Abubaker v. Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 13[TH] DAY OF OCTOBER 2022/ 21ST ASWINA, 1944 R.C.REV. NO. 192 OF 2020 AGAINST THE JUDGMENT DATED 20.02.2020 IN R.C.A.NO.2 OF 2019 OF THE RENT CONTROL COURT (ADDITIONAL DISTRICT JUDGE-V), PALAKKAD AND THE ORDER DATED 07.09.2018 IN R.C.P.NO.20 OF 2016 OF THE RENT CONTROL COURT (MUNSIFF), PATTAMBI** ## **REVISION PETITIONER:** **ABUBAKER** **AGED 65 YEARS, S/O PADINJATTUMURI MANALATH ABDU, KADAVALLUR VILLAGE DESOM,THALAPPILLY TALUK, RESIDING AT CHALISSERY AMSOM DESOM, PATTAMBI TALUK,PALAKKAD DISTRICT.** **BY ADVS. ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SRI.E.MOHAMMED SHAFI** ## **RESPONDENT:** **VARGHESE S/O KOLADI MATHAYIKUTTY, P.O.MARATHAMKODE, THALAPPILLY TALUK, PALAKKAD-680604.** **BY ADV SRI.JOHN JOSEPH(ROY)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL** **HEARING ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.192 of 2020 ## **O R D E R** ## Ajithkumar, J. The tenant is the revision petitioner. The respondentlandlord filed R.C.P.No.20 of 2016 before the Rent Control Court (Munsiff), Pattambi, seeking eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per the order dated 07.09.2018 the Rent Control Court allowed the R.C.P. The petitioner preferred an appeal under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (Additional District Judge-V), Palakkad, allowed the appeal in part. Order of eviction under Section 11(2)(b) of the Act was set aside, and the order of eviction under Section 11(3) was confirmed. The petitioner assails the said judgment and also the order in this revision petition filed under Section 20 of the Act. 2. On 17.11.2020, notice on admission was ordered to be served on the respondent. The respondent entered appearance through his learned counsel. On 09.02.2021, the revision petition was admitted to file and an order of interim stay for a period of six months was granted. 3 R.C.Rev.No.192 of 2020 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The title of the respondent to the petition schedule building is admitted. On 18.04.2012 the petitioner availed the said building on rent. The petitioner and respondent entered into an agreement for sale on 03.06.2013. The petitioner agreed to purchase the petition schedule building and the appurtenant land for a sum of Rs.53 lakhs and Rs.7 lakhs was paid as advance sale consideration. That contract did not get through. The respondent while so filed the R.C.P. contending that the petitioner defaulted payment of rent from March 2014 onwards and that the building is required for own occupation of the son of the respondent, who is a dependent on him. 5. The petitioner resisted the claim for eviction. His contention is that there is no landlord-tenant relationship inasmuch as the relationship has metamorphosed into one of 4 R.C.Rev.No.192 of 2020 seller and buyer, in the light of the agreement dated 03.06.2013 for sale. The bona fides of the need urged by the respondent was denied also. 6. Before the Rent Control Court, PWs.1 to 3 were examined and Exts.A1 to A9 were marked on the side of the respondent. Ext.B1 was produced on the side of the petitioner. The Rent Control Court did not accept the plea of the petitioner that the character of the tenancy relationship was changed into one of seller and buyer and hence the respondent was not entitled to claim eviction under the provisions of the Act. Although the petitioner contended that Ext.A1 rent agreement dated 18.04.2013 is a forged one, the courts below rejected that contention. Both the courts concurrently found that execution of Ext.A1 was duly proved by the oral testimony of PWs.1 and 2. PW1 is the landlord and PW2 is an attesting witness in Ext.A1. After considering their evidence in detail, the courts below entered into a finding that execution of Ext.A1 has been duly proved. Execution of 5 R.C.Rev.No.192 of 2020 Ext.B1, agreement for sale is not disputed. It may be noted that there is no recital in Ext.B1 that in part performance of the contract for sale, possession of the building was handed over to the petitioner. Therefore, it cannot be said that the principle laid down in **Kanthimathi and another v. Beatrice Xavier [AIR 2003 SC 4149]** is applicable to the facts of this case. 7. In **Safeena Salim v. P. A. Subair [2014 (4) KLT 752]** a similar question was considered by this Court. It was held, “The trump card plea of the tenants is that they had a contract of sale in their favour and, therefore, the landlord's right does not continue to be what it was as between the landlord and the tenants. It is submitted that, as of now, the suit for specific performance of that contract of sale is pending trial. Suffice it for us to say, that it is trite law that a contract of sale does not create any interest in immovable property. Nor does a decree or order under the Specific Relief Act directing specific performance of a contract of sale by itself amount 6 R.C.Rev.No.192 of 2020 to create an interest in immovable property either by way of charge or otherwise. It is trite law that even such a decree or order has to undergo the process of execution or enforcement through the competent Court, resulting