Anila Rajappan @ Anila Kumari v. B. Sreenivasan

## **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 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944 R.C.REV. NO. 129 OF 2022** **AGAINST THE JUDGMENT DATED 16.03.2022 IN R.C.A.NO.4 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), ALAPPUZHA AND THE ORDER DATED 31.10.2017 IN R.C.P.NO.32 OF 2016 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), ALAPPUZHA** ## **REVISION PETITIONER:** **ANILA RAJAPPAN @ ANILA KUMARI,** **AGED 57 YEARS, W/O. RAJAPPAN, AMCW 23/172 DEVI PHOTOSTAT, OPP. COLLECTORATE, LAJANATH WARD, ALAPPUZHA, RESIDING AT KOTTARAPARAMBIL, NEAR VALIAVEEDU TEMPLE, PATHIRAPALLY P.O., ALAPPUZHA - 688 521.** **BY ADV S.SUJINI** ## **RESPONDENT:** **B.SREENIVASAN AGED 79 YEARS, S/O. LATE BHIMA BHATTAR, RESIDING AT SUBRAMONIA NIVAS, OPP. COLLECTORATE, LAJANATH WARD, ALAPPUZHA - 688 001.** **BY ADV S.SHANAVAS KHAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.129 of 2022 ## **O R D E R** ## Ajithkumar, J. This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is filed by the respondent-tenant in R.C.P.No.32 of 2016 before the Rent Control Court (Munsiff), Alappuzha. The Rent Control Petition was filed by the respondent-landlord seeking eviction of the petitioner under Section 11(3) of the Act. As per the order dated 31.10.2017 eviction was ordered. An appeal was preferred under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-III), Alappuzha. The appeal was dismissed as per judgment dated 16.03.2022. Aggrieved by the said judgment and order, this revision has been filed. 2. On 19.07.2022, this revision was admitted to file and service of notice on the respondent was directed. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 3 R.C.Rev.No.129 of 2022 4. The respondent sought eviction on the ground that his daughter-in-law, who is dependent on him, needs the petition schedule shop room for conducting a boutique. The petitioner resisted the petition on the grounds that the petitioner has other buildings in his possession, the need urged was not bona fide and the petitioner is entitled to get protection from eviction under the provisions of the second proviso to Section 11(3) of the Act. 5. Both sides adduced evidence in the case. PWs.1 and 2 were examined on the side of the respondent and DWs.1 and 2 were examined on the side of the petitioner. Exts.A1, A2 and B1 were also marked. The Rent Control Court, after considering the said evidence, found that the need urged by the respondent was bona fide and the petitioner was not entitled to get the benefit under the second proviso to Section 11(3) of the Act. Before the Appellate Authority also the petitioner raised similar contentions. But the Appellate Authority did not accept. 4 R.C.Rev.No.129 of 2022 6. The learned counsel appearing for the petitioner would submit that the daughter-in-law of the respondent, PW2, is not a dependent of the respondent and the need urged is not proved to be a genuine one. Therefore, in the view of the learned counsel, the courts below went wrong in holding that the need urged was bona fide. PW1 is the respondent-landlord. PW2 is the daughter-in-law of PW1, for whose purpose eviction of the petitioner is sought. PW2 categorically deposed before the court that the petition schedule shop room is sufficient and suitable for her to start a boutique. The petition schedule shop room is in the vicinity of the Collectorate. Undoubtedly, so many people frequent the area. The petitioner is now conducting a photostat shop there. If such a business can be conducted successfully, the space can certainly be used for accommodating a boutique. Whether such a business would be profitable or not is not a consideration to decide whether the need urged is bona fide or not. 5 R.C.Rev.No.129 of 2022 7. 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. 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 6 R.C.Rev.No.129 of 2022 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. 8. 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** 7 R.C.Rev.No.129 of 2022 **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. 9. 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 8 R.C.Rev.No.129 of 2022 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. 10. In the light of the law laid down in the aforesaid decisions, what is required to be considered is whether the need has been projected by the landlord honestly and sincerely. PW2, who remains jobless, requires the room to start a boutique. In the light of the oral testimonies of PWs.1 and 2, it can only be said that the need urged by the respondent is bona fide. Both the courts below after appreciating the evidence on record came to such a conclusion. We do not find any reason to interfere with the said concurrent finding, since it is not perverse or illegal. 11. It is contended that the respondent has other shop rooms and landed properties from where sufficient income is generated. The fact that the landlord is an affluent person and derives sufficient income from his properties is not reasons to 9 R.C.Rev.No.129 of 2022 discard the need urged for claiming eviction. Regarding the availability of other rooms in the possession of the respondent, there has not been any specific pleading. No evidence in that regard is let in as well. 12. RW1, the petitioner, deposed before the court that she is depending for her livelihood solely on the income derived from her business of photostat in the petition schedule shop room. Other than the oral testimonies of DWs1 and 2, there is no evidence in that regard. During crossexamination before court, she admitted that other rooms are available in the locality. Of course, she got a contention that considering the nature of her business, shifting it to another building or room, situated even a short distance away, will adversely affect the prospects of her business. The relevant question in that regard is whether other rooms are available in the locality or not. Only if the non-availability of other suitable room is established, the tenant can sustain his claim for the benefit of the second proviso to Section 11(3) of the Act. The petitioner did prove that fact. In the said 10 R.C.Rev.No.129 of 2022 circumstances, we do not find any reason to hold that the findings of the courts below with reference to the first and second provisos to Section 11(3) of the Act are incorrect or perverse. ## 13. 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 11 R.C.Rev.No.129 of 2022 - 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. 14. 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. 12 R.C.Rev.No.129 of 2022 15. 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. 16. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the concurrent findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 17. The learned counsel for the petitioner has made a request to afford one year time for vacating the premises pointing out the difficulty in finding out another room and 13 R.C.Rev.No.129 of 2022 making necessary arrangements for shifting her business. The learned counsel for the respondent is agreeable to grant six months’ time. 18. Having considered all the aspects, we deem it appropriate to grant seven 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 from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that she will surrender vacant possession of the petition schedule shop room to the petitioner-landlord within seven months from the date of this order and that, she shall not induct third parties into possession of the petition schedule shop room and further she 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 14 R.C.Rev.No.129 of 2022 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 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