Elayavoor Service Co-Operative Bank v Palliyat Khadeeja

## **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 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 R.C.REV.NO.48 OF 2022** **AGAINST THE JUDGMENT DATED 24.09.2021 IN R.C.A.NO.17 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THALASSERY AND THE ORDER DATED 23.10.2017 IN R.C.P.NO.249 OF 2016 PASSED BY THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** **ELAYAVOOR SERVICE CO-OPERATIVE BANK, REPRESENTED BY ITS SECRETARY, BUILDING NO.9/629, THAZHE CHOVVA, KANNUR, PIN – 670018.** **BY ADV C.LEENA** ## **RESPONDENT:** **PALLIYAT KHADEEJA AGED 60 YEARS, D/O MUHAMMED KUNHI, DAR UL ARFA, P.O.KOTTALI, KANNUR, PIN – 670005.** **SRI RAJESH SUKUMARAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.48 of 2022 ## **O R D E R** ## Ajithkumar, J. R.C.P.No.249 of 2016 was filed by the respondentlandlady before the Rent Control Court (Principal Munsiff), Kannur seeking eviction of the petitioner-tenant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. That petition was allowed. The appeal preferred by the petitioner before the Rent Control Appellate Authority (District Judge), Thalassery under Section 18(1)(b) of the Act was dismissed. Feeling aggrieved thereof, the petitioner filed this revision petition under Section 20 of the Act. 2. The rent control petition was filed raising the contention that the landlady-respondent, who remains unemployed, wants to start a readymade dress making unit, for which she requires the petition schedule shop room. Since she had no other building in her possession, she seeks eviction of the petitioner from the petition schedule shop room on the ground of bona fide need. 3. The petitioner filed a counter statement 3 R.C.Rev.No.48 of 2022 controverting the said claim. It was contended that the respondent, who is a Pardanashin lady, did not have any genuine need of starting such a business. Her intention is to evict the petitioner, which is a co-operative society and to let out the building for higher rent. She is in possession of several other buildings. The petition schedule building is not suitable for the projected need. The immediate reason for filing the petition for eviction is the declining of the respondent's demand to increase rent of the petition schedule building. 4. On such pleadings, the Rent Control Court held trial. Evidence of PW1 and RW1 was recorded. The Rent Control Court after appreciating the said oral testimonies, concluded that the need urged was bona fide and there was no evidence to show that the respondent has been in possession of any other vacant building. Resultantly, eviction was ordered. The challenge to the said order before the Appellate Authority failed and that resulted in filing this revision petition. 4 R.C.Rev.No.48 of 2022 5. On 11.03.2022, urgent notice on admission was ordered to the respondent. The respondent entered appearance through Counsel. 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 7. The essential contention of the petitioner is that evidence let in by the respondent is insufficient to prove that the need urged by her is genuine or bonafide. The respondent deposed as PW1 before the court that she remained unemployed, and therefore, she decided to start a readymade dress making unit in the petition schedule building. She is a pardanashin lady. She admitted that her children are grown up and are earning members, working abroad. The tenor of the cross-examination of PW1 was that she comes from an affluent family and has no background of any business, and therefore she was not in need of starting such an establishment. She explained the reasons why she wanted to start such an enterprise. It may not always be due to dire 5 R.C.Rev.No.48 of 2022 need, one desires to start a business or a like enterprise. The petition schedule building belongs to the respondent. Although it is contended that the said building is not very much suitable to house a readymade dress making unit, the said contention has no basis. Now, a Neethi Store is being conducted by the petitioner-society in the said building. In such a building, it can conveniently conduct a dressmaking unit as well. When PW1 unhesitantly asserted that she is capable of conducting such an establishment and it is her decision to accomplish the same, her intention cannot be doubted. The fact that she is paradanashin lady, is not a reason to say that she is incompetent. The very fact that she came before the court and deposed in this case is enough to hold that she can conduct such a business. 8. 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 6 R.C.Rev.No.48 of 2022 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 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 7 R.C.Rev.No.48 of 2022 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 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. 8 ## R.C.Rev.No.48 of 2022 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 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. 9 R.C.Rev.No.48 of 2022 11. Viewed in the light of the above principles of law, we are of the view that the need urged by the respondent is true, genuine and bona fide. 12. 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 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 10 R.C.Rev.No.48 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. 13. 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. 11 R.C.Rev.No.48 of 2022 14. 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. 15. The findings entered into by the courts below regarding the bona fides of the need urged by the respondent is supported by sufficient evidence. After detailed analysis of the evidence only both the authorities below entered into such a finding. In exercise of the jurisdiction under Section 20 of the Act, this Court cannot re-appreciate the evidence without even showing prima facie that the findings of the courts below are perverse. Therefore, we hold that there is no reason to interfere with the findings of the courts below. 12 R.C.Rev.No.48 of 2022 16. The learned counsel for the petitioner conceded that there is no evidence to show that the respondent has any other building in her possession. The petitioner-tenant being a cooperative society, the second proviso to Section 11(3) of the Act has no application. In such circumstances, this revision can only be dismissed. Hence, the same is dismissed. 17. The learned counsel for the petitioner has made a request to afford time till the end of this calendar year for vacating the premises pointing out the difficulty in finding out another convenient building and making necessary arrangements for shifting the Neethi Store. The learned counsel for the respondent is agreeable to grant three months’ time. 18. 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 13 R.C.Rev.No.48 of 2022 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-landlady 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 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 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 14 ## R.C.Rev.No.48 of 2022 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** dkr