In the High Court of Kerala at Ernakulam, R.C.Rev.No. 139 of 2021

## **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 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 R.C.REV.NO. 139 OF 2021** **AGAINST THE JUDGMENT DATED 09.02.2021 IN R.C.A.NO.10 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), KALPETTA AND THE ORDER DATED 27.02.2019 IN R.C.P.NO.9 OF 2014 OF THE RENT CONTROL COURT (MUNSIFF), MANANTHAVADY** ## **REVISION PETITIONERS:** - **1 T.P. MUHAMMED, AGED 60 YEARS, S/O KUNNEL MAMMY, RESIDING AT KUNIYIL VEEDU, P.O.VENGADU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** - **2 T.P.NOORDHEEN, AGED 55 YEARS, S/O KUNNEL MAMMY, RESIDING AT KUNIYIL VEEDU, P.O.VENGADU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** - **3 T.P.MUSTHAFA, AGED 56 YEARS, S/O KUNNEL MAMMY, RESIDING AT ARIYANKUNNUMMAL VEEDU, CHERUVANCHERY P.O, CHITTARIPARAMBA, THALASSERY TALUK, KANNUR-670650.** - **4 KHADEESU,** - **AGED 69 YEARS, W/O LATE MAMMY, RESIDING AT KUNIYIL VEEDU, P.O.VENGADU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** - **5 JAMEELA,** **AGED 53 YEARS, D/O LATE MAMMY, RESIDING AT P.K.S.VILLA,** - **P.O.VENGADU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** 2 R.C.Rev.No. 139 of 2021 - **6 RAMLU** **AGED 49 YEARS, D/O LATE MAMMY, RESIDING AT JANSAF VEEDU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** - **7 SHAKEELA, AGED 46 YEARS, D/O LATE MAMMY, RESIDING AT KUNIYIL VEEDU, P.O.VENGADU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** - **8 SHAFEER** **AGED 43 YEARS, S/O LATE MAMMY, RESIDING AT KUNIYIL VEEDU, P.O.VENGADU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** - **9 SHAMEER,** **AGED 41 YEARS, S/O KUNNEL MAMMY,** **RESIDING AT KUNIYIL VEEDU, P.O.VENGADU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** - **10 NISHAD,** **AGED 38 YEARS, (WRONGLY TYPED AS NIDHAD IN THE JUDGMENT OF THE APPELLATE AUTHORITY), S/O LATE MAMMY, RESIDING AT KUNIYIL VEEDU, P.O.VENGADU, ANAJARAKANDY, THALASSERY TALUK, KANNUR-670101.** - **11 NIYAS,** **AGED 35 YEARS, S/O LATE MAMMY, RESIDING AT KUNIYIL VEEDU, P.O.VENGADU, ANJARAKANDY, THALASSERY TALUK, KANNUR-670101.** **BY ADVS.** ## **V.V.SURENDRAN** **P.A.HARISH DONA PAUL** 3 R.C.Rev.No. 139 of 2021 ## **RESPONDENT:** **KADAVATH PATHOOTTY AGED 60 YEARS, W/O MOIDU, RESIDING AT NUCHAN VEEDU, P.O.KELLOOR, MANANTHAVADY, WAYANAD-670645.** **BY ADV ALEX.M.SCARIA** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 03.03.2022, THE COURT ON 09.03.2022 DELIVERED THE FOLLOWING:** 4 R.C.Rev.No. 139 of 2021 ## **O R D E R** ## Ajithkumar, J. The respondents-tenants in R.C.P.No.9 of 2014 on the file of the Rent Control Court (Munsiff), Mananthavady, are the petitioners. The respondent-landlady has filed the rent control petition seeking eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. It was allowed. The appeal filed by the petitioners herein as R.C.A.No.10 of 2019 under Section 18(1)(b) of the Act was dismissed by the Rent Control Appellate Authority (District Judge-I), Kalpetta. Feeling aggrieved thereof, the petitioner filed this revision petition under Section 20 of the Act. 2. The rent control petition was filed by the respondent-landlady claiming eviction on the ground of bonafide need. The need urged was that her son, who is a dependent of the landlady, wanted to start a readymade shop in the petition schedule shop room. It was also contended that she has no other building, which can suitably be used for the purpose. That claim was resisted by the petitioners by 5 R.C.Rev.No. 139 of 2021 contending that the landlady and her son are financially well of, her son has no intention to start such a business, he has no expertize, the landlady is in possession of so many other buildings in her possession and that the petitioners are entitled to get protection under the second proviso to Section 11(3) of the Act. 3. Evidence in the case consists of oral testimonies of PWs.1 and 2 and RWs.1 to 4, Exts.A1 to A8 and B1 to B7. The Rent Control Court, after deliberating upon the said evidence and on hearing both sides, found that the need urged by the respondent-landlady was bonafide and that the petitioners are liable to be evicted. Challenge made by the petitioners to the order of eviction by filing appeal before the Appellate Authority was not successful. That occasioned in filing this revision. 4. On 25.10.2021, this revision petition was admitted to file, ordering notice to the respondent. Interim stay of execution of the order of eviction was granted for a period of two months. It was extended from time to time. 6 R.C.Rev.No. 139 of 2021 5. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. 6. The learned counsel appearing for the petitioners raised contentions that the need urged by the landlady lacks bonafides and also that the petitioners are entitled to the protection under the second proviso to Section 11(3) of the Act. However, the learned counsel stressed more on the contentions that the landlady got evicted tenants in two rooms recently and sold other two rooms after commencement of the rent control petition as evidenced by Exts.B6 and B7 which would attract the provisions under the first proviso to Section 11(3) of the Act. It is contended that having such four rooms available vacant with the landlady, she filed the rent control petition without disclosing those facts and offering any plausible explanation for not using the said rooms for the projected purpose, she would be disentitled to claim ejectment of the petitioners. 7. The learned counsel appearing for the respondent, 7 ## R.C.Rev.No. 139 of 2021 on the other hand, contended that the landlady was not obliged to state about other buildings belonging to her in the petition, as it was the burden of the tenants to prove availability of such rooms in the possession of the landlady. However, as a matter of fact the allegation of the petitioners that two rooms got vacated have been available with the landlady, is absolutely incorrect. Those rooms were obtained for the purpose of starting a travel agency business by the husband of the landlady, which already has been started. Those rooms are on the upstairs of the building, having no direct access to the road. Therefore, the said rooms are not at all suitable for conducting a readymade shop. As regards the sale by virtue of Exts.B6 and B7, the learned counsel for the respondent would submit that though the sale deed was executed in 2018, agreement to sell the said rooms was entered into four years before by accepting advance sale consideration. Moreover, the said rooms were not vacant. In such circumstances, it was absolutely unnecessary for the landlady to mention about the said rooms in the petition. 