D. Somanatha Shenoy v. Choovatta Valappil Ramesh Kumar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** **R.C.REV. NO. 177 OF 2021** **AGAINST THE JUDGMENT DATED 18.03.2021 IN R.C.A.NO.141 OF 2011 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERY AND THE ORDER DATED 30.06.2011 IN R.C.P.NO.17 OF 2010 OF THE RENT CONTROL COURT (MUNSIFF), PAYYANNUR** ## **REVISION PETITIONER:** **D.SOMANATHA SHENOY AGED 65 YEARS, S/O. DEVADAS, PAYYANNUR AMSOM, KOKKANISSERI DESOM, KANNUR DISTRICT, PO PAYYANNUR-670 307.** **BY ADVS. GEORGE MATHEWS M.M.ANTO** ## **RESPONDENTS:** - **1 CHOOVATTA VALAPPIL RAMESH KUMAR AGED 56 YEARS, S/O. KELU, PAYYANUR AMSOM, KOKKANISSERI DESOM, KANNUR DISTRICT, PO PAYYANUR 670 307.** - **2 SOBHA SHENOY,** **AGED 59 YEARS, D/O. DEVADAS, PAYYANUR AMSOM, KOKKANISSERI DESOM, NOW RESIDING AT FLAT NO.107, B BLOCK, ANMOL HARI GURU APARTMENTS, NEW FIELD STREET, MANGALORE-575 001.** - **3 GEETHA SHENOY, AGED 57 YEARS, D/O. DEVADAS, PAYYANUR AMSOM, KOKKANISSERI DESOM, NOW RESIDING AT FLAT NO.140, IST FLOOR, A-1 BLOCK, SUMADHURAS MATHRUSHREE RESIDENCY, THINDLU, VIDYARANAYAPURA POST, BANGALORE 560 097.** 2 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 - **4 NARASIMHA SHENOY,** **AGED 55 YEARS, S/O. DEVADAS, PAYYANUR AMSOM, KOKKANISSERI DESOM, NOW RESIDING AT FLAT NO.C2, IIIRD BLOCK, 'CASAGRANDE' 13/14, ELLAIAMMAN KOIL STREET, ADAYAR, CHENNAI-600 020.** - **5 LATA SHENOY,** **AGED 53 YEARS, D/O. DEVADAS, PAYYANUR AMSOM, KOKKANISSERI DESOM, 'ANUGRAHA' HOUSE NO.129, CANARA BANK LAYOUT, VIRUPAKSHAPURA, BANGALORE-560 097.** **BY ADVS.** **R1 BY M.V. AMARESAN (CAVEATOR)** **R1 BY MAHESH V RAMAKRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 30.05.2022, ALONG WITH R.C.Rev.35 OF 2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** **R.C.REV. NO. 35 OF 2022** **AGAINST THE JUDGMENT DATED 18.03.2021 IN R.C.A.NO.139 OF 2011 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERY AND THE ORDER DATED 30.06.2011 IN R.C.P.NO.18 OF 2010 OF THE RENT CONTROL COURT (MUNSIFF), PAYYANNUR** ## **REVISION PETITIONER/S:** - **1 BALACHANDRAN V P** **AGED 66 YEARS, S/O. SEKHARA PODUVAL, VELLUR AMSOM DESOM, P.O VELLUR, NOW RESIDING AT VIRADAM NEAR KRISHNA OIL MILL, EDAT, P.O EDAT, KANNUR DISTRICT-670 327.** - **2 SASIDHARAN,** **AGED 66 YEARS, S/O. SEKHARA PODUVAL, VELLUR AMSOM DESOM, P.O VELLUR, NOW RESIDING AT ANIDIL HOUSE, CHEMBRAKANAM, P.O THIMIRI, KASARAGOD DISTRICT-671 313.** **BY ADVS.** - **GEORGE MATHEWS M.M.ANTO** ## **RESPONDENTS:** - **1 CHOOVATTA VALAPPIL RAMESH KUMAR S/O. KELU, PAYYANUR AMSOM, KOKKANISSERI DESOM, KANNUR DISTRICT, P.O PAYYANUR - 670 307.** 4 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 - **2 NIRMALA** **AGED 56 YEARS, D/O. K.V SEKHARA PODUVAL, VELLUR AMSOM DESOM, KANNUR DISTRICT, P.O VELLUR - 670 307.** - **3 SOBHANA AGED 54 YEARS, D/O. K.V SEKHARA PODUVAL, VELLUR AMSOM DESOM, KANNUR DISTRICT, P.O VELLUR - 670 307.** - **4 VEENA AGED 52 YEARS, D/O. K.V SEKHARA PODUVAL, VELLUR AMSOM DESOM, KANNUR DISTRICT, P.O VELLUR-670 307.** - **5 SHAMALA C.K** - **AGED 60 YEARS, W/O. LATE V.P SATHEESAN, VINOBHA NAGAR, SOORYA LAY OUT, SHIMOGA, KARNATAKA-577 201.** - **6 SUDEEP,** - **AGED 33 YEARS, S/O. LATE V.P SATHEESAN, VINOBHA NAGAR, SOORYA LAY OUT, SHIMOGA, KARNATAKA-577 201.** - **7 SHILPA,** - **AGED 30 YEARS, D/O. LATE V.P SATHEESAN, VINOBHA NAGAR, SOORYA LAY OUT, SHIMOGA, KARNATAKA-577 201.** - **R1 BY ADV MAHESH V RAMAKRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 30.05.2022, ALONG WITH R.C.Rev.177 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 ## **O R D E R** ## Ajithkumar, J. The 1[st] respondent is the owner of the petition schedule shop rooms involved in R.C.P.Nos.17 and 18 of 2010 on the files of Rent Control Court (Munsiff), Payyannur. He filed the said Rent Control Petitions against the respective tenants seeking eviction. Grounds for eviction in R.C.P.No.17 of 2010 were under Sections 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction of tenants in R.C.P.No.18 of 2010 was claimed on the grounds under Sections 11(3), 11(4)(iii) and 11(4)(v) of the Act. The Rent Control Court dismissed both the Rent Control Petitions. The 1[st] respondent preferred appeals under Section 18(1)(b) of the Act, R.C.A.Nos.139 and 141 of 2011 before the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery. The appeals were allowed in part ordering eviction of the tenants under Section 11(3) of the Act. The 1[st] respondent in R.C.P.No.17 of 2020 filed R.C.Rev.No.35 of 2020 and respondents 2 and 3 in R.C.P.No.18 of 2010 filed R.C.Rev. No.35 of 2022, under Section 20 of the Act. 6 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 2. These Revisions were admitted and Sri.Mahesh V.Ramakrishnan entered appearance for the 1[st] respondent in both the cases. Since common issues are involved, both these revisions are disposed of by this common order. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the 1[st] respondent. 4. The order of eviction of the Appellate Authority as per the common judgment dated 18.03.2021, under Section 11(3) of the Act is assailed by the respective tenants in these Revisions. Although other grounds were also urged by the 1[st] respondent in both the cases, the same was declined and hence what survives for consideration is only legality, regularity and propriety of the order of eviction under Section 11(3) of the Act. The 1[st] respondent claims vacant possession of the petition schedule shop rooms saying that after returning from abroad in 2009, he remains unemployed and therefore he wants to start a business in making and selling of gold ornaments in the petition schedule shop rooms. 