Gurukkale Valappil Prasanth v. Vichithra Narangapurath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 R.C.REV.NO.49 OF 2021 AGAINST THE JUDGMENT DATED 29/02/2020 IN R.C.A.NO.153 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), THALASSERY ARISING OUT OF THE ORDER DATED 22/10/2018 IN R.C.P.NO.329 OF 2017 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **GURUKKALE VALAPPIL PRASHANTH, AGED 42 YEARS S/O. BALAKRISHNAN, REMA NIVAS, CHELORA AMSOM, THALANUR DESOM, THANKEKUNNU P.O., THAZHECHOVVA, KANNUR-670 018** **BY ADV.SMT.C.LEENA** ## **RESPONDENT/RESPONDENT/PETITIONER:** **VICHITHRA NARANGAPURATH, AGED 52 YEARS** **D/O. DAMU @ RAMU, RESIDING AT NIVEA NIVAS, KURUVA DESOM, P.O.KADALAYI, KANNUR DISTRICT-670 003** **BY ADVS.SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- R.C.R.No.49 of 2021 ## **O R D E R** ## Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.329 of 2017 on the file of the Rent Control Court (Principal Munsiff), Kannur, a petition filed by the respondent hereinlandlady under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building. The _bona fide_ need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act, is that of the landlady to conduct a tailoring shop. In the Rent Control Petition, the landlady has stated that, she is having sufficient experience and funds to start the proposed business. The tenant opposed the relief sought for in the Rent Control Petition by filing counter statement. Exts.A1 to A3 were marked on the side of the landlady and she was examined as PW1. On the side of the tenant, Exts.B1 to B9 were marked and he was examined as RW1. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected in the Rent Control Petition for seeking an -3- R.C.R.No.49 of 2021 order of eviction under Section 11(3) of the Act is _bona fide_ ; that the provisions under the first proviso to Section 11(3) of the Act has no application; and that the tenant is not entitled to protection under the second proviso to Section 11(3) of the Act. Therefore, the Rent Control Court allowed R.C.P.No.329 of 2017 and directed the tenant to give vacant possession of the petition schedule shop room to the landlady, under Section 11(3) of the Act, within one month from the date of that order. 2. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.153 of 2018 before the Rent Control Appellate Authority (Additional District Judge-II), Thalassery, invoking the provisions under Section 18(1)(b) of the Act. The said appeal ended in dismissal by the judgment dated 29.02.2020 of the Appellate Authority, thereby confirming the order of eviction granted by the Rent Control Court. 3. Challenging the judgment dated 29.02.2020 of the Rent Control Appellate Authority in R.C.A.No.153 of 2018, whereby the order of eviction granted by the Rent Control Court in the order dated 22.10.2018 in R.C.P.No.153 of 2018 stands confirmed, the tenant is before this Court in this Rent -4- R.C.R.No.49 of 2021 Control Revision, invoking the provisions under Section 20 of the Act. 4. On 19.03.2021, when this Rent Control Revision came up for admission, this Court issued notice on admission to the respondent by speed post. This Court granted an interim stay of execution of the judgment dated 29.02.2020 in R.C.A.No.153 of 2018 of the Rent Control Appellate Authority, Thalassery and the order in R.C.P.No.329 of 2017 of the Rent Control Court, Kannur in E.P.No.26 of 2021 pending before the Principal Munsiff's Court, Kannur, for a period of two weeks. The said interim order, which was extended from time to time, is still in force. 5. On 21.12.2021, when this matter came up for consideration, the learned counsel on both sides submitted that possibility of settlement of the matter in mediation can be explored. In such circumstances, both parties were directed to appear before the Nodal Officer, Ernakulam Mediation Centre in the premises of this Court, on 06.01.2022 at 10.30 a.m. 6. On 20.01.2022, when the matter came up for consideration, the learned counsel for the respondent-landlady submitted that the landlady could not appear before the -5- R.C.R.No.49 of 2021 Ernakulam Mediation Centre, on 06.01.2022. The learned counsel on both sides submitted that the parties shall appear before the Co-ordinator, Mediation Sub Centre, Kannur. Therefore, both parties were directed to appear for mediation before the Co-ordinator, Mediation Sub Centre, Kannur, on 07.02.2022 at 11.00 a.m. 7. Vide letter dated 10.02.2022, the Co-ordinator (Judge, Labour Court), Mediation Sub Centre, Kannur has informed this Court that the mediation conducted, in terms of the order of this Court dated 20.01.2022, was not successful. 8. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlady. 9. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, which now stands confirmed by the judgment of the Rent Control Appellate Authority. 10. 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 -6- R.C.R.No.49 of 2021 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 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 -7- R.C.R.No.49 of 2021 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. 12. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled -8- R.C.R.No.49 of 2021 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. 13. The _bona fide_ need projected in R.C.P.No.329 of 2017 is that of the landlady to conduct a tailoring shop. In the Rent Control Petition it is stated that the landlady has sufficient experience and funds to start the proposed business. The need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act, is substantiated by the oral testimony of the landlady, who was examined as PW1. After considering the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority rightly concluded 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 said finding of the authorities below are neither perverse nor patently illegal. It cannot also be said that, while arriving at such a finding, the authorities below have committed any material irregularity. 14. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord -9- R.C.R.No.49 of 2021 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. 15. In **M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC 355]** the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in **Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141]** , wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court -10- R.C.R.No.49 of 2021 and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question. 16. In **Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21]** the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the -11- R.C.R.No.49 of 2021 landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its nonoccupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises. 17. In **Vasantha Mallan** , relying on the law laid down by the Apex Court in **M.L. Prabhakar [(2001) 2 SCC 355]** the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his -12- R.C.R.No.49 of 2021 possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for nonoccupation of the premises for his alleged needs. 18. Insofar as the first proviso to Section 11(3) of the Act is concerned, the learned counsel for the petitionertenant, placing reliance on Exts.B1 to B3 Building Assessment Registers, would raise a contention that the landlady is having other buildings in the locality and as such, the provisions under the first proviso to Section 11(3) of the Act has application. It has come out in evidence that the landlady is only a co-owner in respect of those buildings. After analysing the evidence on record, the Rent Control Court arrived at a conclusion that the materials placed on record would not indicate that the first proviso to Section 11(3) of the Act has any -13- R.C.R.No.49 of 2021 application. In support of the said finding, the Rent Control Court has placed reliance on the law laid down by this Court in **Asher v. Hassankutty [2004 (2) KLT 446]** . After considering the evidence on record, the Rent Control Court as well as the Appellate Authority found that the first proviso to Section 11(3) of the Act has no application on the facts of the case. The said finding of the Rent Control Court and the Appellate Authority is neither perverse nor patently illegal, warranting interference. 19. 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. 20. 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 -14- R.C.R.No.49 of 2021 on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed 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 -15- R.C.R.No.49 of 2021 protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question 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. 21. Insofar as the second proviso to Section 11(3) of the Act is concerned, other than the oral testimony of the tenant as RW1, nothing could be brought on record to show that the tenant is depending for his livelihood mainly the income derived from the business conducted in the petition schedule shop room. No reliable materials were placed before the Rent Control Court to show that no other suitable rooms are available in the locality for the tenant to shift his business. -16- R.C.R.No.49 of 2021 After considering the evidence on record, the Rent Control Court as well as the Appellate Authority found that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. 22. Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 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 in its discretion. 23. 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 -17- R.C.R.No.49 of 2021 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 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. 24. 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 -18- R.C.R.No.49 of 2021 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 no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 25. 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 -19- R.C.R.No.49 of 2021 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 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 reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 26. 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 -20- R.C.R.No.49 of 2021 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. 27. 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. 28. Viewed in the light of the law laid in the decisions referred to supra, it cannot be said that the order of eviction -21- R.C.R.No.49 of 2021 granted 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 passed by the authorities below. 29. 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 given time till December, 2022 to give vacant possession of the petition schedule shop room. 30. On the above request made by the learned counsel for the petitioner-tenant, the learned counsel for the respondent-landlady would submit that a reasonable period of three months may be granted to the tenant for giving vacant possession of the petition schedule shop room, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default. 31. The learned counsel for the tenant would submit that the tenant is prepared to clear the entire dues towards -22- ## R.C.R.No.49 of 2021 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 shop room to the landlady. 32. In such circumstances, this Rent Control Revision 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 seven months time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlady, 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 undertaking that he will surrender vacant possession of the petition schedule shop room to the petitionerlandlady 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; R.C.R.No.49 of 2021 -23- - (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 that, 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 shop room will stand cancelled automatically and the petitionerlandlady will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/25/3