CHERIYANDIKUNNUMBRAM C.H. ASHRAF v. Sareena K.P., Muhammed Mebin K.P., Fathima Shafa K.P.

## **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 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944** **RCREV. NO. 186 OF 2021** **AGAINST THE ORDER OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), KALPETTA, WAYANAD IN R.C.A.NO.26 OF 2019 DATED 29.09.2021, CONFIRMING THE ORDER OF THE RENT CONTROL COURT(MUNSIFF-MAGISTRATE), MANANTHAVADY IN R.C.P.NO.20 OF 2017 DATED 26.09.2019)** ## **REVISION PETITIONER:** **CHERIYANDIKUNNUMBRAM C.H. ASHRAF AGED 66 YEARS S/O.KHADER, CHERIYANDIKUNNUMBRAM HOUSE, KATTIKULAM POST, THIRUNELLY AMSOM, THRISSILERY DESOM, MANANTHAVADY TALUK, WAYANAD 670 645 BY ADVS. R.SUDHISH M.MANJU** ## **RESPONDENTS:** **1 SAREENA K.P W/O.K.K MOIDU, “MAKSHAL MEEN KAPPADATHIL”, CHEMBILODE VILLAGE, POST KOYYODE, KANNUR DISTRICT, KERALA- 670 621 2 MUHAMMED MEBIN K.P S/O.K.K MOIDU, “MAKSHAL MEEN KAPPADATHIL”, CHEMBILODE VILLAGE, POST KOYYODE, KANNUR DISTRICT, KERALA- 670 621 3 FATHIMA SHAFA K.P. D/O.K.K MOIDU, “MAKSHAL MEEN KAPPADATHIL”, CHEMBILODE VILLAGE, POST KOYYODE, KANNUR DISTRICT, KERALA - 670 621 BY ADVS. T.MANOJ KUMAR T.K.SANDEEP ARJUN SREEDHAR ARUN KRISHNA DHAN VEENA HARIKUMAR ALEX ABRAHAM THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.R No.186 of 2021 ## **O R D E R** ## Ajithkumar, J Tenant is the revision petitioner. Landlord filed R.C.P. No.20 of 2017 before the Rent Control Court (Munsiff), Mananthavady seeking eviction of the petitioner under Sections 11(3) and 11(4) (v) of the Kerala Buildings (Lease and Rent Control) Act, 1965. That petition was allowed, ordering eviction under Section 11(3) of the Act. The plea for eviction under 11(4)(v) of the Act was rejected. The petitioner preferred an appeal under Section 18(1) (b) of the Act before the Rent Control Appellate Authority (Additional District Court-1), Kalpetta. The appeal was dismissed. That occasioned in filing this revision petition under Section 20 of the Act. 2. On 03.01.2022, this Court admitted this Revision petition and ordered notice to the respondents. Execution of the order of eviction was stayed as per order dated 25.02.2022 for a period of three weeks. That order stands extended for one more month. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 3 R.C.R No.186 of 2021 4. The landlord who filed the rent control petition died during pendency of the appeal. His legal representatives are the respondents. Eviction was sought on the ground that the 2[nd] respondent who is the son of the original landlord wanted to start a grocery and stationery shop in the petition schedule shop room. He is a graduate, but remains unemployed. Therefore it has become inevitable for him to start a business of his own. The petitioner resisted the R.C.P by filing a counter statement. He was earlier conducting a hotel in the petition schedule shop room. It is true that the hotel remains closed for a short period. Since the landlord refused to give a consent letter, the petitioner was unable to get his D&O license renewed. Only after approaching the Ombudsman for Local Self Governments and obtaining an order, the petitioner could renew his licence to continue his business. Subsequently he closed the hotel and started jewellery in the petitioner schedule shop room. The income derived therefrom is the sole source of his livelihood. He is a cardiac patient. No other suitable building or room is available in the locality to shift his business. The need urged by the respondents is not bonafide. Other rooms are available in the possession of the respondents 4 R.C.R No.186 of 2021 which can well be used for such a business. On those grounds, the petitioner sought to dismiss the petition. 5. After considering the evidence brought on record, namely oral testimonies of PWs 1 and 2, Exts. A1 to A3, B1 to B3, the Rent Control Court found that the need urged by the respondent was bonafide and the petitioner was liable to be evicted from the petition schedule shop room. The allegation that the petitioner ceased to occupy the room without reasonable cause was turned down. The Appellate Authority considered the challenge of the petitioner against the order of eviction on the ground of bonafide need. After re-appreciating the evidence in detail, the order of eviction was confirmed by the Appellate Authority. 6. The learned counsel appearing for the petitioner would contend that original landlord Sri. K.K.Moidu was conducting a mobile phone and accessories shop in the adjoining room and as he died during pendency of the appeal, that room has now become available for the use of the 2[nd] respondent to use for the projected need. The learned counsel pointing out that subsequent event, and also highlighting that other two rooms were recently let out by the 5 R.C.R No.186 of 2021 landlord, submitted that the order of eviction, though found concurrently by both the Authorities below, is liable to be set aside. The Appellate Authority considered this aspect in paragraph No.21 of its judgment. The learned counsel appearing for the respondent, on the other hand, would submit that the reason stated by the Appellate Authority to reject the said contentions is quite sound and the finding of the Appellate Authority is not liable to be interfered with. 7. It is an admitted fact that the original landlord, PW1 was conducting a mobile phone and accessories shop in the room beside the petition schedule shop room. Eviction was sought by him on the ground that PW2, his son, is his dependent and the room is required for PW2 to start a business. When PW1 dies, an immediate inference that the room in occupation of PW1 is available for the use of his son, PW2. But it may be noted that PW2, who is the 2nd petitioner, alone is not the heir of deceased Sri. K.K.Moidu. Respondent Nos.1 and 3 are the other heirs. On the death of Sri.K.K.Moidu, the room in his possession, where a running business is accommodated devolved upon the respondents in common. It cannot be said that the said room can exclusively 6 R.C.R No.186 of 2021 be used by PW2. When Sri.K.K.Moidu initiated the eviction proceedings with a definite case was that the petition schedule shop room was to be provided to PW2 to start a business, the petitioner-tenant cannot now insist that the shop room which devolved upon the respondents in common on the death of the landlord should be made use of by PW2. It is for the landlords to decide, which among their two rooms should be used by a colandlords for his own purpose. The respondents would contend that PW2 required the petitioner schedule shop room to start his business. The petitioner therefore cannot dictate that the room, where a running business, which devolved upon the respondents in common, should be used by PW2. The view taken by the Appellate Authority in this regard is legal and supported by sufficient reason. We find no reason to interfere with that finding. 8. Both PWs 1 and 2 deposed regarding the need. Their evidence is intact. RW1, the respondent, would admit that PW2 is not employed. The learned counsel for the petitioner would point out one aspect to discard evidence of the respondents, which is that during cross examination PW2 feigned ignorance as to the location of the petition schedule shop room. Both the authorities 7 R.C.R No.186 of 2021 below considered that aspect in detail and rejected the contention of the tenant. PW2 has deposed with meticulous details as to the suitability of the room for his purpose. Evidence on record is sufficient to prove that the need urged by the respondent is bonafide. 9. 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 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 8 R.C.R No.186 of 2021 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. 10. 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.** 9 R.C.R No.186 of 2021 **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. 11. 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 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 10 R.C.R No.186 of 2021 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. 12. In the light of the proposition of law laid down in the aforesaid decisions, findings rendered by the courts below that the respondents had succeeded in establishing that they are bonafide in need of the petition schedule shop room for own occupation of PW2 cannot be interfered with on the ground of illegality, irregularity or impropriety. 13. It was contended that the landlord let out two rooms recently and that would not only tells upon his bonafides but also disentitles him from claiming eviction in view of the 1st proviso to section 11(3) of the Act. During cross examination, RW1 admitted that such two rooms were let out by the landlord before filing of this petition. The evidence on record would not show that the landlord let out the rooms anytime after arising the need, for which eviction of the petitioner from the petitioner schedule shop room, has arisen. In that situation, the contention of the petitioner is untenable. 14. Petitioner claimed benefits of the 2[nd] proviso to section 11(3) of the Act. Evidence let in by the petitioner in this respect is 11 ## R.C.R No.186 of 2021 scanty. The petitioner is conducting a jewellery in the petition schedule shop room. Nothing has been produced before court in order to show the volume of his business and the income he has been deriving from that business. Regarding non-availability of alternative buildings in the locality also no worthwhile evidence is brought on record. 15. In **Francis** v. **Sreedevi Varassiar [2003 (2) KLT 230 (FB)]** , a Full Bench of this Court held that the burden of proving both the criteria of the second proviso lies with the tenant. In **Thanuja Sunderdas** v. **Sisirkumar Raj [2008 (4) KLT 248]** , this Court again considered this aspect and declared that the burden absolutely lies on the tenant to establish the requirements for the protection contained in the second proviso to Section 11(3) of the Act. In **Poolakandi Kumaran** v. **Kulangara Veetil Mathu [2009(1) KLT 607]** this Court reiterated that the two ingredients of the second proviso are in the conjunctive, and in order that a tenant to get the benefit of the proviso, he will have to satisfy both the ingredients. In view of the aforesaid legal principle, the petitioner has the absolute burden to prove both the ingredients of the 2nd proviso to Section 11(3) of the Act, but he failed. 12 R.C.R No.186 of 2021 16. RW1 deposed in court that his sole source of income is the business in the petitioner schedule shop room. Earlier he was conducting a hotel and now a jewellery. A person conducting jewellery necessarily has to maintain records showing his income and expenditure. No such documents have been produced by the petitioner before court. Ipse dixit of the tenant, who is conducting jewellery in a tenanted premises, alone cannot be based upon to find that his sole source of income for his livelihood is the income from that business. Coming to the 2[nd] limb of the second proviso to Section 11(3), the evidence is further inadequate. PW1 deposed that several vacant rooms are available in the locality and pointed out such rooms. What RW1 stated is that he did not inquire about availability of such rooms. In the light of that evidence, it can only be found that the petitioner is not entitled to get the benefit of the 2nd proviso to Section 11(3) of the Act. In such circumstances, we refrain from interfering with findings of the courts below in this regard. 17. 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 13 ## R.C.R No.186 of 2021 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 sub-section (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 at its discretion. 18. 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 the 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 14 ## R.C.R No.186 of 2021 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. 19. 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 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 15 R.C.R No.186 of 2021 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** 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. 21. Viewed so, the concurrent findings entered into by the courts below are not liable to be interfered with in exercise of the powers of this court under section 20 of the Act. Therefore this revision petition is liable only to be dismissed. We accordingly dismiss this revision petition. 22. The learned counsel for the petitioner has made a request to afford one year's time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting his business. The learned 16 ## R.C.R No.186 of 2021 counsel for the respondent is agreeable to grant three months’ time. 23. 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 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 17 R.C.R No.186 of 2021 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** PV