7 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 Contending that he has no other suitable room which can be used for the purpose, eviction on the ground of bona fide need for his own occupation was sought. 5. The said claim was resisted by the petitionerstenants on various grounds. It was contended that the 1[st] respondent still has a business abroad and real estate business here and as such, there is no requirement for him to start a business. The petition schedule shop rooms are part of an old tiled building, where a jewellery business is practically impossible. The 1[st] respondent entered into an agreement for the sale of the petition schedule shop rooms to one Sri.Hamsa, who is having a building behind and the object of his purchasing these rooms is to provide a pathway to his building. The 1[st] respondent has in his possession many other rooms. The tenants lastly had contended that they are entitled to get the benefit of the second proviso to Section 11(3) of the Act. 6. The Rent Control Court was very apprehensive about the case of 1[st] respondent as regards the need 8 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 projected by him. The Rent Control Court arrived at a finding that in the light dilly-dally attitude of PW1, the 1[st] respondent, regarding his entering into an agreement to sell the petition schedule shop rooms to Sri.Hamsa his bona fides in claiming eviction of the petitioners was doubtful. The building being an old one, and even after maintenance of a serious nature, the petition schedule shop rooms could not be used to accommodate a jewellery business was another reason taken into account by the Rent Control Court to reject the claim for eviction. 7. The Appellate Authority had a serious deliberation on the evidence on record and reached the conclusion that such aspects highlighted by the Rent Control Court are in fact not sufficient to doubt the genuineness of the claim of the 1[st] respondent. The Appellate Authority held that the so-called agreement was not with respect to the petition schedule shop rooms and even on taking that the same relates to the petition schedule shop rooms, that is not a reason to doubt the need urged by the 1[st] respondent. It was observed that 9 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 such an agreement was said to be entered into so many years ago and in the absence of taking any steps by Sri.Hamsa, for enforcement of that agreement, the definite version of PW1 that he did not have any intention to fructify the said agreement can only be believed. 8. Section 11 of the Act deals with the 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 10 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 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 the principle laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** that 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 11 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 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. 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 **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 12 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 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 to 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. 11. The 1[st] petitioner in R.C.Rev.No.35 of 2022 is RW1. The petitioner in R.C.Rev.No.177 of 2021 is RW2. Both of them admitted that the 1[st] respondent-landlord belongs to the goldsmith community and he had a jewellery business abroad. Of course, they asserted that the 1[st] respondent is still running the business abroad and on that premises, his passport was called for. Albeit making such an assertion, they admitted the fact that the 1[st] respondent has been at home since 2009. If the oral testimony of PW1 is considered in the light of the said evidence and also the 13 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 attending circumstances, it can only be said that the need urged by him is an honest and sincere outcome of his desire. 12. The petition schedule shop rooms are tiled ones. These rooms are part of a larger building and as can be seen from the report of the Commissioner and also other evidence that one of the adjoining rooms is dilapidated and lost its roof. Being it an old building, and lack of sufficient security accommodating a jewellery business there is said to be quite improbable. On this matter, there is no scope for any serious deliberation. When a landlord wants to house his business, in his own building, whatever be its nature, it is his concern alone and not for the tenants to dictate. It is true if there is any statutory prohibition or total improbability the intention to put forward such a case shall be doubted. In the petition schedule shop rooms, the petitioners are conducting business. They are stalking fairly a good volume of commodities there for the purpose of their business. As such, their contention that a business in making and selling gold ornaments is not possible there even after carrying out necessary repairs, cannot be accepted. 14 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 13. The contention of the petitioners that the 1[st] respondent entered into an agreement with one Sri.Hamsa for sale of the petition schedule shop rooms was turned down by the Appellate Authority. The reasons assigned by the Appellate Authority for it are quite sound and logical. We do not find any reason to find fault with the Appellate Authority in that aspect as well. Regarding the experience and ability of the 1[st] respondent to start such a business, there can be no doubt. In the said circumstances, we are of the view that the finding of the Appellate Authority that the need urged by the 1[st] respondent for getting vacant possession of the petition schedule shop rooms is bona fide does not suffer from any illegality, impropriety or irregularity. 