Hyurinnisa and others v. C.J. Jose Mohan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **R.C.REV.NO.182 OF 2020** **AGAINST THE JUDGMENT DATED 18.08.2020 IN R.C.A.NO.83 OF 2017 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE-III), THRISSUR AND THE ORDER DATED 28.03.2017 IN R.C.P.NO.62 OF 2012 OF THE RENT CONTROL COURT (MUNSIFF), CHAVAKKAD** ## **REVISION PETITIONERS:** **1 HYURINNISA, AGED 65 YEARS, W/O. LATE HAMZA, PUTHUVEETIL HOUSE, DOOR 11/05, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK, GURUVAYOOR P.O., PIN-680 101.** - **2 AISHA,** **AGED 42 YEARS, D/O. LATE HAMZA, PUTHUVEETIL HOUSE, DOOR 11/05, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK, GURUVAYOOR P.O., PIN-680 101.** - **3 ANEESH,** **AGED 40 YEARS, S/O. LATE HAMZA, PUTHUVEETIL HOUSE, DOOR 11/05, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK, GURUVAYOOR P.O., PIN-680 101.** - **4 MUNEER,** **AGED 39 YEARS, S/O. LATE HAMZA, PUTHUVEETIL HOUSE, DOOR 11/05, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK, GURUVAYOOR P.O., PIN-680 101.** ## **BY ADV K.B.PRADEEP** 2 R.C.Rev.No. 182 of 2020 ## **RESPONDENTS:** - **1 C.J.JOSE MOHAN** **AGED 67 YEARS, S/O. LATE C.L. JOSEPH, GENERAL MANAGER, SOUTH INDIAN BANK LTD., SIB BUILDING, MARKET ROAD, ERNAKULAM.** - **2 RESHMA,** **AGED 43 YEARS, D/O. LATE HAMZA, PUTHUVEETIL HOUSE, DOOR 11/05, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK, GURUVAYOOR P.O.** - **3 AMEER,** **AGED 37 YEARS, S/O. LATE HAMZA, PUTHUVEETIL HOUSE, DOOR 11/05, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK, GURUVAYOOR P.O.** - **4 JAMSHEER** **AGED 36 YEARS, S/O. LATE HAMZA, PUTHUVEETIL HOUSE, DOOR 11/05, IRINGAPRAM** **AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK, GURUVAYOOR P.O.** **BY ADVS.** **P.T.MOHANKUMAR GEORGE CHERIAN** **RAJESH CHERIAN KARIPPAPARAMBIL** ## **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL** **HEARING ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 182 of 2020 ## **O R D E R** Ajithkumar, J. R.C.P.No.68 of 2012 was filed before the Rent Control Court (Munsiff), Chavakkad by the 1[st] respondent-landlord seeking eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioners and respondent Nos.2 to 4 were the respondents in the rent control petition. Their predecessor Sri.Hamsa, who is no more, was the tenant. The Rent Control Court allowed the rent control petition as per order dated 28.03.2017. The petitioners, who are respondent Nos 1, 3, 4 and 5, preferred an appeal under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (District Judge-III), Thrissur as per judgment dated 18.08.2020 in R.C.A.No.83 of 2017 dismissed the appeal. Feeling aggrieved thereof, this revision petition under Section 20 of the Act has been filed. 2. The 1[st] respondent herein was born and brought up in the petition schedule building. Tombs of his parents are in 4 R.C.Rev.No. 182 of 2020 the nearby Church. He retired from the South Indian Bank Ltd. on 31.03.2013. In the circumstances, he wanted to put up his residence in the petition schedule building. Therefore, he sought eviction of the tenants on account of bona fide need for own occupation. 3. In the objection filed by the petitioners in the rent control petition, they contended that the need urged was not bona fide, a portion of the petition schedule building is already in his possession and that he owns and possesses a residential house at Ayyanthole, where he can reside. 4. The Rent Control Court recorded oral evidence of PW1, PW2 and RW1. The documents received in evidence are Exts.A1 to A41, B1 and B2. Both the Rent Control Court and the Appellate Authority considered the said evidence in detail and concurrently found that the need urged by the 1st respondent was bona fide. 5. On 20.10.2020, this Court ordered notice on admission to the respondents. The 1[st] respondent alone entered appearance. 5 R.C.Rev.No. 182 of 2020 6. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the 1[st] respondent. 7. The learned counsel appearing for the petitioners would contend that since the 1[st] respondent is in possession of a portion of the building, his very claim under Section 11(3) of the Act would not lie. It is further contended that the residential building of the 1[st] respondent at Ayyanthole is more convenient and leaving that aside, the claim of the 1[st] respondent for the petition schedule building, is without any bona fides. Having resided all throughout away from Chavakkad, where the petition schedule building is situated, there is no justification for him now to claim that he wanted to come and reside in the petition schedule building. The learned counsel thus would urge that the need now put forward by the 1[st] respondent is just a ruse for eviction. 8. The learned counsel appearing for the 1[st] respondent, on the other hand, would submit that in connection with his employment, the 1[st] respondent was 6 R.C.Rev.No. 182 of 2020 constrained to be away from his childhood home and once he retired, it is his will and desire to come back and reside in the petition schedule building. It is further submitted that oral testimony of PW1, together with various documents produced by him, would substantiate his umbilical connection with the petition schedule building, and therefore, his desire to reside in the petition schedule building is a bona fide one and it is not merely a wish or a fanciful idea. For that reason, availability of another building cannot be a bar for his claiming eviction of the tenants from the petition schedule building as well. 