B.K. Abdul Muneer v. T.M. Kunhameena

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 ``` ``` R.C.REV.NO.139OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 22.02.2023 IN R.C.A.No.10 OF 2019 ON THE FILES OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KASARAGOD, WHICH ARISES FROM THE JUDGMENT DATED 31.01.2019 IN R.C.P.No.11 OF 2017 ON THE FILES OF COURT OF RENT CONTROLLER (PRINCIPAL MUNSIFF COURT), ``` ## **`KASARAGOD`** ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` B.K. ABDUL MUNEER AGED 50 YEARS S/O B.K. ABDULLA, RESIDING AT B.K. HOUSE, BANGOD, THALANGARA POST, THALANGARA VILLAGE, KASARAGOD TALUK AND DISTRICT, PIN - 671122 ``` ``` BY ADVS. JAWAHAR JOSE CISSY MATHEWS HAMED ABDULLA JAVAHIR SAFEER BAWA A.S. ``` ## **`RESPONDENTS/RESPONDENT/PETITIONER:`** ``` T.M. KUNHAMEENA AGED 92 YEARS W/O LATE THALANGARA ABDULLA KUNHI, RESIDING AT TALANGARA BUNGALOW, THALANGARA POST, THALANGARA VILLAGE, KASARAGOD TALUK AND DISTRICT, REPRESENTED BY HER GENERAL POWER OF ATTORNEY HOLDER, FAISAL P.K., AGED 52 YEARS, S/O LATE MOIDU P.K., RESIDING AT IKRAM, THALANGARA CLUSTER, NULLIPPADY, KASARAGOD POST, KASARAGOD TALUK AND DISTRICT, PIN - 671122 ``` ``` BY ADV K.SHIBILI NAHA ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.Rev.No.139 of 2023 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.11 of 2017 on the file of the Rent Control Court (Principal Munsiff), Kasargod, a petition filed by the respondent herein-landlady under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. The need projected in the rent control petition for seeking an order of eviction under Section 11(3) of the Act was that of the grandson of the landlady, to start a shop for conducting real estate business. The tenant entered appearance and filed counter before the Rent Control Court, opposing the order of eviction sought for. On the side of the landlady, Exts.A1 to A4 were marked and her grandson was examined as PW1. On the side of the tenant, Exts.B1 and B2 were marked and he was examined as RW1. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide, that the first proviso to Section 11(3) of the Act has no application in the facts and circumstances 3 R.C.Rev.No.139 of 2023 of the case and that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. The ground of eviction under Section 11(2)(b) of the Act was also found against the tenant. Accordingly, the Rent Control Court, by the order dated 31.01.2019, allowed R.C.P.No.11 of 2017 under Section 11(2)(b) and 11(3)(b) of the Act and directed the tenant to put the landlady in vacant possession of the petition schedule building, within the time limit specified in that order. 2. Feeling aggrieved by the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.10 of 2019 before the Rent Control Appellate Authority (District Judge), Kasargod, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 22.02.2023, thereby confirming the order of eviction granted by the Rent Control Court. A reading of that judgment would show that the challenge made before the Appellate Authority, insofar as the order of eviction under Section 11(3) of the Act is concerned, was confined against the finding of the Rent Control Court that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. The order of eviction granted under Section 11(2)(b) 4 ## R.C.Rev.No.139 of 2023 of the Act was also under challenge before the Appellate Authority. 3. Feeling aggrieved by the order of eviction concurrently passed by the Rent Control Court and the Appellate Authority under Sections 11(2)(b) and 11(3) of the Act, the petitioner is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act. 4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlady. 5. During the course of arguments, the learned counsel for the petitioner-tenant confined the challenge made in this Rent Control Revision against the finding of the Rent Control Court and the Appellate Authority that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) is bona fide. 6. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. 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 5 R.C.Rev.No.139 of 2023 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. 7. 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 6 R.C.Rev.No.139 of 2023 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. 8. In **Nalakath Saidali Haji v. Kalluparamba Musthafa and others [2015 (4) KHC 815]** , a decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in **Kizhakkayil Suhara v. Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19]** that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has considered the 7 R.C.Rev.No.139 of 2023 need put forward by the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord. 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. 8 R.C.Rev.No.139 of 2023 10. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016** **(2) KLJ 164]** , another decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the decision of the Apex Court in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** , wherein the Apex Court held that, in order to order eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in **Shiv Sarup Gupta [(1999)** **6 SCC 222]** , wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control ## Legislation. In **Abdul Salam v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, when the landlord has clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying 9 R.C.Rev.No.139 of 2023 it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, if there is admission on the part of the landlord of coming into possession of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act. 11. In **Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** , a decision relied on by the learned counsel for the petitioner-tenant, 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 10 R.C.Rev.No.139 of 2023 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). 12. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the grandson of the landlady, who was examined as PW1, to start a business in real estate in the petition schedule building. That need was substantiated by the oral testimony of PW1. One of the contentions raised by the tenant before the Rent Control Court was that in the statutory notice issued by the landlady for seeking an order of eviction under Section 11(2)(b) of the Act, it is stated that her son requires the petition schedule building, for starting a business in real estate. During trial, PW1 has explained that in the statutory notice issued for seeking eviction under Section 11(2)(b) of the Act, the need was mistakenly stated as that of the son of the landlady, instead that of her grandson. 13. After considering the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority arrived at a conclusion that the need projected in the Rent 11 R.C.Rev.No.139 of 2023 Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be contended that the reasoning of the Rent Control Court and the Appellate Authority on the above aspect is either perverse or patently illegal, warranting interference by this Court in this Rent Control Revision. 14. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per subsection (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion. ## 15. In **Rukmini Amma Saradamma v. Kallyani** 12 R.C.Rev.No.139 of 2023 **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 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 reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. ## 16. In **T. Sivasubramaniam v. Kasinath Pujari [(1999)** **7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, 13 ## R.C.Rev.No.139 of 2023 and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 17. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power 14 ## R.C.Rev.No.139 of 2023 under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not - be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist. 18. 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 15 ## R.C.Rev.No.139 of 2023 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. 19. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 20. In **Abdul Salam v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the 16 R.C.Rev.No.139 of 2023 view taken is perverse and the statutory scheme has not been kept in mind and if it requires correction, then Court can reappreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence. 21. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016** **(2) KLJ 164]** , a Division Bench of this Court held that, the High Court (in revision) is obliged to test the order of the Rent Control Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. 22. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Rent Control Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal. 17 ## R.C.Rev.No.139 of 2023 It cannot also be said that, while ordering the eviction of the tenant under Section 11(3) of the Act, the Rent Control Court or the Rent Control Appellate Authority has committed a manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act. 23. The learned counsel for the petitioner-tenant would submit that the tenant is conducting business in the petition schedule building and he may be granted at least six months’ time to vacate the premises. 24. On the above request made by the learned counsel for the tenant, the learned counsel for the respondent-landlady would submit that the landlady has no objection in this Court granting a reasonable time to the tenant for surrendering vacant possession of the petition schedule building, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default. 25. The learned counsel for the petitioner-tenant would 18 R.C.Rev.No.139 of 2023 submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule building to the landlady. 26. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and the impugned order of the Rent Control Court; however, by granting four months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondentlandlady, 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 building to the petitioner-landlady within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building and further he shall conduct any business in the petition schedule building only on the strength of a valid licence/ permission/ 19 ## R.C.Rev.No.139 of 2023 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 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 respondenttenant 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 petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN