Abdul Azeez K.C. v. Vannankandi Khalid Haji and others

# **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 16[TH] 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 ## **O R D E R** ## 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 4 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 5 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. 6 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 7 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 8 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. 9 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 10 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 11 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 12 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** 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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