Devayani and Others v. Nusaiba Beevi

## **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 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943** **R.C.REV.NO.51 OF 2022** **AGAINST THE JUDGMENT DATED 07.01.2022 IN R.C.A.NO.20 OF 2018 OF THE RENT COURT APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-VI), KOLLAM AND THE ORDER DATED 22.05.2018 IN R.C.(OP) NO.1 OF 2022 OF THE RENT CONTROL COURT (MUNSIFF), PUNALUR** ## **REVISION PETITIONER:** **1 DEVAYANI, AGED 80 YEARS, W/O. MADHAVAN NAIR, MADHAVA VILAS VEEDU, KARAVALOOR VILLAGE, PATHANAPARUAM TALUK - 691 333, FROM THEKKAVILA VEEDU, EDAKKADU, THOLICODE, PUNALUR VILLAGE AND MURI, PATHANAPURAM TALUK.** **2 ASOK KUMAR, AGED 55 YEARS, S/O. MADHAVAN NAIR, MADHAVA VILAS VEEDU, KARAVALOOR VILLAGE, PATHANAPARUAM TALUK - 691 333, FROM THEKKAVILA VEEDU, EDAKKADU, THOLICODE, PUNALUR VILLAGE AND MURI, PATHANAPURAM TALUK.** - **3 SASIDHARAN, AGED 60 YEARS, S/O. MADHAVAN NAIR,** **SYAM NIVAS, KOTTAMKARA, MEKON, CHANDANATHOPPU P.O., KOLLAM TALUK - 691 014, FROM THEKKAVILA VEEDU, EDAKKADU, THOLICODU, PUNALUR VILLAGE.** **4 SHEEJA, AGED 50 YEARS, D/O. MADHAVAN NAIR, MADHAVA VILAS VEEDU, MATHRA MURI, KARAVALOOR VILLAGE, PATHANAPARUAM TALUK - 691 333, FROM EDAKKADU, THEKKAVILA VEEDU, THOLICODE, PUNALUR VILLAGE, PATHANAPURAM TALUK.** 2 R.C.Rev.No.51 of 2022 - **5 PRASAD,** **AGED 52 YEARS, S/O. MADHAVAN NAIR, MADHAVA VILAS VEEDU, MATHRA MURI, KARAVALOOR VILLAGE, PATHANAPARUAM TALUK-691333, FROM EDAKKADU THEKKAVILA VEEDU, THOLICODE, PUNALUR VILLAGE, PATHANAPURAM TALUK.** - **6 PRADEEP, AGED 48 YEARS, S/O. MADHAVAN NAIR, MADHAVA VILAS VEEDU, MATHRA MURI, KARAVALOOR VILLAGE, PATHANAPARUAM TALUK-691333, FROM EDAKKADU THEKKAVILA VEEDU, THOLICODE, PUNALUR VILLAGE, PATHANAPURAM TALUK.** - **7 SREELEKHA,** **AGED 46 YEARS, D/O. MADHAVAN NAIR,** - **MADHAVA VILAS VEEDU, MATHRA MURI, KARAVALOOR VILLAGE, PATHANAPARUAM TALUK-691333, FROM EDAKKADU THEKKAVILA VEEDU, THOLICODE, PUNALUR VILLAGE, PATHANAPURAM TALUK.** **BY ADVS. AJAYA KUMAR. G M.JAYAKRISHNAN** ## **RESPONDENT:** **NUSAIBA BEEVI** **AGED 72 YEARS, D/O. SHAUBANATHU ASHIYANA, FROM VELLIMOOTTIL VEEDU, PUNALUR MURI AND VILLAGE, PATHANAPURAM TALUK - 695 305.** **BY ADV V.PREMCHAND (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.51 of 2022 ## **O R D E R** ## Ajithkumar, J. R.C.(OP) No.1 of 2012 was filed by the respondent before the Rent Control Court (Munsiff), Punalur, seeking eviction of the petitioners-tenants from the petition schedule shop room under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered by the Rent Control Court. The order was challenged by the petitioners before the Rent Control Appellate Authority (Additional District Judge-VI), Kollam by filing R.C.A.No.20 of 2018 under Section 18(1)(b) of the Act. That appeal failed. Feeling aggrieved thereof, this revision petition under Section 20 of the Act has been filed by the petitioner. 2. Original tenant Sri.Madhavan Nair died. He was running a barber shop in the petition schedule shop room. After his death, the 2[nd] petitioner continued the shop. The respondent is a retired Government servant. She wants to start a business in parda for which she requires the petition schedule shop room. She is not in possession of any other 4 R.C.Rev.No.51 of 2022 building or room suitable for the said purpose. Rent mutually agreed for the petition schedule shop room is Rs.500/- per month. The petitioners defaulted payment of rent from 01.01.2008 onwards. On the basis of those contentions, the respondent sought eviction. 3. The petitioners have filed a counter statement. It is their contention that the respondent does not have any genuine intention to start such a business. The petitioners 1 and 2 are depending for their livelihood solely on the income derived from the petition schedule shop room. No other suitable room or building is available in the locality for shifting the shop. It is incorrect that the petitioners defaulted payment of rent purposefully. Since the respondent refused to accept the rent, there occurred arrears of rent. 4. The Rent Control Court recorded oral evidence of PWs.1 and 2 and CPWs.1 to 4. Documentary evidence consists of Exts.A1 to A9, B1 to B5 and C1 series. After evaluating the evidence on record, the Rent Control Court ordered eviction on both the grounds. The Appellate Authority concurred with 5 R.C.Rev.No.51 of 2022 the findings of the Rent Control Court. Such concurrent findings are challenged by the petitioner in this revision. 5. Today, when the matter came up for admission, we heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent-caveator in detail. 6. The learned counsel appearing for the petitioner would contend that the tenancy commenced in 1984 and after the death of the original tenant Sri.Madhavan Nair, the 2[nd] petitioner has been conducting the barber shop in the petition schedule shop room. Considering the nature of the business, an order of eviction is quite unjust. Regarding the bona fides of the respondent, it has been submitted that being an aged lady, having no experience in business, the need projected by the respondent is not a bona fide one. The shop room being a small one, there is no convenience for accommodating a parda shop and in that perspective also, the need cannot be said to be bona fide. It is also contended that the evidence let in by the respondent is insufficient to prove the need to be bona fide. 6 R.C.Rev.No.51 of 2022 7. On the ground of arrears of rent also eviction was ordered. The learned Counsel for the petitioner would submit that entire arrears was already deposited during the pendency of the proceedings. That fact is not controverted by the opposite side. In the light of the provisions of Section 11(2)(c) of the Act an order of eviction on the ground of arrears of rent is only a tentative one and on deposit of the arrears, that order would not survive any further requiring us to consider its vires. 