B. G. Rajesh Kumar v. Sreelekshmi Suresh

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 RCREV. NO.31 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 31.07.2023 IN RCA NO.6 OF 2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, ALAPPUZHA / III ADDITIONAL MACT, ALAPPUZHA ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT`** ``` B. G. RAJESH KUMAR ``` ``` AGED 48 YEARS, S/O. GOPINATHAN B.G.R. JWELLERY, ROOM NO. AMCW XVII/1161F, RETNA ARCADE, AMMANKOVIL STREET, MULLACKAL, ALAPPUZHA., PIN – 688 011 ``` ``` BY ADVS. B.PRAMOD BIJU VIGNESWAR ATHUL M.V. ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` SREELEKSHMI SURESH AGED 47 YEARS, W/O. SURESH, RETNA ARCADE, AMMANKOVIL STREET, MULLACKAL, ALAPPUZHA, PIN – 688 011 ``` ``` BY ADV NAMRIN SHAJU V.B.HARI NARAYANAN ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.Rev.No.31 of 2024 ## **ORDER** ## **G. GIRISH, J.** The respondent-tenant in R.C.P.No.53 of 2016 of the Rent Control Court, Alappuzha has filed this revision against the judgment dated 31.07.2023 in R.C.A.No.6 of 2023 of the Rent Control Appellate Authority (Additional District Judge-III), Alappuzha, which confirmed the order of eviction passed by the Rent Control Court, Alappuzha in R.C.P.No.53 of 2016 under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. 2. The respondent-landlady had filed petition before the Rent Control Court for the eviction of the revision petitionertenant from the petition schedule shop room stating the reason that the rent has been in arrears from October 2015 onwards, and that the petition schedule shop room is required for the respondent-landlady for conducting the business of manufacture and sale of one gram gold ornaments. The petitioner-tenant opposed the Rent Control Petition contending that the respondent-landlady demanded exorbitant rent and that when the petitioner-tenant refused to make payment of the above exorbitant rent demanded by the respondent-landlady, she resorted to the proceedings for eviction without any bona fides. 3 R.C.Rev.No.31 of 2024 In the trial before the Rent Control Court, the respondentlandlady was examined as PW1 and four documents were marked as Exts.A1 to A4 on the part of the respondent-landlady. The petitioner-tenant was examined as DW1. A commission report and Mahazar prepared by an Advocate Commissioner appointed by the Rent Control Court were marked as Exts.C1 and C1(a) respectively. After an evaluation of the above evidence and hearing both sides, the Rent Control Court found that the petitioner-tenant is liable to be evicted from the petition schedule shop room on the ground of bona fide need of the respondent-landlady envisaged under Section 11(3) of the Act. As regards the claim of arrears of rent, it was observed that no order under Section 11(2)(b) of the Act is required since the petitioner-tenant remitted the arrears of rent in the proceedings under Section 12 initiated by the respondent-landlady. 3. Though the petitioner-tenant challenged the above order of the Rent Control Court before the Rent Control Appellate Authority, Alappuzha, he could not succeed. The Rent Control Appellate Authority (Additional District Judge-III), Alappuzha, as per judgment dated 31.07.2023 in R.C.A.No.6 of 2023, upheld the findings of the Rent Control Court in the order dated 07.12.2016 in R.C.P.No.53 of 2016 and dismissed the appeal. 4 R.C.Rev.No.31 of 2024 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 5. A perusal of the impugned judgment of the Rent Control Appellate Authority and the order passed by the Rent Control Court in R.C.P.No.53 of 2016 would go to show that the Rent Control Court and the Appellate Authority arrived at the finding under Section 11(3) of the Act after evaluating the evidence on record in the correct perspective. As regards the bona fide need on the basis of which the respondent-landlady sought eviction, it is seen that she had adduced oral evidence before the Rent Control Court as PW1 in support of her contention that the petition schedule shop room is required for her business of manufacture and sale of one gram gold ornaments. The evidence on record would further disclose that the respondent-landlady has been conducting the above business of sale of one gram gold ornaments in a rented building, and that her landlord is said to have asked her to vacate the premises. There is absolutely no reason to suspect the above case put forward by the respondent-landlady. It is the settled position of law that when the landlord approaches the Rent Control Court for getting possession of his building for a genuine 5 R.C.Rev.No.31 of 2024 sincere and honest purpose, the Rent Control Court is having no option but to allow the prayer in that regard. 6. 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 convince the court that it is not a mere fanciful or whimsical desire. 7. In **Nalakath Saidali Haji v. Kalluparamba** 6 R.C.Rev.No.31 of 2024 **Musthafa and others [2015 (4) KHC 815]** , a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra, and held that the question as to whether a particular need is bona fide or not has to be judged by the Court, placing itself in the position of landlord. 8. 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. 9. **In Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** , a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a party, held 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 7 R.C.Rev.No.31 of 2024 certainly be entitled for an order of eviction under Section 11(3) of the Act but, of course, subject to the first and second provisos to Section 11(3). ## 10. In **Aboobacker.C.P v. K.T.Sreelatha Nambiar** **[2022 KHC 5100]** also, a Division Bench of this Court in which one among us, (Anil K. Narendran, J.) was a party, has held that once, on the basis of 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 the said Act. 11. The Rent Control Appellate Authority and the Rent Control Court have also dealt with in detail about the applicability of proviso 1 and 2 of Section 11(3) of the Act, and arrived at a finding that the petitioner/tenant has not succeeded in establishing that he is entitled for the protection and privilege of the above provisos. 12. As regards the onus of proving requirements of provisos 1 and 2 of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, it is well-settled that it is upto the tenant 8 R.C.Rev.No.31 of 2024 to bring out the requisite particulars through convincing evidence, for seeking the protection of the said provisos. 13. Following various earlier decisions of this Court, it has been held by a Division Bench of this Court in **Chethil Tharemmal Rasheeda v. Peedikayilakath Muhammad [2021 (6) KHC 723]** , in which one among us, (Anil K. Narendran, J.) was a party, that the burden to prove the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, is on the tenant. So also, in **Aboobacker.C.P v. K.T.Sreelatha Nambiar** (supra) it has been held that it is the absolute burden of the tenants to prove both limbs of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. 14. As a conclusion to above discussions, we find that the impugned order of the Rent Control Court and the judgment of the Rent Control Appellate Authority are neither perverse nor patently illegal warranting interference in revision. When our view in the above regard was made clear, the learned counsel for the revision petitioner submitted that a period of one year may be granted to the revision petitioner to vacate the petition schedule shop room. The request in the above regard has been opposed by the learned counsel for the respondent-landlady 9 R.C.Rev.No.31 of 2024 stating the reason that the grant of such a long period for vacating the premises would cause hardship and sufferings to the respondent-landlady, who has been behind this litigation for the eviction of the petitioner-tenant for the past eight years. Having regard to the submission of the learned counsel for the revision petitioner and the learned counsel for the respondent on the above aspect, we deem it appropriate to permit the petitioner-tenant to vacate the petition schedule shop room within a period of seven months from the date of this order, if he is ready to abide by the terms and conditions enumerated hereunder. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting seven months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlady, subject to the following conditions: - (i) The petitioner-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 10 R.C.Rev.No.31 of 2024 that he will surrender vacant possession of the petition schedule shop room to the respondentlandlady within seven 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 that 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 petitioner-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 two weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; - (iii) Needless to say, in the event of the petitioner-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 respondent-landlady will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **G. GIRISH, JUDGE** ded