Gireesh Kumar v. J. Benze

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** ## **R.C.REV. NO.65 OF 2021** **AGAINST THE JUDGMENT DATED 12.10.2020 IN R.C.A.NO.5 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE–VI), KOLLAM AND THE ORDER DATED 17.06.2017 IN RC(OP)NO.3 OF 2016 OF THE PRINCIPAL RENT CONTROL COURT (MUNSIFF), KOLLAM** ## **REVISION PETITIONER:** **GIREESH KUMAR, AGED 41 YEARS, S/O. MANIYAN PILLAI, RESIDING AT BIJU MANDIRAM, KANNIMEL, KAVANADU P.O, SAKTHIKULANGARA, KOLLAM, PIN – 691003.** ## **BY ADV HARISH GOPINATH** ## **RESPONDENT:** **J.BENZE, AGED 47 YEARS, S/O. P.M. JOHN, RESIDING AT BIJU BHAVAN, PADINJATTUMKARA MURI, VELIYAM, KOTTARAKKARA, KOLLAM – 691540.** ## **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON** **06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV. NO.65 OF 2021 2 ## **JUDGMENT** The petitioner is the respondent-tenant is R.C.(OP)No.3 of 2016 on the file of the Principal Rent Control Court (Munsiff Court), Kollam, a petition for eviction filed by the respondentlandlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenant from the petition schedule building. The bona fide need projected in the Rent Control Petition was that of the landlord to start car accessory business and service of car air conditioners of his own. The tenant entered appearance and filed counter. 2. Before the Rent Control Court, PWs.1 and 2 were examined and Exts.P1 to P7 were marked on the side of the landlord. On the side of the tenant, RW1 was examined and Exts.D1 to D5 were marked. After considering the rival contentions, the Rent Control Court, by the order dated 17.06.2017, found that the denial of title by the tenant is not bona fide; an order of eviction under Section 11(2)(b) is unwarranted; the need projected under Section 11(3) of the Act is bona fide; the first proviso to Section 11(3) of the Act is 3 R.C.REV. NO.65 OF 2021 not attracted; and that the tenant is not entitled to the protection under the 2[nd] proviso to Section 11(3) of the Act. By the order dated 17.06.2017 the Rent Control Court granted an order of eviction under Section 11(3) of the Act and the tenant was directed to put the landlord in possession of the petition schedule building, within one month from the date of that order. 3. Feeling aggrieved by the order of eviction, the tenant filed R.C.A.No.5 of 2018 before the Rent Control Appellate Authority (Additional District Judge-VI), Kollam. In that appeal, the tenant filed an interlocutory application to take out an Advocate Commission, in order to collect materials to support his contention as to non-availability of other suitable rooms in the locality, in order to shift his business. That application ended in dismissal. The original petition filed by the tenant, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, also ended in dismissal. Thereafter, the Appellate Authority, by the judgment dated 12.10.2020 dismissed R.C.A.No.5 of 2018, confirming the order of eviction granted by the Rent Control Court under Section 11(3) of the Act. 4 R.C.REV. NO.65 OF 2021 4. Challenging the judgment of the Appellate Authority dated 12.10.2020 in R.C.A.No.5 of 2018 and also the order dated 17.06.2017 of the Rent Control Court in R.C.(OP) No.3 of 2016, the tenant is before this Court in this Rent Control Revision, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 5. Heard the learned counsel for the petitioner-tenant. 6. 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 5 R.C.REV. NO.65 OF 2021 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. As per the third proviso to Section 11(3), no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. As per the fourth proviso to Section 11(3), if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. 7. 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 6 R.C.REV. NO.65 OF 2021 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. 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. 9. In the Rent Control Petition an order of eviction was sought for under Section 11(3) of the Act on the ground that the landlord is in bona fide need of the petition schedule building for starting car accessory business and service of car R.C.REV. NO.65 OF 2021 7 air conditioners of his own. The bona fide need projected in the Rent Control Petition was supported by the oral testimony of the landlord as PW1. The tenant, who is conducting automobile accessories in the petition schedule building, admitted that the landlord is also engaged in the business of automobile accessories. Though the tenant produced Exts.D3, D4 and D5 sale deeds to contend that the landlord is in ownership and possession of other buildings in the locality, the Rent Control Court and also the Appellate Authority found that in Exts.D3 and D4 the landlord is only a co-owner and in Ext.D5 the owner of that building is his father. Admittedly, PW1 is having experience in conducting car accessory business, who is conducting business in partnership with his brothers. Now he intends to start an independent business of his own in the petition schedule building. After considering the pleadings and evidence on record, the Rent Control Court and the Appellate Authority arrived at a conclusion that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. The reasoning of the Rent Control Court and that of the Appellate Authority in this regard are neither perverse nor patently 8 R.C.REV. NO.65 OF 2021 illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 10. As per the first proviso to Section 11(3) of the Act, 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. 