8. Both the Courts considered the oral testimony of PW1, the landlady, in detail. After a thread-bare analysis of her oral testimony, both the courts found that the need projected by her was true, honest and genuine. She intends to start such a business, after her retirement. Her decision that without spending time sitting idle, to start a business of her own during her retirement life, cannot be said to be unwise or irrational. When she owns a shop room and she has the ability and genuine desire to conduct such a business, the bona fides of the need urged by her cannot be doubted. 7 R.C.Rev.No.51 of 2022 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 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 8 R.C.Rev.No.51 of 2022 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. Pooran Lal [(2001) 5 SCC** 9 ## R.C.Rev.No.51 of 2022 **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 10 R.C.Rev.No.51 of 2022 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. 12. In view of the above legal principles, it is not expected that this Court re-appreciates the evidence, especially when the Appellate Authority, being the first appellate court, has considered and marshalled the entire evidence in great detail and confirmed the finding of the Rent Control Court. 13. In support of the contention that the respondent has other buildings in her possession for being used for the projected need, no evidence has come out. The petitioners, however, adduced evidence to claim benefit of the second proviso to Section 11(3) of the Act. 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 11 R.C.Rev.No.51 of 2022 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. 14. CPW1, the 2[nd] petitioner, deposed that it was he, who has been running the barber shop in the petition schedule shop room now. He deposed that his only income to eke out his livelihood is from the barber shop in the petition schedule shop room. Of course, no other evidence with respect to that aspect has come on record. Ordinary rule that documents reflecting income being derived by the tenant should be produced in order to prove that that income is the sole source of his livelihood, is not applicable to this case. It has come out in evidence that the 2[nd] petitioner is conducting 12 R.C.Rev.No.51 of 2022 a barber shop in the petition schedule shop room and it is his full-time employment. It is not expected to maintain statements of accounts or such other documents in a barber shop, being run by an individual. His oral testimony alone is the possible evidence with respect to the income from his business. We are of the view that his testimony is trustworthy and it can be found that he is depending for his livelihood solely on the income from the barber shop in the petition schedule shop. 15. The Commissioner, CPW3, reported vide Ext.C1(b) regarding the vacant buildings available in the locality. There is assertion from the part of the respondent also that there are vacant rooms available in that area for being taken on rent. But the petitioners did not adduce any reliable evidence to show that no vacant rooms are available, which can be put to use by the 2[nd] petitioner. Therefore, the second limb of the second proviso to Section 11(3) of the Act is not proved by the petitioner. The view taken by the courts below in this respect cannot be said to be illegal, irregular or perverse. 13 R.C.Rev.No.51 of 2022 16. 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 reappreciated 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 reappreciating 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. 14 R.C.Rev.No.51 of 2022 17. 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. 18. 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 15 R.C.Rev.No.51 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. 19. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 20. The learned counsel for the petitioners has made a request to afford one year time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his barber shop. The learned counsel for the respondent is agreeable to grant six months’ time. 21. 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 16 ## R.C.Rev.No.51 of 2022 following conditions: - (i) The respondents-tenants 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 they will surrender vacant possession of the petition schedule shop room to the petitioner-landlady within seven months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop room and further they 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 respondents-tenants 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 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 Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of 17 R.C.Rev.No.51 of 2022 the petition schedule shop room will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. **(iv)** **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr