Ajith Kumar v. M. Asanaru Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 R.C.REV.NO.90 OF 2019** **AGAINST THE ORDER IN R.C.P.No.3 OF 2007 OF PRINCIPAL** **MUNSIFF'S COURT, NEDUMANGAD** **R.C.A No.4 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY,** **(DISTRICT COURT), THIRUVANANTHAPURAM** ## **REVISION PETITIONER:** **AJITH KUMAR AGED 48 YEARS S/O.VELAYUDHAN NAIR, PULIYATHINGAL HOUSE, IRUMBAMURI, ARUVIKKARA VILLAGE, NEDUMANGAD, THIRUVANANTHPAURAM-695565. BY ADVS. P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** ## **RESPONDENTS:** **M.ASANARU PILLAI AGED 75 YEARS S/O.MOHAMMED KUNJU, RESIDING AT D10, ULLAS NAGAR, PEROORKADA.P.O., THIRUVANANTHAPURAM, PIN-695005. BY ADVS. SRI.J.HARIKUMAR SRI.S.SHANAVAS (VAVARAMBALAM)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 04.07.2022, THE COURT ON 18.07.2022 DELIVERED THE FOLLOWING:** 2 R.C.R.No.90 of 2019 ## **O R D E R** ## Ajithkumar, J This is a revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Tenant is the petitioner. Landlord is the respondent. The respondent filed R.C.P No.3 of 2007 before the Rent Control Court (Principal Munsiff), Nedumangad seeking eviction under Section 11(2) (b) and 11(3) of the Act. Twice the matter was remanded to the Rent Control Court. As per order dated 20.01.2018, the Rent Control court ordered eviction under 11(3) of the Act. The appeal filed by the petitioner under Section 18(1)(b) of the Act was dismissed by the Appellate Authority (District Judge, Thiruvananthapuram) on 09.01.2019. 2. The Rent Control Petition was filed seeking eviction of the petitioner on the ground of arrears of rent and bona fide need. As per the order dated 05.09.2008, the Rent Control Court ordered eviction on the ground of arrears of rent, but declined eviction on the ground of bona fide need. The essential reason for denying eviction was that the nature of the business proposed to be started was not 3 ## R.C.R.No.90 of 2019 mentioned. Order of eviction under Section 11(2)(b) was vacated since arrears of rent was deposited by the petitioner. However, in the appeal filed by the respondent, the Appellate Authority, as per its judgment dated 27.06.2011, ordered eviction on the ground of bona fide need. The petitioner filed R.C.R No.365 of 2011 which was allowed. The matter was remanded to the Rent Control Court. 3. After the remand, the respondent got the petition amended by including the averment that he proposed to start a footwear business and further adding ground under Section 11(4)(iii) for eviction. After trial, the Rent Control Court ordered eviction. In the appeal, the Appellate Authority, as per its judgment dated 11.04.2014, set aside the order of eviction under Section 11(4)(iii) of the Act, however, confirmed the order of eviction under Section 11(3). The petitioner approached this Court again by filing R.C.R No.195 of 2014. That R.C.R was allowed and the matter was remanded to the Rent Control Court once again. It was observed that no evidence was adduced and no 4 ## R.C.R.No.90 of 2019 materials were placed either before the Rent Control Court or Appellate Authority as to under what circumstance the earlier proposed business of plywood was changed to a business of footwear. 4. The Rent Control Court held fresh trial in obedience to the order of remand. The petition was amended by the respondent by adding the plea that plywood business earlier conducted by him ended up in loss and as a plywood business was not conducive considering his health condition, he decided to conduct a footwear business in the petition schedule shop room. After considering the evidence in detail, the Rent Control Court found the need urged by the respondent to be bona fide and ordered eviction. In the appeal, RCA No.4 of 2018, the Appellate Authority reappreciated the evidence and after a detailed consideration, rendered judgment dated 09.01.2019, confirming the order of eviction. 5. On 01.03.2019, this revision was admitted and notice ordered to be served on the respondent. Execution of the order of eviction was stayed by an interim order in I.A 5 R.C.R.No.90 of 2019 No.2 of 2019 for a period of two weeks. The order of stay was extended from time to time and is still in force. 6. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 7. As per the order of this Court dated 09.06.2017 remanding the matter, the Rent Control Court was obliged to decide, whether there was sufficient pleadings and proof to establish that the need urged by the respondent was honest, sincere and genuine so as to say it bonafide. Successive remands were occasioned since the respondent did not take a definite stand with respect to the business he proposed to start in the petition schedule shop room. Now his need is pleaded with definiteness. He wants to start a business in footwear. There is his oral testimony which is very detailed and meticulous to prove that fact. The question now remains to be considered is whether the need urged by the respondent can be said to be bona fide. 8. The petitioner has no plea based on the first proviso to Section 11(3) of the Act. He is conducting an 6 R.C.R.No.90 of 2019 electric and electronic shop in two adjoining rooms; the petition schedule shop room and the other one owned by him. It implies that his eviction from the petition schedule shop room would not result in closing down of his business, but its volume would be reduced only. As such, there is no scope for a plea by the petitioner under the second proviso to Section 11(3) of the Act. In the light of the order of this Court in R.C.R. No. 195 of 2014 the finding regarding his disentitlement to plea under the second proviso has already become final also. 9. 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 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. 7 ## R.C.R.No.90 of 2019 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. 10. 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 8 ## R.C.R.No.90 of 2019 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. 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)** 9 ## R.C.R.No.90 of 2019 **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. Initially, the respondent stated that he wanted to start a plywood business, the obvious reason being he earlier conducted such a business in the same shop room. He stopped that business, as per his version, due to loss and let out the petition schedule shop room to the petitioner. At the time when he was examined on 16.12.2017 before the Rent Control Court, he was aged 73 years. He had a case at 10 R.C.R.No.90 of 2019 the initial stages that his son also would help him in the business. He now says that his children are abroad, a fact which is conceded by the petitioner, and therefore he alone had to conduct the business. Considering such circumstances, he decided to conduct a footwear business instead of a plywood business. 13. There is no rigid rule that if a landlord proposed a particular business when sought eviction on the ground of bonafide need, he can start that business alone. The consideration can be only whether he projected the need with bonafides or not. This case was initiated in the year 2007. The landlord was aged around 63 years then. Considering his health and other circumstances he ventured to start a plywood business. When time went on and circumstances kept changing, he was compelled to think of an alternative business. Can he be blamed for such an inevitable switching over? It is the freedom and prerogative of a landlord to conduct any business as he deems it convenient and suitable to him. A tenant can certainly challenge the need on the ground of its bona fides. If from 11 ## R.C.R.No.90 of 2019 the evidence and the circumstances arising from the materials on record, it can be said that the need urged is honest and sincere by applying the test laid down by the Apex Court and this court in the aforementioned decisions, the irresistible conclusion shall be that he is entitled to eviction. Here, after considering the pleadings, evidence and also the other circumstances, the Rent Control Court, as well as the Appellate Authority, concluded that the need urged by the respondent was bona fide. 14. 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 12 ## R.C.R.No.90 of 2019 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. 15. 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 13 ## R.C.R.No.90 of 2019 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. 16. 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. 17. In the light of the law laid down in the aforesaid decisions, the extent of jurisdiction of this court under Section 20 of the Act is to ensure that the impugned orders are not perverse or illogical. From the discussion made above, we find no reason to say that the said findings concurrently entered into by the Courts below are illegal, 14 R.C.R.No.90 of 2019 irregular or improper. We, accordingly, hold that there is no reason justifying interference with the order of eviction under Section 11(3) of the Act concurrently rendered by the Rent Control Court and the Appellate Authority. This revision petition is therefore dismissed. **Sd/-** **ANIL K.NARENDRAN JUDGE Sd/P.G. AJITHKUMAR JUDGE** PV