Binu Varghese v. K.S. Mathew

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 ``` ``` RCREV. NO.30OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 21.11.2023 IN RCA NO.10/2023 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA RCP 3/2018 OF MUNSIFF COURT, MAVELIKKARA ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` BINU VARGHESE AGED 49 YEARS S/O.THOMAS VARGHESE, NOW RESIDING AT MMC/11/86 KALLADAL HOUSE, BEHIND MIDWAY AIR TRAVELS, THAZHAKKARA, MAVELIKKARA FROM CHERUPARAMBIL, THAZHAKKARA, MAVELIKARA, ALAPPUZHA DISTRICT, PIN – 690102 ``` ``` BY ADVS. R.REJI, M.V.THAMBAN THARA THAMBAN B.BIPIN ARUN BOSE JEENA A.V. THOMAS THOMAS ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` K.S.MATHEW AGED 73 YEARS S/O.K.M.ZAZHARIAH, KALLADAL HOUSE, THAZHAKKARA, MAVELIKARA ALAPPUZHA DISTRICT,, PIN - 690102 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev).No. 30 of 2024 ## **O R D E R** ## G. Girish, J. The tenant in R.C.P.No.10 of 2023 of the Rent Control Court, Mavelikkara who suffered an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘the Act’), has preferred this revision against the judgment dated 21.11.2023 of the Rent Control Appellate Authority (Additional District Judge-I), Mavelikkara which confirmed the order of the Rent Control Court in that R.C.P. 2. The respondent, a septuagenarian, wanted to get possession of his house rented out to the revision petitioner, for his own occupation as residential house. He approached the Rent Control Court seeking eviction of the revision petitioner since the revision petitioner did not care to accede to his repeated demands including registered notice to handover vacant possession of the petition schedule building and to make payment of the arrears of rent. The Rent Control Court did not accept the objections raised by the revision petitioner, who even denied the rental arrangement, and accordingly directed the revision petitioner to hand over vacant possession of the petition schedule building to the respondent on the ground of bona fide need under Section 11(3) of the Act. Though the revision petitioner approached the Rent Control Appellate 3 R.C.(Rev).No. 30 of 2024 Authority (Additional District Judge-I), Mavelikkara against the order of the Rent Control Court, Mavelikkara, he did not succeed in the appeal. It is thus that the revision petitioner has approached this Court challenging the concurrent verdicts of the Rent Control Court and Appellate Authority directing him to hand over the petition schedule building to the respondent. 3. Heard the learned counsel for the revision petitioner. 4. As already stated above, the respondent-landlord approached the Rent Control Court to have possession of the house which he had rented out to the revision petitioner, since he was in need of that building for his own occupation. According to the respondent-landlord, he wanted to accommodate his daughter and son-in-law in the house where he has been residing now, and to shift his residence to the petition schedule building which was not far away from his present residence. Braving his physical ailments and incapacity, the respondent had appeared before the Rent Control Court and adduced evidence as PW1 in support of the above requirement to have possession of the building which he had leased out to the revision petitioner. The revision petitioner, a Municipal Councillor who was expected to alleviate the sufferings of the people whom he represent, resorted to all obnoxious contentions including denial of the rental arrangement, to prevent the respondent-landlord 4 R.C.(Rev).No. 30 of 2024 residing in his ward, from getting possession of the petition schedule building. On two occasions, he remained ex parte and thereafter filed petitions to set aside the ex parte order, and thus procrastinated the proceedings to a certain extent. However, the Rent Control Court finally gave solace to the respondent by its order dated **11.04.2023** directing the revision petitioner to hand over vacant possession of the petition schedule building to the respondent. The above order was passed after a detailed evaluation of the bona fide need projected by the respondent, and also the non-applicability of provisos (1) and (2) of Section 11(3) of the Act. The Appellate Authority concurred with the findings of the Rent Control Court and rendered its judgment dated 21.11.2023 in R.C.A.No.10 of 2023 dismissing the said appeal, and directing the revision petitioner to give vacant possession of the petition schedule building to the respondent within one month. ## 5. 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 5 ## R.C.(Rev).No. 30 of 2024 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. ## 6. In **Nalakath Saidali Haji v. Kalluparamba 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. ## 7. 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. 6 R.C.(Rev).No. 30 of 2024 ## 8. **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 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). ## 9. 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 7 R.C.(Rev).No. 30 of 2024 Section 11(3) of the Act, of course, subject to the first and second provisos to the said Act. 10. In the case on hand, as already stated above, the evidence tendered by the respondent-landlord before the Rent Control Court as PW1, would leave no room for any doubt about his bona fide need to have the petition schedule building for his residential occupation since he wanted to accommodate his daughter and son-in-law in the house where he is now residing. On the other hand, the conduct of the revision petitioner who clung on to all flimsy and untenable contentions to defeat the respondent from getting possession of his house, would go to show that there was absolutely no bona fides in his case which he put forward as defence in this proceedings. 11. 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 to bring out the requisite particulars through convincing evidence, for seeking the protection of the said provisos. 12. 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** 8 R.C.(Rev).No. 30 of 2024 **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. 13. As far as the present case is concerned, it is apparent from the facts and circumstances of the case and the evidence on record, as revealed from the impugned order and judgment of the courts below, that there is no applicability for provisos (1) and (2) of Section 11(3) of the Act. 14. The discussions aforesaid would lead to the irresistible conclusion that the impugned judgment of the Rent Control Appellate Authority, which confirmed the order of the Rent Control Court, is neither perverse nor patently illegal, warranting interference in this revision. 15. At the time when our verdict in the above regard, was about to be pronounced, the learned counsel for the revision petitioner sought six months’ time to vacate the petition schedule building, stating the reason that the construction work of the house of the revision petitioner would be complete only by that time. The 9 R.C.(Rev).No. 30 of 2024 above period of time sought by the revision petitioner to vacate the petition schedule building is too long that it would definitely cause further hardships and sufferings to the respondent-landlord. However, we are inclined to grant two months’ time to the revision petitioner to hand over vacant possession of the petition schedule building to the respondent, taking into account of the time lag, which may happen in the efforts of the revision petitioner while making alternate arrangements for shifting his residence. 16. 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 two months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondent-landlord, 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 that he will surrender vacant possession of the petition schedule building to the respondent-landlord within two months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop building; 10 R.C.(Rev).No. 30 of 2024 - (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 months, 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 building will stand cancelled automatically and the respondent-landlord will be at liberty to proceed with the execution of the order of eviction. **Sd/-** **Sd/-** **G. GIRISH, JUDGE** jsr/vgd