E.C. Jose v. V. Gopalakrishnan and Others

## **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 8[TH] DAY OF AUGUST 2023 / 17TH SRAVANA, 1945 R.C.REV. NO. 116 OF 2023** **AGAINST THE JUDGMENT DATED 29.03.2023 IN R.C.A.NO.158 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (IV ADDITIONAL DISTRICT JUDGE), THRISSUR AND THE ORDER DATED 27.05.2019 IN R.CP.NO.120 OF 2016 OF THE RENT CONTROL COURT (MUNSIFF), THRISSUR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **E.C.JOSE** **AGED 52 YEARS, S/O. EMMATTY CHERIAN, 11/218, PUTHURKKARA, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680003.** **BY ADVS.** **K.R.ARUN KRISHNAN DEEPA K.RADHAKRISHNAN JISSMON A KURIAKOSE SANAL C.S** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 V.GOPALAKRISHNAN AGED 62 YEARS, S/O.VADAKOOTT MALATHI AMMA, UMALAYAM, PUTHURKKARA, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680003.** 2 R.C.Rev.No.116 of 2023 - **2 SIVADAS** **AGED 56 YEARS, S/O. VADAKOOTT MALATHI AMMA, UMALAYAM, , PUTHURKKARA, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680003.** - **3 USHAKUMARI,** **AGED 60 YEARS, D/O. VADAKOOTT MALATHI AMMA, UMALAYAM, , PUTHURKKARA, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680003.** **BY ADVS.** **R.PARTHASARATHY SEEMA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.116 of 2023 ## **O R D E R** ## P.G. Ajithkumar, J. The respondent in R.C.P.No.120 of 2016 on the files of the Rent Control Court (Munsiff), Thrissur has filed this Revision Petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”). The respondents have filed the R.C.P. They sought eviction of the petitioner under Section 11(3) of the Act. The R.C.P. was allowed as per the order dated 27.05.2019. An appeal was filed by the petitioner under Section 18 of the Act. That appeal, R.C.A.No.158 of 2019, was dismissed by the Rent Control Appellate Authority (IV Additional District Judge), Thrissur as per the judgment dated 29.03.2023. 2. When this matter came up for admission today, we have heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents in detail. 3. The petition schedule building is a residential one. It originally belonged to one Vadakkot karthiani Amma and on 4 R.C.Rev.No.116 of 2023 her death, it devolved upon Smt.Malathy Amma. She let out the building to the petitioner as per the rent agreement dated 19.06.1995. Smt.Malathy Amma expired and the building devolved upon the respondents. Respondents demanded the petitioner to surrender vacant possession of the building for the need of setting up residence of the 1[st] respondent. The petitioner resisted the petition for eviction by denying the title of the respondents to the petition schedule building and also disputing _bona fides_ of the need urged by them. The petitioner contended that he entered into an agreement for sale with Smt.Malathy Amma agreeing the sale consideration to be Rs.20,000/-. The building is in a _puramboke_ land and it was agreed that a monthly rent of Rs.500/-, which eventually was increased to Rs.750/- and to Rs.1,000/-, would be paid till Smt.Malathy Amma obtained Pattayam, upon which only the sale deed could be executed. It was further contended that the lease agreement is a forged document, which was made using the blank signed paper obtained from the petitioner. 5 R.C.Rev.No.116 of 2023 4. At the trial, the petitioner gave evidence as RW1 in order to substantiate his contention regarding denial of title and also to prove the agreement for sale mooted by him. The respondents, on the other hand, produced Exts.A1 to A6 and let in oral evidence through the 1[st] respondent as PW1. Ext.A1 is the lease agreement dated 19.06.1995. Ext.A5 are 47 money order vouchers evidencing payment of rent by the petitioner. Every such voucher contain the endorsement that the payments were towards rent. RW1 tried to explain that the said payments were on the basis of the understanding that monthly payments should be made till the sale deed is executed in terms of the so-called agreement for sale. The allegation that Ext.A1 was forged making use of signed blank paper issued by the petitioner is unsupported by any evidence. When PW1 stated substantiating Ext.A1 and it was followed by uninterrupted payment of monthly rent by the petitioner, the probable conclusion is that the petitioner got possession of the petition schedule building as a tenant, from Smt.Malathy Amma. 6 R.C.Rev.No.116 of 2023 5. The fact that Smt.Malathy Amma had title to the building cannot be disputed by the petitioner having he set forth a contention that he had entered into an agreement for sale with her for the purchase of that building along with the property appurtenant thereto. In the light of the said facts, the petitioner is estopped under Section 116 of the Indian Evidence Act, 1872 from denying title of the respondents, who are the successors in interest of Smt.Malathy Amma does not have title to the petition schedule building. 6. PW1 deposed in categorical terms regarding his need to put up residence in the petition schedule building. Nothing has come out to doubt his bona fides. The Rent Control Court as well as the Appellate Authority concurrently held that the need urged by the respondents is bona fide. When the evidence tendered by PW1 does not suffer from any inherent inconsistency, the concurrent finding of the authorities below regarding the bona fides of the need urged by the respondents cannot be interfered with. 7 R.C.Rev.No.116 of 2023 7. 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.116 of 2023 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. 8. 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 705]** bona fide 9 R.C.Rev.No.116 of 2023 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. 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. 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, 10 R.C.Rev.No.116 of 2023 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. 10. In the light of the law laid down in the aforesaid decisions, we find no reason to interfere with the finding that the respondents are entitled to get an order of eviction on the ground of bona fide need for own occupation. The building being a residential one, the second proviso to Section 11(3) of the Act has no application. The petitioner does not have a case that the respondents have no other suitable building, so as to attract the first proviso to Section 11(3) of the Act. ## 11. 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, 11 R.C.Rev.No.116 of 2023 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. 12. 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 12 R.C.Rev.No.116 of 2023 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. 13. 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. 13 R.C.Rev.No.116 of 2023 14. 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, that the respondents entitled to get an order of eviction, on the ground of illegality, irregularity or impropriety. Hence, this Revision Petition fails. We, accordingly, dismiss it. 15. The learned counsel for the petitioner has made a request to afford a reasonable time for vacating the building pointing out the difficulty in finding out another building in order to shift residence. The learned counsel for the respondent is agreeable to grant four months’ time. 16. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule building, 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 14 R.C.Rev.No.116 of 2023 surrender vacant possession of the petition schedule building to the petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building; - (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 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 building will stand cancelled automatically and the petitioners-landlords 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