Ganga v. Mercy

## **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 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 R.C.REV. NO. 29 OF 2020 AGAINST THE JUDGMENT DATED 27.09.2019 IN R.C.A.NO.112 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), IRINJALAKUDA AND THE ORDER DATED 14.06.2017 IN R.C.P.NO.10 OF 2016 OF THE RENT CONTROL COURT (MUNSIFF), CHALAKUDY** ## **REVISION PETITIONER:** **GANGA,** **AGED 45 YEARS, W/O.KAYIKKODAN SAJEEV, VETTIKKADU ROAD, KIZHAKKE CHALAKUDY VILLAGE, CHALAKUDY TLUK, THRISSUR DISTRICT, PIN - 680 101.** **BY ADVS. K.S.BHARATHAN SRI.ABEL ANTONY SRI.CHRISTINE MATHEW** ## **RESPONDENT:** **MERCY, AGED 61 YEARS, W/O. LATE CHIRAYIL POULOSE, VADAMA DESOM VILLAGE AND PO, CHALAKUDY TALUK, THRISSUR DISTRICT - 680 101.** **BY ADV SRI.T.N.MANOJ** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No. 29 of 2020 ## **O R D E R** ## Ajithkumar, J. Tenant is the revision petitioner. The respondent-landlord filed R.C.P No.10 of 2016 before the Rent Control Court (Munsiff), Chalakkudy, seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was allowed. The appeal preferred by the petitioner under Section 18(1)(b) of the Act as R.C.A.No.112 of 2017 was dismissed by the Rent Control Appellate Authority (Additional District Judge), Irinjalakkuda. Feeling aggrieved thereof, the petitioner filed this revision petition under Section 20 of the Act. 2. The need for which the respondent sought eviction of the petitioner is that she wanted to start business in ladies inner wear in the petition schedule shop room. The respondent is a co-owner of the shop room. She has been remaining jobless and therefore she decided to start such a business. 3. The petitioner contested the eviction petition both 3 ## R.C.Rev.No. 29 of 2020 on legal and factual grounds. It was contended that the respondent approached this Court without the consent of other co-owners. A suit for partition as O.S.No.440 of 2016 with respect to the petition schedule shop room and other properties is pending between the co-owners and for that reason the respondent has no right to claim eviction on her own. The need urged is not bonafide. She had no experience in such a business. She has been residing at a far away place. The need projected is just a ruse for eviction. The petitioner is depending for her livelihood solely from the income derived from the tea shop being conducted in the petition schedule shop room. No other alternative building is available in the locality to shift her business. On such grounds, the petitioner sought to dismiss the petition for eviction. 4. At trial, the Rent Control Court recorded oral evidence of PW1, PW2 and RW1. Exts.B1, B2, C1 and C1(a) were received in evidence. After hearing both sides, the Rent Control Court found the petition maintainable and ordered eviction under Section 11(3) of the Act. The appeal preferred 4 R.C.Rev.No. 29 of 2020 by the petitioner was unsuccessful. Thereupon, this revision petition has arisen. 5. On 04.02.2020, the revision petition was admitted and the execution proceedings were stayed for a period of one month. The order of stay was extended from time to time and is in force. 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 7. The respondent needs to start a business in ladies items for which she requires vacant possession of the petition schedule shop room. The petitioner questions maintainability of the petition for eviction stating that the respondent is only a co-owner and in view of the existing dispute between the co-owners, she cannot claim eviction on her own account. The learned counsel appearing for the petitioner pointed out that O.S.No.440 of 2016 for partition of the property inherited by the co-owners, including the respondents, is pending adjudication, and therefore, the eviction petition is premature. 5 R.C.Rev.No. 29 of 2020 It is contended that the petitioner used to pay rent to the brother of the respondent Sri.George, and the petition filed without joining Sri.George as a party is not maintainable. 8. It is an admitted fact that O.S.No.440 of 2016 was filed for partition of the property, including the petition schedule property. The property originally belonged to late Konikkara Varunny, the grandfather of the respondent, which devolved upon the respondent's father. After the death of the parents, the properties devolved upon three siblings, including the respondent. The suit is for partition of such co-ownership properties. The question is whether the respondent being a co-owner without joining other co-owners can claim eviction of the tenant. When the petitioner claims that she used to pay rent to Sri.George, who is the brother of the respondent, it has to infer that the petitioner has constant contact with him. There is no pleading or evidence to show that Sri.George or any other co-owner ever had objected to the motion by the respondent for eviction of the petitioner. The question whether a co-owner without joining other co-owners can sue for 6 R.C.Rev.No. 29 of 2020 eviction on the ground of bonafide need was considered by this Court in **Sai Service Station Ltd. v. Dileep Ganesh [2022 (1) KLT 845]** . It was held that in the absence of anything on record to show that any other co-owner has an objection, the eviction petition filed by one of the co-owner is maintainable. The respondent is admittedly a co-owner. There is nothing in evidence to show that any other co-owner has ever objected to this petition. Therefore we hold that the petition is maintainable. 