11. In order to attract the first proviso to Section 11(3) of the Act, the tenant contended that the landlord is in possession of the first floor of the petition schedule building, which is sufficient for starting the proposed business. The Rent Control Court noticed that the bona fide need projected by the landlord is for starting car accessory business and servicing of car air conditioners in the petition schedule building. The power of attorney holder of the tenant, who was examined as RW1, admitted during cross-examination that such a business could not be conducted in the first floor of the building. The Rent Control Court taking note of the law laid down by this Court in **Kunju T.P. v. Fathima and others [ILR 2014 (3) Kerala 463]** held that the first floor of the petition schedule R.C.REV. NO.65 OF 2021 9 building will not cater the need projected in the Rent Control Petition and as such, the first proviso of Section 11 (3) of the Act is not attracted. The Rent Control Appellate Authority confirmed the said finding of the Rent Control Court. The reasoning of the authorities below are neither perverse or patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 12. As per the second proviso to Section 11(3) of the Act, 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. 13. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed 10 R.C.REV. NO.65 OF 2021 reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question R.C.REV. NO.65 OF 2021 11 whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 14. Before the Rent Control Court no materials were placed on record to show that the tenant is depending on the income derived from the business conducted in the petition schedule building for his livelihood. The tenant has not chosen to mount the box. Instead his power of attorney was examined as RW1. In the absence of any reliable materials, the Rent Control Court arrived at a conclusion that the tenant failed to plead and prove the first limb of the second proviso to Section 11(3) of the Act. Insofar as the second limb of the second proviso is concerned, except a bare statement made in R.C.REV. NO.65 OF 2021 12 the objection filed in R.C.(OP)No.3 of 2016, general suggestion put to the landlord, who was examined as PW1, and bald assertions made by RW1, the power of attorney holder of the tenant, there is nothing on record to show that there are no other buildings in the locality to shift the business conducted by the tenant in the petition schedule building. The Rent Control Court noticed that the tenant has not put any effort to enquire about the availability of other alternative buildings in the locality. Therefore the Rent control Court concluded that the tenant is not entitled to protection of the second proviso to Section 11(3) of the Act. The said finding of the Rent Control Court now stands confirmed by the Appellate Authority in its judgment dated 12.10.2020. The reasoning of the Rent Control Court and that of the Appellate Authority in this regard are neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 15. 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 R.C.REV. NO.65 OF 2021 13 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 in its discretion. 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 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 R.C.REV. NO.65 OF 2021 14 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. 17. In **T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on R.C.REV. NO.65 OF 2021 15 no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 18. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own R.C.REV. NO.65 OF 2021 16 ## conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 19. 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. R.C.REV. NO.65 OF 2021 17 20. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** 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 by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 21. Viewed in the light of the law laid in the decisions referred to supra, it cannot be said that the order of eviction passed by the Rent Control Court, which now stands confirmed by the Appellate Authority, is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently passed by the authorities below. 22. The learned counsel for the petitioner-tenant would submit that, considering the situation prevailing in the country on account of COVID-19 pandemic, the tenant may be granted R.C.REV. NO.65 OF 2021 18 at least five month's time to give vacant possession of the petition schedule building. The learned counsel would further submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule building to the respondentlandlord. 23. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned order of the Rent Control Court and the impugned judgment of the Rent Control Appellate Authority; however by granting five months’ time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondentlandlord, considering the situation prevailing in the Country on account of COVID-19 pandemic, 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 R.C.REV. NO.65 OF 2021 19 undertaking that he will surrender vacant possession of the petition schedule building to the petitioner-landlord within five 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 month, without any default; (iii) Needless to say, in the event of the respondenttenant 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 petitionerlandlord will be at liberty to proceed with the execution of the order of eviction. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** MIN