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 7 R.C.Rev.No. 182 of 2020 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. 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 8 R.C.Rev.No. 182 of 2020 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. 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 9 R.C.Rev.No. 182 of 2020 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** **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 for 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. Ext.A17 is a copy of the SSLC book of the 1[st] respondent. Exts.A18 to 29 are the documents showing that all his family affairs connecting to religious ceremonies were 10 R.C.Rev.No. 182 of 2020 held in the Church near the petition schedule building only. Highlighting those aspects, he as PW1, deposed in court that it is his will and desire to reside in the petition schedule building during his post-retirement period. 13. The petition schedule building belongs to the 1[st] respondent. Ext.A13 is the Will as per which the building devolved upon him. Ext.A1 is the lease agreement. The petitioners have no dispute that the 1[st] respondent is the owner of the building. Their only contention is that such a need was put forth by the 1[st] respondent without any sincerity. However, in the light of the definite version of PW1 and in view of the proved fact that the petition schedule building is his childhood home and he has a sentimental connection to the building, the finding can only be that his decision to reside in the said building during his postretirement period is honest, sincere and therefore bona fide. The findings of the courts below in this regard is supported by sufficient evidence and justified in the light of the principles of law as laid down in the decisions referred to above. Therefore, 11 R.C.Rev.No. 182 of 2020 we find that it is inept for this Court to interfere with the said concurrent finding in exercise of powers of this Court under Section 20 of the Act. 14. The learned counsel appearing for the petitioners would contend by pointing out that a portion of the building is in the possession of the 1[st] respondent, and therefore, he cannot claim eviction under Section 11(3) of the Act. Of course, it is an undisputed fact that one room and one bathroom in the building have been retained in the possession of the 1[st] respondent. The petitioners, however, have no case that the 1[st] respondent is in occupation of that portion of the building. Section 11(8) of the Act attracts only when the landlord is in occupation of a part of the building. In the absence of any evidence in that respect, the said contention of the petitioners cannot be countenanced. 15. In the nature of the need urged by the 1st respondent, availability of a building at Ayyanthole cannot be a reason to invoke the first proviso to Section 11(3) of the Act. Only if the building in possession of the landlord is 12 R.C.Rev.No. 182 of 2020 suitable for his purpose, he can be denied eviction on the ground of bona fide need. The building at Ayyanthole therefore can in no way, be a substitute for the petition schedule building. In the circumstances, we hold that possession of a portion of the petition schedule building or owning a building at Ayyanthole by the 1[st] respondent does not disentitle him from claiming vacant possession of the petition schedule building on the ground of bona fide need. 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 13 R.C.Rev.No. 182 of 2020 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. 17. 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** 14 R.C.Rev.No. 182 of 2020 **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. 18. 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 (supra)** the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could - not re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 19. Viewed in the light of the proposition of law laid down in the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of 15 R.C.Rev.No. 182 of 2020 illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 20. The learned counsel for the petitioners has made a request to afford time till the end of this calendar year for vacating the premises pointing out the difficulty in finding out another building. The learned counsel for the 1[st] respondent is agreeable to grant three months’ time. 21. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule building, subject to the following conditions: - (i) The respondents-tenants 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 they will surrender vacant possession of the petition schedule building to the petitioner-landlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule building; - (ii) The respondents-tenants in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, 16 R.C.Rev.No. 182 of 2020 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 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