Hajirmalayil Ammad v. Janaki P.K. and Deepa P.K.

## **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 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** **R.C.REV.NO. 134 OF 2022** **AGAINST THE JUDGMENT DATED 08.02.2022 IN R.C.A.NO.72 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VATAKARA AND THE ORDER DATED 29.02.2020 IN R.C.P.NO.47 OF 2018 OF THE RENT CONTROL COURT (MUNSIFF), VATAKARA** ## **REVISION PETITIONER:** **HAJIRMALAYIL AMMAD,** **AGED 76 YEARS, S/O ABDULLA, KULANGARAKANDI HOUSE, PALAYAD NADA, PUTHUPANAM PO, VATAKARA TALUK, KOZHIIKODE DT., PIN – 673105.** **BY ADV ZUBAIR PULIKKOOL** ## **RESPONDENTS:** **1 JANAKI P.K., AGED 72 YEARS, W/O LATE KARAKETEENDAVIA NANU, SWASTHAM, RESIDIDNG AT PADINHARE KANHAVALAPPIL HOUSE, P.O. PUTHUPPANAM, NADAKKUTHAZHE VILLIAGE, VATAKARA TALUK, KOZHIIKODE, PIN – 673105. 2 DEEPA P.K., AGED 46 YEARS, W/O SATHYAN, SWASTHAM CHALIL HOUSE, P.O. MUCHUKUNNU, MOODADI VILLAGE, KOZHIIKODE DT., PIN – 673307.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.134 of 2022 ## **O R D E R** ## Ajithkumar, J. The petitioner is the tenant. The respondents-landladies filed R.C.P.No.47 of 2008 before the Rent Control Court (Munsiff), Vatakara seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per order dated 29.02.2020, the Rent Control Court ordered eviction. The petitioner filed an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge), Vatakara. The appeal was dismissed. The petitioner therefore filed this revision under Section 20 of the Act. 2. When this matter came up for admission today, we heard the learned counsel appearing for the petitioner. 3. The respondents sought eviction of the petitioner from the petition schedule shop room on the ground of bona fide need for own occupation stating that the 2[nd] respondent wants to start a tailoring shop cum outlet for sale of churidar materials. 3 R.C.Rev.No.134 of 2022 4. The tenant filed a counter statement contending that the need urged by the respondent was not bona fide. There was no need or necessity for the 2[nd] respondent to conduct a tailoring shop or a business. The petitioner has been depending for his livelihood on the income derived from the business of dried coconut kernel in the petition schedule shop room. There is no other suitable room or building available in the locality to shift that business. 5. Evidence in the case comprises oral testimonies of PWs.1 to 3, RW1, Exts.A1 to A4, B1 to B5 and X1. 6. The learned counsel appearing for the petitioners would contend that the finding of the courts below that the need urged by the respondent was honest and bona fide, is not on the basis of any reliable evidence. Also, it is contended that the second proviso to Section 11(3) of the Act should have been found in favour of the petitioners. The legal contention raised by the petitioner is that since rent was fixed as Rs. 825/- in 2016 by mutual consent, he is entitled for immunity from eviction for a period of five years in the light of 4 R.C.Rev.No.134 of 2022 the decision in **Mohammad Ahmad and another v. Atma Ram Chauhan and others [(2011) 7 SCC 755]** . 7. The protection from eviction entitled by a tenant as per the decision of the Apex Court in **Mohammad Ahmad** (supra) is for a period of five years from the date of fixation of the fair rent by mutual consent. PWs.2 and 3 are the tenants in the neighbouring shop rooms. They stated that they are paying rent at the rate of Rs.8,000/- and Rs.7,000/respectively. RW1, the petitioner, admitted that the rooms in occupation of RWs.2 and 3 are similar to the petition schedule shop room. In view of that matter, it cannot be said that the monthly rent of Rs. 825/- being paid by the petitioner is fair or prevailing market rent. Hence, the petitioners cannot be heard to contend that he is entitled to the benefit of the decision in **Mohammad Ahmad** . 8. The bona fides of the need urged by the respondent was assailed by the petitioners contending that he has no necessity to start a tailoring shop, especially when it is seen from Ext.A3 that the 2[nd] respondent is already a member 5 R.C.Rev.No.134 of 2022 of Kerala Tailoring Workers' Welfare Fund Board. The 2[nd] respondent deposed in court as PW1 that she remained jobless and wanted to start a tailoring shop along with business in churidar materials. The fact that she is a member Kerala Tailoring Workers' Welfare Fund Board, which is an undisputed fact, would substantiate that she put forth the need with bona fides. She has enough experience and therefore, she can successfully conduct such a business. 9. 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 6 R.C.Rev.No.134 of 2022 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. 10. 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 7 R.C.Rev.No.134 of 2022 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. 11. 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** 8 R.C.Rev.No.134 of 2022 **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 to 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. 12. In view of the principle of law laid down by the Apex Court as well as this Court in the decisions referred to above, evidence let in by the respondents well justifies that the need was urged by them with utmost honesty and sincerity. There is absolutely no reason to interfere with the findings of the courts below in that regard. 9 R.C.Rev.No.134 of 2022 13. The petitioner raised a contention that the respondents have several other rooms in their possession, and therefore, the first proviso to Section 11(3) of the Act stands in the way of their claiming eviction. The contention of the respondents, per contra, is that they do not have any room of their own. There is absolutely no evidence to show that the respondents own any room. In such circumstances, the first proviso to Section 11(3) of the Act does not attract in this case. 14. The petitioner also claims the benefit of the second proviso to Section 11(3) of the Act. In order to succeed in that claim, the petitioner ought to prove satisfactorily both the limbs of the second proviso. The evidence available on record with regard to the income being derived by the petitioner from the business in the petition schedule shop room is that of the oral testimony of RW1 alone. His evidence, unsupported by any document or independent evidence, is totally insufficient to show that the petitioner has no other sources of income and also that they can depend only on the income from the business in the petition schedule premises. 10 R.C.Rev.No.134 of 2022 15. Coming to the second limb of the second proviso to Section 11(3) of the Act, there is no much evidence. RW1 stated that no vacant building or room is available in the locality for availing on rent. His evidence would not show that after having necessary enquiry regarding the non-availability of other buildings, he has deposed that fact in the court. In the said circumstances, his evidence was rightly rejected by the courts below. Hence we desist from interfering with the finding of the courts below that the petitioner is not entitled to the benefit of the second proviso to Section 11(3) of the Act. 16. Accordingly, we find that this revision does not have merit and the same is liable only to be dismissed. Hence, the revision is dismissed. 17. 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 out another room and making necessary arrangements for shifting his business. 18. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant 11 ## R.C.Rev.No.134 of 2022 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 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 petitioners-landlady within six 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 he 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 the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by 12 R.C.Rev.No.134 of 2022 this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioners-landlady 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