, while he was cross-examined
as PW1. Nothing precludes the landlord from going abroad for
employment. The case of the landlord in the Rent Control
Petition is that, he has left his employment abroad and has come
back to his native place. The fact that he is still holding an
employment visa, does not militate against the bona fide need
pleaded by the landlord.
13. 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.
14. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016
(2) KLJ 164], a Division Bench of this Court relied on the
decision of the Apex Court in Deena Nath v. Pooran Lal
[(2001) 5 SCC 705], wherein the Apex Court held that, in
order to order eviction on the ground of bona fide need of the
landlord, the statutory requirement is that there must be an
actual pressing need, not a mere whim or fanciful desire; it must
be in praesenti and also the landlord must not be in possession
of any other reasonably suitable accommodation of his own in
the town or city concerned. In the said decision, the Division
Bench relied on the decision of the Apex Court in Shiv Sarup
Gupta [(1999) 6 SCC 222], wherein it was held that, the term
'bona fide' or 'genuinely' refers to a state of mind. Requirement
is not a mere desire. The phrase 'required bona fide' is
suggestive of Legislative intent is an outcome of a sincere and
honest desire, in contra distinction with a mere desire, by the
Rent Control Legislation. In Abdul Salam v. Sebastian [2013
(4) KLT 592], a Division Bench of this Court held that, when
the landlord has clearly admitted in his evidence that vacant
rooms are in his possession, he has to attribute special reasons
for not occupying it, as the need mentioned under Section 11(3)
of the Act cannot be a mere desire. On the facts of that case,
since there was no sufficient opportunity given in the absence of
plea, the Rent Control Petition was remitted to the Rent Control
Court to enable the landlord to adduce evidence on that aspect
and for fresh consideration by the Rent Control Court. Therefore,
if there is admission on the part of the landlord of coming into
possession of vacant rooms, unless special reason is given for
not occupying the same, the need cannot be said to be bona fide
and he is not entitled to get an order of eviction under Section
11(3) of the Act.
15. 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).
16. In the instant case, the need projected in the Rent
Control Petition for seeking an order of eviction under Section
11(3) of the Act, is of the Act is that of the landlords to start the
business in cement and sand (poozhi) in sacks by stocking it in
the petition schedule shop room. That need was substantiated
by the oral testimony of the 1st respondent herein, who was
examined as PW1. After considering the pleadings and evidence
on record, the Rent Control Court as well as the Appellate
Authority arrived at a conclusion that the need projected in the
rent control petition for seeking an order of eviction under
Section 11(3) of the Act is bona fide. Viewed in the light of the
law laid down in the decisions referred to supra, it cannot be
said that the reasoning of the Rent Control Court and the
Appellate Authority on the above aspect is either perverse or
patently illegal, warranting interference by this Court in this Rent
Control Revision.
17. 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 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 in its discretion.
18. 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.
19. 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 20 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.
20. 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 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.
21. 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.
22. 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.
23. In Abdul Salam v. Sebastian [2013 (4) KLT 592],
a Division Bench of this Court held that, even though in the
decisions of the Apex Court and this Court, it has been held
that, in revisional jurisdiction there cannot be a re-appreciation
of evidence in order to come to a different conclusion on the
same set of facts, it has been held in those decisions itself that,
if the view taken is perverse and the statutory scheme has not
been kept in mind and if it requires correction, then Court can
re-appreciate the evidence. When the argument is that, the
approach made by the authorities are perverse, it cannot be said
that this Court cannot look into the pleadings and scan through
the evidence to find out whether the conclusions have been
arrived at properly on the pleadings and evidence.
24. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016
(2) KLJ 164], a Division Bench of this Court held that, the High
Court (in revision) is obliged to test the order of the Rent Control
Court on the touch stone of whether it is according to law. For
that limited purpose, it may enter into reappraisal of evidence for
the purpose of ascertaining whether the conclusion arrived at by
the Rent Control Court is wholly unreasonable or is one that no
reasonable person acting with objectivity could have reached on
the material available.
25. Viewed in the light of the law laid down in the
decisions referred to supra, conclusion is irresistible that the
reasoning of the Rent Control Court and the Appellate Authority
while ordering eviction of the tenant under Sections 11(2)(b),
11(3) and 11(4)(iii) of the Act is neither perverse nor patently
illegal. It cannot also be said that, while ordering eviction of the
tenant under the aforesaid Sections of the Act, the authorities
below have committed a manifest error, warranting interference
of this Court, in exercise of the revisional jurisdiction under
Section 20 of the Act. Therefore, we find no reason to interfere
with the order of eviction passed by the Rent Control Court and
the Appellate Authority under Sections 11(2)(b), 11(3) and
11(4)(iii) of the Act.
26. The learned counsel for the petitioner-tenant would
submit that the tenant is conducting business in the petition
schedule shop room. The tenant may be granted at least six
months' time to vacate the petition schedule shop room. The
tenant is prepared to clear the entire dues, if any, towards
arrears of rent, within a time limit that may be fixed by this
Court, and he shall continue to pay monthly rent for the
remaining period, without any default, till he gives vacant
possession of the petition schedule shop room to the landlords.
27. In such circumstances, this Rent Control Revision is
dismissed declining interference on the impugned judgment/
order of the Rent Control Appellate Authority and the Rent
Control Court; however, by granting four months' time to the
petitioner-tenant, to surrender vacant possession of the petition
schedule shop room to the respondents-landlords, 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 four
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 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 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/-
HARISANKAR V. MENON, JUDGE
AV/1/4
