B.S. Bhasi v. Shobha Sreedhar (Shobha Krishnaprasad)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944** **R.C.REV.NO.38 OF 2022 AGAINST THE JUDGMENT DATED 22.12.2021 IN R.C.A.NO.9 OF 2020 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-V), THIRUVANANTHAPURAM AND THE ORDER DATED 11.12.2019 IN R.C.P.NO.59 OF 2020 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF-IV), THIRUVANANTHAPURAM** ## **REVISION PETITIONER:** **B.S. BHASI, UNIVERSAL HOUSE, UNIVERSAL ROAD, BEHIND SECRETARIAT, OOTTUKUZHY, THIRUVANANTHAPURAM, THE DIRECTOR, UNIVERSAL GROUP OF INSTITUTIONS, PRESS CLUB, OOTTUKUZHY ROAD, THIRUVANTHAPURAM, PIN – 695001.** **BY ADVS. PIRAPPANCODE V.S.SUDHIR AKASH S. A.MEGHA** **V.S.VARALEKSHMI AMRITHAPRIYA.C** ## **RESPONDENT:** **SHOBHA SREEDHAR @ SHOBHA KRISHNAPRASAD** **D/O.LATE A.E. SREEDHARAN, SREEVIHAR, PALLURUTHY, COCHIN-16, REPRESENTED BY HER POWER OF ATTORNEY HOLDER & BROTHER IN LAW E.P.MADHUSOODANAN, S/O.E.ANANDAN, SANTHA VILAS, ZILLATHODI, NEW PRESS CLUB, KOZHIKODE, PIN – 673001.** **BY ADV G.S.REGHUNATH** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.38 of 2022 ## **O R D E R** Ajithkumar, J. The tenant is the revision petitioner. The respondent filed R.C.P.No.59 of 2010 before the Rent Control Court (Additional Munsiff-IV), Thiruvananthapuram, seeking eviction of the petitioner-tenant from the petition schedule building under Section 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per order dated 11.12.2019 the petition was allowed ordering eviction under Section 11(2)(b) and 11(3) of the Act. The petitioner preferred an appeal under Section 18(1)(b) of the Act before the Additional Rent Control Appellate Authority (Additional District Judge-V), Thiruvananthapuram. That appeal was dismissed. Feeling aggrieved thereof, this revision under Section 20 of the Act was filed. 2. The petition schedule building was let out to the petitioner on 01.05.1989. Initially, monthly rent was Rs.8,000/-. Later, it was increased to Rs.8,500/-. The petitioner defaulted payment of rent from June 2000 onwards. 3 R.C.Rev.No.38 of 2022 The respondent is a teacher by profession. She as well as her husband are working in Switzerland. Husband would be retiring within 2½ years. On coming back home, they want to start a tuition centre in the first and second floors of the petition schedule building and to set up their residence in the upper portion. Hence, the respondent is bona fide in need of the petition schedule building. The petitioner has acquired other buildings which are sufficient for his requirements. On such grounds, the respondent sought eviction of the petitioner. 3. The petitioner filed a counter statement setting forth the following contentions: While holding the building as a tenant, the petitioner entered into an oral agreement with the respondent in 1997 by which she agreed to sell the petition schedule building to him for a sale consideration of Rs.25 lakhs. Rs.8 lakhs was paid to the father of the respondent towards part sale consideration. As a part performance of the contract, the petitioner continued in possession of the petition scheduled 4 R.C.Rev.No.38 of 2022 building. Therefore, there is no liability for him to pay any rent. It is incorrect that the respondent proposes to come back to India. She along with her husband have permanently settled in Switzerland. The need urged is not bona fide. For those reasons, the respondent was not entitled to claim vacant possession of the petition schedule building. 4. The Rent Control Court recorded oral evidence of PWs.1 to 3 and DW1. Exts.A1 to A9, C1 and C2 were received in evidence. The Rent Control Court rejected the plea based on the agreement for sale. Further, it was found that the need urged by the respondent was bona fide and the petitioner was obliged to pay rent at the rate of Rs.8,500/- from June 2000 onwards. The Rent control Court ordered eviction on those two grounds. The Appellate Authority concurred with the said finding. 5. On 23.02.2022, this Court admitted the revision and ordered to issue notice to the respondent. 6. Heard the learned counsel for the petitioner and also the learned counsel appearing for the respondent. 5 R.C.Rev.No.38 of 2022 7. The learned counsel appearing for the petitioner raised two-pronged contentions regarding maintainability of the rent control petition; firstly, that having he been in possession of the petition schedule building in part performance of a contract for sale, he is not liable to be evicted; and secondly, that the petitioner has been conducting a Government recognised educational institution, and therefore, a proceedings for eviction is barred under Section 11(11) of the Act. ## 8. In **Safeena Salim v. P.A.Subair [2014 (4) KLT 752]** a similar question was considered by this Court. It was held, '8. The trump card plea of the tenants is that they had a contract of sale in their favour and, therefore, the landlord's right does not continue to be what it was as between the landlord and the tenants. It is submitted that, as of now, the suit for specific performance of that contract of sale is pending trial. Suffice it for us to say, that it is trite law that a contract of sale does not create any interest in immovable property. Nor does a decree or order under the Specific Relief Act directing specific performance of a contract of sale by itself amount to create an interest in immovable property either by way 6 R.C.Rev.No.38 of 2022 of charge or otherwise. It is trite law that even such a decree or order has to undergo the process of execution or enforcement through the competent Court, resulting in transfer of property, either voluntarily or by intervention of Court. It is only then that the transferee under the contract of sale can claim that the said contract has got transformed into a real right in the property. This is the law. That being so, we are unable to conceive that merely because a tenant in possession obtains a contract of sale, there could be any transmutation of the rights and the characteristics of parties for a Court to assume that the possession of a building tenant under Act 2 of 1965 should be treated as one who has been put to be in continuing possession in part performance of the contract of sale.' 9. In **Andrews V.M. v. Daisy