in transfer of property, either voluntarily or by intervention of Court. It is only then that the transferee under the contract of sale can claim that the said contract has got transformed into a real right in the property. This is the law. That being so, we are unable to conceive that merely because a tenant in possession obtains a contract of sale, there could be any transmutation of the rights and the characteristics of parties for a Court to assume that the possession of a building tenant under Act 2 of 1965 should be treated as one who has been put to be in continuing possession in part performance of the contract of sale” ## 8. In **Andrews V. M. v. Daisy Punnan and others** ## **[2016 (2) KHC 37]** this Court held, “It is settled law that merely because the tenant entered into an agreement for sale with the landlords is not a ground to be taken to refer the parties to Civil Court as the agreement to sell will not confer any title 7 R.C.Rev.No.192 of 2020 on the tenant and the relationship between them will continue as landlord and tenant. So, on that ground the jurisdiction of the Rent Control Court is not taken away from considering the question under S.11 of the Act. This was so held in the decisions reported in Robert Welress v. Mammu, 1985 KHC 251 : 1985 KLT 1121 : 1985 KLJ 869 and Hajira Umma v. Razak, 1991 KHC 488 : 1991 (2) KLT 700 : 1992 (1) KLJ 134 : ILR 1992 (1) Ker. 537 by two Single Benches of this Court which we feel is correct in law.” 9. In the light of the principles laid down in the aforesaid decisions, it cannot be said that the landlord-tenant relationship ceased to exist on execution of the agreement for sale as contained in Ext. B1. We are also of the view that the petitioner is not able to successfully contend that he is not a tenant, but only a buyer holding the property under an agreement for sale. Therefore, a proceeding for his eviction under the provisions of the Act is maintainable and the contention of the petitioner in this regard is untenable. 10. PW1 deposed before the court that his son, who is married, requires separate residence and for that purpose the 8 ## R.C.Rev.No.192 of 2020 petition schedule building is needed. There is no case for the petitioner that the respondent has any other building of his own that can be used for the said purpose. It is not in dispute that the son of the respondent has married. When the respondent seeks vacant possession of the petition schedule building for the residence of his married son, it cannot be said that the need is not genuine or bona fide. Of course, if the petitioner could show that there is some oblique motive for the landlord, his claim for eviction may not succeed. But, there is nothing on record to show that the respondent has any such dishonest motive for demanding eviction of the petitioner. 11. 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 9 R.C.Rev.No.192 of 2020 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. 12. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court 10 R.C.Rev.No.192 of 2020 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. 11 R.C.Rev.No.192 of 2020 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. 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 Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 12 R.C.Rev.No.192 of 2020 14. Applying the said criteria we find that the need urged by the respondent that he wants vacant possession of the petition schedule building for the occupation of his married son is genuine, honest and bona fide. The building in question is a residential one. Therefore, the second proviso to Section 11(3) of the Act has no application. 15. 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 13 ## R.C.Rev.No.192 of 2020 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. 16. 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** 14 R.C.Rev.No.192 of 2020 **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. 17. 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. 18. Viewed in the light of the principle laid down in the aforesaid decisions, we find no reason to interfere with the concurrent findings in the judgment of the Appellate Authority 15 R.C.Rev.No.192 of 2020 and the order of the Rent Control Court leading to the order of eviction, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 19. The learned counsel for the petitioner has made a request to afford six months' time for vacating the premises pointing out the difficulty in identifying another building. The learned counsel for the respondent is agreeable to grant reasonable time. 20. Having considered all the aspects, we deem it appropriate to grant three months’ time to the tenant to surrender vacant possession of the petition schedule building, 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 building to the petitioner-landlord within three months from the date of this order and that, he shall not induct third parties into 16 R.C.Rev.No.192 of 2020 possession of the petition schedule building 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; - (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 building 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