9. The respondent wants to start a ladies innerwear shop in the petition schedule shop room. Several contentions were raised by the petitioner to assail the bonafides of the said need projected by the respondent. It is contended that the shop room is situated not in a place suitable to start such a business, the respondent has no previous experience in such a business, and by residing at a distant place, she is unable to conduct a business in the petition schedule shop room. The respondent as PW1 deposed in court regarding her plan to start the business. She deposed that for the last two 7 ## R.C.Rev.No. 29 of 2020 years, she had been engaged in such a business at her house. It may be noted that in order to start a business, previous experience is not a condition precedent. Nevertheless, PW1 spoke about her experience in the business. She has to come from a distant place to conduct business in the petition schedule shop room is also not a reason to doubt her bonafides. When a person has a desire and determination, such reasons can never stand in the way. Regarding the suitability of the room, on considering the area where it locates, PW2, the Commissioner, reported in Ext.C1 and deposed in court that several textile shops are functioning in the same locality. After considering the said evidence, the courts below found that the petition schedule room is suitable for such a business and the need urged by the respondent is bonafide. 10. 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 8 R.C.Rev.No. 29 of 2020 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. 11. 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 9 R.C.Rev.No. 29 of 2020 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. 12. 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 10 R.C.Rev.No. 29 of 2020 genuine one, in the absence of any materials to the contra. 13. Viewed in the light of the above principles, we are of the view that the findings of the Appellate Authority and the Rent Control Court that the need urged by the respondent is bonafide is not liable to be interfered with. 14. The petitioner is conducting a tea shop in the petition schedule shop room. The courts below stating that the petitioner failed to produce any document with respect to her income from the business, held that she failed to prove the first limb of the second proviso to Section 11(3) of the Act. There is nothing on record to show that she has any business other than the tea shop. It is a matter of prudence that a small scale tea shop owner is not obliged to maintain any statement of accounts. It cannot be expected that such a petty trader to maintain accounts of her day-to-day business on the expectation that the same would be required in this kind of a proceedings. RW1, the petitioner, categorically deposed before the court that she has been maintaining her family from the income she has been deriving from the 11 R.C.Rev.No. 29 of 2020 business in the petition schedule room. There is no reason to doubt the veracity of the said version. Therefore, on reversing the finding of the courts below, we hold that the sole income for the livelihood of the petitioner is the income she has been deriving from the petition schedule shop room. 15. Coming to the second limb of second proviso to Section 11(3) of the Act, there is enough evidence to show that several rooms are available in the locality for being taken on rent. PW2 deposed substantiating her report vide Ext.C1 that there are several vacant rooms in the same locality. The petitioner did not file any objection to Ext.C1. She during cross-examination feigned ignorance as to the availability of any such vacant room. She did not conduct any enquiry regarding that aspect. In the light of the said evidence, finding can only be that the petitioner failed to prove nonavailability of alternative accommodation in the locality. Therefore, the finding of the courts below that the petitioner is not entitled to get the benefit to second proviso to Section 11(3) of the Act, is not liable to be interfered with. 12 R.C.Rev.No. 29 of 2020 16. 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 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. 17. 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 13 R.C.Rev.No. 29 of 2020 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 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. 18. 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 14 ## R.C.Rev.No. 29 of 2020 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. 19. 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 the findings rendered by the courts below were well supported by evidence on record and could not even be said - to be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered 15 R.C.Rev.No. 29 of 2020 by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 20. In the light of the principle discussed above, the conclusion arrived by the Rent Control Court and also the Appellate Authority that the petitioner is liable to be evicted from the petition schedule shop room under Section 11(3) of the Act cannot be said illegal, irregular or improper. We are therefore not interfering with the order of eviction under the provisions of Section 20 of the Act. We, accordingly, dismiss the revision petition. 21. The learned counsel for the petitioner has made a request to afford six months' time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting her business. The learned counsel for the respondent is agreeable to grant four months’ time. 22. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the 16 ## R.C.Rev.No. 29 of 2020 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 she will surrender vacant possession of the petition schedule building to the petitioner-landlady within six months from the date of this order and that, she shall not induct third parties into possession of the petition schedule building and further she shall conduct any business in the petition schedule building 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 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 17 ## R.C.Rev.No. 29 of 2020 schedule building 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