14. The plea of the petitioners that the 1[st] respondent has other rooms, which can be used for the purpose projected by him is not supported by any evidence. Although it was shown that a room on the eastern side of the petition schedule shop rooms is in his possession, it has come out in evidence that the said room is quite unsuitable. That room is 15 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 totally in a dilapidated condition having no roof. Therefore, the availability of such a room in the possession of the 1[st] respondent was rightly held to be not a reason to invoke the provisions of the first proviso to Section 11(3) of the Act. 15. 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. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003 (2) KLT 230]** held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 16. The petitioner in R.C.Rev.No.177 of 2021 is holding the petition schedule shop room in exclusion of other legal 16 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 heirs of the original tenant Sri.Sekhara Poduval. His claim is that after the death of the original tenant, a partition was effected, as per which the petition schedule shop room was allotted to his wife and she, in turn, bequeathed the room in favour of the petitioner. His contention is that he is using the said room for stocking stationery items in connection with his distribution business, and therefore, the same is inevitable for carrying on his business. He is RW2. His oral testimony alone is available regarding the income he derives from his business. How far the petition schedule shop room is inevitable for the continuance of his business and also can he do his business even without this room, etc. are also not attempted to be proved. So, there is a total lack of evidence to prove that he is depending for his livelihood on the income being derived from the petition schedule shop room. 17. The petitioners in R.C.Rev.No.35 of 2022, who are respondents 2 and 3 in R.C.P.No.18 of 2010, claim that they are tenants in occupation of the petition schedule shop rooms. It is their contention that they are doing business in the 17 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 distribution of tea, Dinesh beedi, etc. and the room is absolutely necessary for the continuance of their business. The evidence in order to prove that the income they generate from the business activities in the petition schedule shop room is their sole source of their livelihood is the oral testimony of RW1 alone. A few documents were produced by them, but no such documents have any connection with the volume of business or the income they are getting from the petition schedule shop room. Therefore, the evidence let in by these petitioners also is insufficient to prove the first limb of the second proviso to Section 11(3) of the Act. 18. After analysing the evidence on record, the Appellate Authority held that non-availability of alternative buildings in the locality has not been proved by the petitioners. The burden to prove both limbs of the second proviso to Section 11(3) of the Act is undoubtedly on the petitioners. No reason, either legal or factual, is pointed out by the learned counsel appearing for the petitioners to dispel the finding of the Appellate Authority that the petitioners 18 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 failed to prove ingredients of the second proviso. Hence, we are of the view that the petitioners are not entitled to the benefit of the second proviso to Section 11(3) of the Act. ## 19. 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 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 19 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 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. 20. 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 confined to find out legality, regularity and propriety of the order impugned before it. 20 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 21. 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. 22. In the light of the principles of law laid down above, this Court can exercise the jurisdiction under Section 20 of the Act only to a very limited extent. In the exercise of such jurisdiction, we find no reason, after an anxious consideration of the material on record, to unsettle the findings of the Appellate Authority leading to the order of eviction under Section 11(3) of the Act. Therefore, we dismiss these revision petitions. 23. The learned counsel for the petitioners has made a 21 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 request to afford nine months' time for vacating the premises in both the cases pointing out the difficulty in finding out another room and making necessary arrangements for shifting their business. The learned counsel for the 1[st] respondent is agreeable to grant six months’ time. 24. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop rooms, subject to the following conditions: - (i) The respondents-tenants in the respective Rent Control Petitions shall file an affidavits 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 they will surrender vacant possession of the petition schedule shop rooms to the petitioner-landlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; 22 R.C.Rev.No.177 of 2021 & R.C.Rev.No.35 of 2022 - (ii) The respondents-tenants in the Rent Control Petitions 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 respondents-tenants in the Rent Control Petitions 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 rooms 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