Ahamedkunju v. Sainaba and others

RCR No. 206/2022 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 RCREV. NO. 206 OF 2022 ORDER DATED 19.03.2018 IN RCP 6/2011 OF RENT CONTROL COURT, PATHANAMTHITTA JUDGMENT IN RCA 3/2018 OF RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA ## REVISION PETITIONER/RESPONDENT/PETITIONER: AHAMEDKUNJU AGED 63 YEARS S/O LATE. K. IBRAHIMKUTTY, KAVALACKAL VILLA, KOLLAKADAVU P.O, CHERIYANADU MURI, CHERIYANADU VILLAGE, CHENGANOOR TALUK, ALAPPUZHA DISTRICT, PIN – 690 509. BY ADVS. ATUL SOHAN BRIGHT SINGH JOHN J.P.(K/143/2023) R.REJI (ATTINGAL)(K/1471/2003) SREEJA SOHAN K.(K/001271/2001) K.V.SOHAN(K/475/1981) ## - RESPONDENTS/APPELLANTS/RESPONDENTS: *1 SAINABA (DIED) AGED 72 YEARS W/O LATE. ABDUL KHADER, VAZHAVILAYIL HOUSE, PETTA, VETTIPURAM MURI,PATHANAMTHITTA VILLAGE, PATHANAMTHITTA DISTRICT, PIN – 689 645. 2 SHAJAHAN M.C AGED 54 YEARS S/O LATE. ABDUL KHADER, VAZHAVILAYIL HOUSE, PETTA, VETTIPURAM MURI, PATHANAMTHITTA VILLAGE, PATHANAMTHITTA DISTRICT, PIN – 689 645. (AS PER ORDER DATED 21/03/2023, THE CONTENTS OF THE MEMO RCR No. 206/2022 : 2 : DATED 23/02/2023 IS RECORDED THAT R1 DIED AND HIS LEGAL HEIRS ARE ALREADY IN THE PARTY ARRAY AS RESPONDENT NO.2 ) BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. AMAL AMIR ALI THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON 06.12.2023 DELIVERED THE FOLLOWING: RCR No. 206/2022 : 3 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------- R.C. Rev. No. 206 of 2022 --------------------------------------------------------Dated this the 6[th] day of December, 2023. ## **ORDER** Johnson John, J **.** The revision petitioner is the landlord. The petition filed by the landlord seeking eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('Act' for short) was allowed by the Rent Control Court. But, the Rent Control Appellate Authority reversed the finding of the Rent Control Court and dismissed the Rent Control Petition of the landlord. 2. The learned counsel for the revision petitioner argued that the appellate authority set aside the well reasoned order of the Rent Control Court ignoring the settled principles of law and on erroneous appreciation of facts and the impugned order of the appellate authority is illegal and irregular and therefore, liable to be set aside . 3. Heard Sri. K.V. Sohan, the learned counsel for the revision petitioner and Sri. Joseph P. Alex, learned counsel for the respondent. RCR No. 206/2022 : 4 : 4. A perusal of the impugned judgment of the appellate authority shows that the appellate authority, based its finding on the reasoning that in the year 1996, the landlord issued a notice seeking enhancement of rent and thereafter in the year 1998, the landlord issued Exhibit A1 notice seeking vacant possession of the building for the landlord to start a business in sale of furniture, coir mattresses, pillows etc. and thereafter failed to take further steps in the matter and the said notices were issued only to coerce the tenant to pay enhanced rent and in the present petition filed under Section 11(3) of the Act also, the need alleged is that the landlord wants to start a business of his own in the sale of furniture, coir, mattresses, pillows and allied types of items, and if the requirement of the landlord was genuine and true, he would not have gone abroad on the mere reason that the tenant had not vacated the building and he would have initiated legal proceedings against the tenant immediately after the expiry of the period allowed to the tenant to vacate the building as per Exhibit A1 notice. It is further held by the appellate authority that the conduct of the landlord in not instituting legal proceedings against the tenant even after 12 years from the date of issuance of Exhibit RCR No. 206/2022 : 5 : A1 notice would show that the requirement set up by the landlord is not genuine and true. 5. The learned counsel for the petitioner/landlord pointed out that the evidence of PW1 would clearly show that at the time of issuing Exhibit A1 notice in the year 1998, the petitioner was unemployed and thereafter, he received an opportunity to continue his work in Gulf and therefore, he went to Gulf in the year 1999 and it was in that circumstances, he abandoned the claim for eviction as per Exhibit A1 notice. It is also pointed out that the evidence of PW1 would clearly show that towards the end of 2010, he lost his work in Gulf and hence, returned to his native place and it is also in evidence that the petitioner has made all the arrangements to start the proposed business for his livelihood and that he has sufficient money to start the business. 6. The fact that the landlord previously issued notice to the tenant for increasing the rent is not a bar for claiming eviction on the ground of _bona fide_ need or any other ground. It is well settled that the demand for periodical increase of rent cannot be held to be so unreasonable and unjust so as to deny an otherwise just and genuine claim for vacant possession as held by this Court in _**Kurian K. Kuriakose v. Usha Cherian**_ [2008(1) KHC 731]. RCR No. 206/2022 : 6 : 7. We find force in the argument of the learned counsel for the petitioner that the appellate authority failed to consider the dictum laid down by this Court in _**Muhammed Sajid and others v. K.P. Khadeeja and others**_ [2018(3) KHC 110] that the abandonment of petition seeking eviction on the ground of _bona fide_ need on previous occasions cannot be taken to have any impact on the _bona fide_ need that is projected at a later point of time. In the said decision, it was also held that the _bona fide_ need has to be tested on the basis of the materials available at the relevant time. ## 8. In _**Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta**_ [(1999) 6 SCC 222], it was held by the Hon'ble Supreme Court that the Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself, whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest, and if the answer be in the positive, the need is _bona fide._ 9. In the case at hand, the appellate authority failed to see whether the _bona fide_ need projected by the landlord is in existence at the time of filing the petition for eviction. The landlord, when examined as PW1, deposed that he got an opportunity to continue his work in Gulf after the issuance of Exhibit A1 notice dated 13.11.1998 and therefore, he abandoned the claim and went abroad and towards the end of 2010, RCR No. 206/2022 : 7 : he was forced to wind up his activity in Gulf and hence, he returned to his native place and made all arrangements to start the proposed business in the petition schedule building. 10. Even though, PW1 was seriously cross examined, nothing material was brought out to discredit his evidence in this regard and in spite of that, the appellate authority, by discarding the settled position that abandonment of petition seeking eviction on previous occasions cannot be taken to have any impact on the _bona fide_ need that is projected at a later point of time, failed to consider the _bona fide_ need asserted by the petitioner on the basis of the materials available at the relevant time. 11. It cannot be disputed that the crucial date of cause of action is the filing date of application for eviction and the evidence of PW1 would show that he filed the present application for eviction under Section 11(3) of the Act, when he returned from Gulf after winding up his activity in Gulf. 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 this case, respondent/tenant has not adduced any reliable evidence to show that the evidence of PW1 that on receiving an opportunity he went to Gulf in the year 1999 and that towards the end of 2010, he lost his opportunity there and thereafter, he returned to his native place and subsequently made all RCR No. 206/2022 : 8 : arrangements to start the proposed business in the petition schedule building is false and therefore, we find that the impugned judgment of the appellate authority reversing the well reasoned order of the Rent Control Court is illegal and irregular and therefore, liable to be set aside. In the result, this Revision Petition is allowed and the judgment of the appellate court dated 16.03.2021 in R.C.A. No. 3 of 2018 is set aside and the order of the Rent Control Court dated 19.03.2018 in R.C.P No. 6 of 2011 is restored. sd/- **P.B. SURESH KUMAR, JUDGE.** sd/- **JOHNSON JOHN, JUDGE.** Rv