Punnan and others** ## **[2016 (2) KHC 37 : 2016 (2) KLJ 59]** this Court held, 'It is settled law that merely because the tenant entered into an agreement for sale with the landlords is not a ground to be taken to refer the parties to Civil Court as the agreement to sell will not confer any title on the tenant and the relationship between them will continue as landlord and tenant. So, on that ground the jurisdiction of the Rent Control Court is not taken away from considering the question under Section 11 of the Act. This was so held in the decisions reported in Robert Welress v. Mammu [1985 KHC 251 : 1985 KLT 1121 : 7 R.C.Rev.No.38 of 2022 1985 KLJ 869] and Hajira Umma v. Razak [1991 KHC 488 : 1991 (2) KLT 700 : 1992 (1) KLJ 134 : ILR 1992 (1) Ker. 537] by two Single Benches of this Court which we feel is correct in law.' 10. The case of the petitioner is that as per an oral agreement, the respondent agreed to sell the petition schedule building to him and in part performance of the said contract, he was given possession of the building. In the light of the principle referred to above, even on finding that there was such an agreement for sale, the same would not absolve the petitioner from eviction under Section 11 of the Act. That apart, what Section 53A of the Transfer of Property Act, 1882 mandates is handing over possession of the property pursuant to a written contract. Unless there is a contract in writing, the vendee cannot claim benefit of Section 53A of the Transfer of Property Act. In the said circumstances, we are of the view that the contention of the petitioner is absolutely untenable. 11. The petitioner claimed that the institution he has been conducting in the petition schedule building, under the name and style 'Universal Engineering College', is a Government recognised 8 R.C.Rev.No.38 of 2022 educational institution, and therefore he is not liable to be evicted under section 11 of the Act. No evidence in that respect has been produced before the court. Of course, the petitioner as DW1 deposed in court that his institution has recognition from the Government. His self-serving oral testimony is insufficient to prove that fact. The Commissioner has reported that the first floor of the building has been occupied and some namesake activities are happening there. As held in **Issac Mathew v. G.Nirmala [2016 (1) KLT 898]** looking at the phraseologies employed in section 11(11)(ii) of the Act it is clear that the interdiction created thereunder apply only if the building was let out for use as an educational institution and the same is being used as such and the educational institution has been recognised by the Government or any other authority empowered thereunder. It is relevant to note that the tenant here is the petitioner and not the institution. In the light of the said facts and evidence, the petitioner cannot claim the benefit of Section 11(11) of the Act. Hence, the contention was also rightly turned down by the courts below. 9 R.C.Rev.No.38 of 2022 12. Rent since June, 2000 has been in arrears. On the strength of the plea that the petition schedule building has been possessed by him as part performance of the contract for sale, the petitioner contended that he is not liable to pay rent. While giving evidence, he set forth another case that he has paid Rs.24 lakhs to the parents of the respondent on the understanding that the interest thereon would be appropriated towards rent. The said version is not supported by any pleadings. There is absolutely no document with regard to that fact as well. In the view of the above evidence and circumstances, we hold that the order of eviction under Section 11(2)(b) of the Act can only be upheld and we do so. 13. The respondent gave evidence as PW1. She deposed that she was working in Switzerland as a teacher and now she and her husband are back home. Their idea is to start a tuition centre in the first and second floors of the petition schedule building and set up their residence in the fourth floor. It is beyond dispute that PW1 and her husband were abroad, doing teaching profession. The contention of the petitioner is that both 10 R.C.Rev.No.38 of 2022 of them settled in Switzerland and therefore the need urged by them is not bona fide. In the light of the definite version of PW1 as aforesaid there cannot have any doubt regarding the bona fides of the respondent in claiming vacant possession of the petition schedule shop room for such a purpose. 14. 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 11 R.C.Rev.No.38 of 2022 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. 15. 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 12 R.C.Rev.No.38 of 2022 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. 16. 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 13 R.C.Rev.No.38 of 2022 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 provisos to Section 11(3) of the Act. 17. In the light of the said legal principles, the need urged by the respondent can be said to be honest, genuine and bona fide. The Courts below considered the evidence on the point in detail and arrived at the right conclusion. We find no reason to interfere with the said finding. There is no contention for the petitioner claiming benefit of the first or second proviso to Section 11(3) of the Act. 18. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional 14 R.C.Rev.No.38 of 2022 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 re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 19. In **Hindustan Petroleum Corporation Limited** 15 R.C.Rev.No.38 of 2022 **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. 20. 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 16 R.C.Rev.No.38 of 2022 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. 21. Viewed in the light of the principle laid down in the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority which confirmed the order of the Rent Control Court directing eviction of the petitioner under Sections 11(2)(b) and 11(3) of the Act on the ground of illegality, irregularity or impropriety by invoking jurisdiction of this Court under section 20 of the Act. Hence this Revision Petition fails. We, accordingly, dismiss it. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr