Hymavathy K.K v. Rohini V.N and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 ``` ``` RCREV.NO.85OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 29.11.2021 IN RCA NO.163 OF 2014 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THALASSERY ORDER DATED 25.08.2014 IN RCP NO.18 OF 2013 OF RENT CONTROL ``` ``` (MUNSIFF) COURT, THALASSERY ``` ``` REVISION PETITIONER/SUPPLEMENTARY APPELLANT: ``` ``` HYMAVATHY K.K, AGED 48 YEARS NO OCCUPATION, KUMARAN QUARTERS, P.O. PERUMTHATTIL, KOROTH PEEDIKA, THALASSERY, KANNUR DISTRICT - 670 107. ``` ``` BY ADVS. K.MOHANAKANNAN T.ANCY ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 6/PETITIONERS 1 TO 6:`** ``` *1ROHINI V.N *(DIED) W/O. KUMARAN, AGED 77 YEARS, RETIRED TEACHER, ROHINI MANDIRAM, P.O. PERUMTHATTIL, THALASSERY TALUK, KANNUR DISTRICT - 670 107. ``` ``` 2RANJINI.V.N. AGED 56 YEARS D/O. LATE KUMARAN, ROHINI MANDIRAM, P.O. PERUMTHATTIL, THALASSERY TALUK, KANNUR DISTRICT - 670 107. ``` ``` 3DR. KUSUMAM, AGED 54 YEARS ``` 2 R.C.(Rev) No.85 of 2022 ``` W/O. DR. BHASKARAN,PHYSICIAN, SREE, PUTHIYANGADI P.O., KOZHIKODE - 673 021. ``` ``` 4V.N. SREELATHA, AGED 53 YEARS D/O. LATE KUMARAN, SCIENTIFIC ASSISTANT, SANTHI, KESAVADASAPURAM, THIRUVANANTHAPURAM - 695 001. ``` ``` 5DR.ANITHA, AGED 52 YEARS D/O. LATE KUMARAN, AYURVEDIC DOCTOR, ROHINI MANDIRAM, P.O. PERUMTHATTIL, THALASSERY TALUK, KANNUR DISTRICT - 670 107. ``` ``` 6DR.ASHALATHA, AGED 49 YEARS ``` ``` D/O. LATE KUMARAN, NO OCCUPATION, ROHINI MANDIRAM, P.O. PERUMTHATTIL, THALASSERY TALUK, KANNUR DISTRICT - 670 107 ``` ``` BY ADVS. U.P.BALAKRISHNAN U P K.R.AVINASH(A-692) ``` ``` ABDUL RAOOF PALLIPATH(K/920/1998) C.H.ABDUL RASAC(K/912/2005) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.C.(Rev) No.85 of 2022 ## **O R D E R** ## G. Girish, J. The revision petitioner is the legal representative of late Keezhoth Mundani Bhargavi, the original tenant in R.C.P.No.18 of 2013 of Rent Control Court, Thalassery, who suffered an order of eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The impleadment of the revision petitioner was made during the pendency of R.C.A.No.163 of 2014 before the Rent Control Appellate Authority (Additional District Judge-III), Thalassery consequent to the death of the original tenant. In the present revision, the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority favouring the landlords in getting possession of the petition schedule building on the grounds envisaged under Sections 11(2)(b) and 11(3) of the Act, are under challenge. 2. The petition schedule room was leased out to the predecessor-in-interest of the revision petitioner by one Kayiprath Kumaran, the husband of the 1[st] respondent and the father of respondents 2 to 6. Complaining of arrears of rent, and claiming 5[th] respondent to conduct an Ayurvedic hospital, the respondents instituted R.C.P.No.18 of 2013 before the Rent Control Court, Thalassery. In the trial conducted in the above proceedings, the 4 R.C.(Rev) No.85 of 2022 5[th] respondent was examined as PW1 and nine documents were marked as Exts.A1 to A9 from the part of the landlords. Revision petitioner was examined as RW1, but no documents were exhibited from her part. The Rent Control Court, after an evaluation of the above evidence, passed the order on 25.08.2014 directing the respondent to handover vacant possession of the petition schedule building to the respondents-landlords on the grounds envisaged under Sections 11(2)(b) and 11(3) of the Act. Though the predecessor-in-interest of the revision petitioner, and thereafter the revision petitioner, challenged the above order before the Rent Control Appellate Authority, Thalassery by filing R.C.A.No.163 of 2014, it resulted in the dismissal of the appeal. It is aggrieved by the above dismissal of the appeal by the Rent Control Appellate Authority, that the petitioner is here with this revision. 3. The point to be decided is whether the concurrent findings of the Rent Control Court and the Appellate Authority directing eviction of the respondent from the petition schedule building on the ground of arrears of rent and bona fide need, is liable to be interfered with in this revision. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents-landlords. 5 R.C.(Rev) No.85 of 2022 5. As regards the arrears of rent, it is the contention of the tenant that the refusal on the part of the landlord to receive the rent from her was the reason for the default in payment of rent. It is well settled that no tenant could raise such an objection to justify the default in payment of rent. Section 9 of the Act provides the remedy of the tenant for the payment of rent when the landlord refuses to accept the rent from him and to issue receipts for the same. The tenant could, in such a contingency, either send the rent to the landlord by way of money order, or deposit the amount in a bank account as provided in that Section. The proposition of law in this regard has been laid down by a Division Bench of this Court in **Bhaskaran Assan v. Ammukutty Amma [1992 (2) KLT 565 : 1992 (2) KLJ 603]** . It has been held thereunder that Section 9 of the Act is a protection to the tenant, and it is for the tenant to make use of such protection in a case where the landlord refuses to issue receipt to the tenant. Paragraph 6 of the aforesaid decision reads as follows: “6. Section 9 of the Act provides that a tenant is entitled to demand and obtain a receipt for the payment of rent made by him to the landlord. It also provides that in a case where the landlord refuses to issue receipt, it is open to the tenant to sent the rent by way of money order after deducting the money order commission or issue a notice to the landlord requiring the landlord to specify a bank into which the tenant could remit the 6 R.C.(Rev) No.85 of 2022 rent due. We find that this statutory provision is a protection to the tenant and it is for the tenant to make use of such protection in a case where the landlord refuses to issue receipt to the tenant The case of the tenant in this case is that the landlord was not issuing receipts to him though he wanted receipts. If that be so one would normally expect the tenant to take recourse to Section 9 of the Act and his not having done so is a relevant circumstance in appreciating the claim of the landlord for eviction. The Appellate Authority also took note of the fact that in his reply, Ext.A3, to the notice under the proviso to Section 11(2)(b) of the Act (Ext.Al) the tenant had no case that receipts were not being issued inspite of being demanded. It is in this background that the Appellate Authority has appreciated the oral evidence of PWl the landlord and RW1 the tenant. The Appellate Authority has concluded on such appreciation that the tenant was in arrears and that the appellant was entitled to an order for eviction under Section 11(2) of the Act.” 6. In the light of the settled principle of law in the above regard, the revision petitioner cannot be heard to say that the refusal on the part of the landlord to accept rent, was the reason for accumulation of rent arrears. Needless to say that the findings of the Appellate Authority and Rent Control Court on this score, are perfectly sound. 7. As already stated above, the necessity of the petition schedule building to be used for the commencement of an Ayurvedic hospital by the 5[th] respondent, an Ayurvedic Doctor, is the bona fide 7 R.C.(Rev) No.85 of 2022 need projected by the landlord under Section 11(3) of the Act. Except for a bald and unwarranted contention that the 5[th] respondent does not have the mental capacity to act as an Ayurvedic Doctor, the revision petitioner-tenant could not state anything to assail the bona fides of the landlords in seeking eviction on that ground. The law is well settled that the only aspect which the Rent Control Court is expected to look into in a petition seeking eviction under Section 11(3) of the Act is whether the need projected by the landlord is natural, real and sincere; and if it is so found, there is no other option but to order eviction. 8. 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 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 8 ## R.C.(Rev) No.85 of 2022 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. 9. In **Nalakath Saidali Haji v. Kalluparamba Musthafa and others [2015 (4) KHC 815]** , a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra, and held that the question as to whether a particular need is bona fide or not has to be judged by the Court, placing itself in the position of landlord. ## 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. ## 11. In **Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** , a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a party, held 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 9 R.C.(Rev) No.85 of 2022 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 but, of course, subject to the first and second provisos to Section 11(3). ## 12. In **Aboobacker.C.P v. K.T.Sreelatha Nambiar [2022** **KHC 5100]** also, a Division Bench of this Court in which one among us, (Anil K. Narendran, J.) was a party, has held that once, on the basis of 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 the said Act. 13. As far as the present case is concerned, the revision petitioner-tenant could not bring out anything to think that the landlords have approached the Rent Control Court for eviction of the tenant without any real, sincere and honest requirement for the 5[th] 10 R.C.(Rev) No.85 of 2022 respondent to have the petition schedule building for the commencement of an Ayurvedic hospital, or that the reason stated in the above regard was only a ruse to evict the revision petitioner from that building. 14. As regards the applicability of the first proviso to Section 11(3) of the Act, the revision petitioner-tenant had contended that the respondents-landlords are in possession of several vacant buildings suitable for the proposed hospital near the Village Office building at Arangettuparamba and also near old bus stand, Thalassery. Apart from a mere statement in the above regard, the revision petitioner-tenant could not bring out anything to show that the above buildings referred by her, were in the same city, town or village, and that those buildings were suitable for the commencement of the Ayurvedic hospital proposed by the 5[th] respondent. 15. It is well-settled that the onus of proof rests upon the tenant to establish the requirements of the first proviso to Section 11(3) of the Act, by convincing evidence. Following the various earlier decisions of this Court, it has been held by a Division Bench of this Court in **Chethil Tharemmal Rasheeda v. Peedikayilakath Muhammed [2021 (6) KHC 723]** , in which one among us, (Anil K. Narendran, J.) was a party, that the burden to 11 ## R.C.(Rev) No.85 of 2022 prove the first proviso to Section 11(3) of the Act, is on the tenant. As far as the present case is concerned, the revision petitioner has not succeeded in bringing on record convincing evidence to substantiate her contention regarding the availability of suitable buildings for the landlord in the same city, town or village, for the commencement of an Ayurvedic hospital for the 5[th] respondent. Therefore, the challenge against the order of eviction by relying on the first proviso to the Act, is bereft of merit. Coming to the second proviso to Section 11(3) of the Act, it is having no applicability in the facts and circumstances of this case, since the petition schedule building is admittedly occupied by the revision petitioner-tenant for residential purpose alone. 16. As a conclusion to the above discussion, we find that the impugned order of the Rent Control Court and the judgment of the Appellate Authority are neither perverse nor patently illegal, warranting interference in this revision. When our view, as above, has been made clear in open court, the learned counsel for the revision petitioner-tenant sought time for one year for the revision petitioner to vacate the petition schedule building. The learned counsel for the respondents-landlords opposed the above request stating the reason that such a long period of time would cause further hardship and sufferings to the respondents-landlords who 12 R.C.(Rev) No.85 of 2022 have been prosecuting this proceedings for the eviction of the revision petitioner-tenant right from the year 2013. Having regard to the submissions of the learned counsel for the revision petitioner and the learned counsel for the respondents-landlords on the above aspect, we feel it proper to grant a period of six months’ time to the revision petitioner-tenant to vacate the petition schedule building, if she is ready to abide by the terms and conditions enumerated hereafter in the concluding portion of this order. 17. Accordingly, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting six months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondents-landlords, subject to the following conditions: - (i) The petitioner-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 respondents-landlords within six months from the date of this order and that, she shall not induct third parties into possession of the petition schedule building; 13 R.C.(Rev) No.85 of 2022 - (ii) The petitioner-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 two 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 petitioner-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 schedule building will stand cancelled automatically and the respondents-landlords will be at liberty to proceed with the execution of the order of eviction. (sd/-) (sd/-) ## **G. GIRISH, JUDGE** jsr/vgd