Babu v. Jinto

## **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 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 R.C.REV. NO. 167 OF 2020** **AGAINST THE JUDGMENT DATED 08.06.2020 IN R.C.A.NO.107 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THRISSUR AND THE ORDER DATED 29.02.2016 IN R.C.P.NO.93 OF 2012 OF THE RENT CONTROL COURT (MUNSIFF), CHAVAKKAD** ## **REVISION PETITIONER:** ## **BABU,** **AGED 52 YEARS, S/O. RAMAN, VADAKKAN HOUSE, ENGADIYUR AMSOM, KUNDALIYUR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **BY ADV RAJIT** ## **RESPONDENT:** ## **JINTO,** **AGED 35 YEARS, S/O. GEORGE, PURATHUR KUNKUMATH HOUSE, ENGANDIYUR AMSOM, KUNDALIYUR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **BY ADV G.SREEKUMAR (CHELUR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.Rev.No.167 of 2020** ## **O R D E R** ## Ajithkumar, J. This is a revision petition filed by the respondent-tenant in R.C.P. No.93 of 2012 on the file of the Rent Control Court (Munsiff), Chavakkad. That rent control petition was filed by the respondent-landlord seeking eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered. The order of eviction of the Rent Control Court was assailed by the petitioner by filing an appeal under Section 18(1)(b) of the Act as R.C.A.No.107 of 2016 before the Rent Control Appellate Authority (District Judge), Thrissur. But that appeal was dismissed. Hence, this revision petition. 2. Eviction was sought on the ground that the respondent wanted to start a stationery business in the petition schedule shop room. The said need projected by the landlord was refuted by the petitioner by filing a counter statement. The petitioner contended that the respondent has a share in his father's supermarket business, which is housed in the building just opposite to the petition schedule shop 3 **R.C.Rev.No.167 of 2020** room and the respondent has in his possession many other rooms and that the petitioner is entitled to get protection from eviction under the second proviso to Section 11(3) of the Act. 3. The Rent Control Court after considering the evidence came on record, which consists of oral testimony of PW1 and RW1 and Exts.A1 to A3, concluded that the need urged by the respondent was bonafide and the petitioner was liable to be evicted. His claim for protection from eviction under second proviso to Section 11(3) of the Act was declined. The Appellate Authority has revisited the evidence and considered the contentions of the petitioner. The Appellate Authority concurred with the finding of the Rent Control Court, resulting in dismissal of R.C.A.No.107 of 2016. 4. Today, we have heard the learned counsel for the petitioner in detail. 5. The respondent purchased in the year 2011 the building having eight rooms, one among which is the petition schedule shop room. He contends that all the rooms are occupied by various tenants and as he requires to start a 4 **R.C.Rev.No.167 of 2020** stationery business, he filed R.C.P.No.93 of 2012 seeking eviction of the petitioner on the ground of bonafide need. It is his contention that he is married, having two children, but remains unemployed, and therefore he decided to start a business to augment his income. Stating that the petition schedule shop room has enough convenience for the same, eviction of the petitioner was sought. The respondent as PW1 deposed in court to substantiate his contentions. He has deposed in detail as to why he wanted vacant possession of the petition schedule shop room, non-availability of any other vacant room in his possession and also denying the allegation that he has share in the supermarket business being conducted by his father in a nearby building. 6. The petitioner also gave evidence in court as RW1. He admits the landlord-tenant relationship. He, however, deposed that PW1 has so many rooms, which are all occupied by the tenant and the income therefrom is a pretty huge sum, and therefore, there is no need or reason for his starting a stationery business. RW1 thereby asserted that the demand 5 ## **R.C.Rev.No.167 of 2020** for his eviction is only a pretext and the intention of the respondent is to avoid him from the petition schedule shop room somehow. 7. The Rent Control Court considered the said rival versions and after due appreciation, held that the need urged by the respondent was bonafide. The Appellate Authority, though had not discussed the trustworthiness of the evidence on record in detail, concurred with the findings of the Rent Control Court by stating his reasons in brief. 8. 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 6 **R.C.Rev.No.167 of 2020** 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. 9. 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 7 **R.C.Rev.No.167 of 2020** 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. 10. 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 8 **R.C.Rev.No.167 of 2020** ## **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 proviso to Section 11(3) of the Act. 11. It is a proven fact that the respondent has many shop rooms, but no evidence has come out to show that any of the said rooms is vacant. When all rooms are occupied by the tenants and if the landlord wants to start a business, it is his option and prerogative to opt for one of the rooms, which 9 **R.C.Rev.No.167 of 2020** in his opinion is convenient to him. PW1 thereby claimed eviction of the petitioner, who is conducting a tailoring shop in the petition schedule shop room. The decision of the respondent cannot be interfered with by the tenant or by the court; unless it is shown that the same is smacked by malafides. The fact that he has sufficient income by way of rent is not a reason to say that the need urged by him is not bonafide. The contention that the respondent has a share in the business of his father, is not supported by any evidence. On considering the evidence as a whole, in the light of the decisions referred to above, we are of the view that the need urged by the respondent is bonafide. We find no reason to interfere with the findings of the Rent Control Court or the Appellate Authority in this regard. 12. As regards the contention of the petitioner with reference to the first or second proviso, no satisfactory evidence is let in by him. RW1 conceded that no vacant room is available with the respondent. Regarding the income being derived by the petitioner from his tailoring business in the 10 **R.C.Rev.No.167 of 2020** petition schedule shop room, no tangible evidence is produced. The oral testimony alone is insufficient to prove that fact. Regarding non-availability of other buildings in the locality also, the evidence is scandy. Although PW1 stated in court that a few vacant rooms are available on rent in that locality, no independent evidence is brought on record by the petitioner to show that such rooms are not available. In the said circumstances, we hold that the petitioner failed to prove ingredients of either the first or second proviso to Section 11(3) of the Act. 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 11 **R.C.Rev.No.167 of 2020** 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 - 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 12 **R.C.Rev.No.167 of 2020** 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. 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 findings in the judgment 13 ## **R.C.Rev.No.167 of 2020** 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 locating another room and making necessary arrangements for shifting his 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 he 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, he shall not 14 **R.C.Rev.No.167 of 2020** induct third parties into possession of the petition schedule shop room and further 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 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 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