8 R.C.Rev.No. 139 of 2021 Nonetheless, she had stated sufficient explanation with respect to all the said rooms in chief examination itself and the explanations offered were sufficient. Accordingly, the learned counsel for the respondent maintains that the eviction ordered by the Rent Control Court and concurred by the Appellate Authority is supported by sufficient evidence and in consonance with the settled legal principles. 8. 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 any such direction if the landlord has another building of his 9 R.C.Rev.No. 139 of 2021 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. 9. 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. 10 R.C.Rev.No. 139 of 2021 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. 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. In **Gireeshbabu T. P. v. Jameela and others [2021 (5) KHC SN 30]** this Court reiterated that in order to satisfy the 11 R.C.Rev.No. 139 of 2021 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 proviso to Section 11(3) of the Act. 11. PW1, the landlady, and PW2, her son, for whose need eviction was sought, deposed in court the purpose for which room is required. PW2 is a family man, having wife and children. He is educated, but has no permanent avocation. He worked for about two years as a salesman in a textile shop. In those circumstances, he decided to start a readymade textile shop, for which his experience would of much help. The 12 R.C.Rev.No. 139 of 2021 evidence of PWs.1 and 2 was considered by the courts below in detail, in the light of the other circumstances pointed out by either side and found that the need urged by the respondent was bonafide. We in exercise of the powers under Section 20 of the Act do not find any reason to hold that the said finding is illegal, irregular or perverse. 12. Much stress is made by the learned counsel appearing for the petitioners on the fact of sale of two rooms by virtue of Exts.B6 and B7 by the landlady to dislodge her claim for eviction. As regards the two rooms, possession of which was obtained by the landlady recently, the learned counsel appearing for the petitioners conceded that being on the upstairs those two rooms might not be that suitable for a readymade textiles business. Both PWs1 and 2 categorically deposed also that these rooms were already put in possession for the desired purpose of starting a travel agency by the husband of PW1. 13. The explanation given by PW1 regarding Exts.B6 and B7 shop rooms is that the agreement to sell the said 13 R.C.Rev.No. 139 of 2021 rooms was entered into four years before and as she was obliged to sell the said rooms, she thought of not mentioning about the same in the rent control petition. PW1, in her proof affidavit in lieu of chief examination has stated regarding the circumstances under which Exts.B6 and B7 were executed. Of course, having had such an agreement prior to the filing of the rent control petition, it was appropriate for her to state that fact in the petition. Nevertheless, the landlady offered a convincing explanation as to why those two rooms were not available for the intended purpose. It remains a fact that the landlady had to sell the said rooms. It certainly implies that she had unavoidable life necessities constraining her to sell those rooms. It cannot be insisted that avoiding such requirements, she would have used the said rooms for the proposed need. Had she retained such vacant rooms and demanded eviction, it would have been said that she had some oblique motive. On the other hand, the explanation offered by the landlady-respondent with regard to the said two rooms is convincing and acceptable. Therefore, the 14 R.C.Rev.No. 139 of 2021 contention that sale of the said rooms stands in the way of the eviction of the petitioners from the petition schedule shop is untenable. 14. It is further contended that a portion of the petition schedule shop room would have to be demolished once the landlady had to surrender ¼ cents of land on the basis of the proceedings initiated vide Ext.B2. Ext.B1 shows that the landlady and other co-owners undertook to surrender 1/4 cents of land, which their predecessor-in-interest availed from the Government on lease. As of now, the petition schedule shop room is available intact. Whether any portion of the same or the adjoining rooms in the same building had to be demolished, has nothing to do with the present need of the landlady. Therefore, the said reason cannot be countenanced to say that the need urged by the landlady is not bonafide. In the said circumstances, we hold that the contention of the learned counsel for the petitioners with reference to the first proviso to Section 11(3) of the Act is untenable. 15. Coming to the second proviso to Section 11(3) of 15 R.C.Rev.No. 139 of 2021 the Act, there is not much scope for a serious contest. There are 11 co-tenants. It is not specifically pleaded that among them who is doing the bakery business in the petition schedule shop room and for whose livelihood income therefrom has to be depended upon. In the absence of any such specific plea, the petitioners are not entitled to claim protection of the second proviso to Section 11(3) of the Act. 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 right in re-appreciating the entire evidence 16 R.C.Rev.No. 139 of 2021 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 Amma Saradamma** that the word ‘propriety’ does not confer 17 ## R.C.Rev.No. 139 of 2021 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. In the light of the said legal principles, we are of the definite view that there is no reason to interfere with the order of the Rent Control Court or the judgment of the Appellate Authority which are not suffering from any illegality, irregularity or impropriety. Hence this Revision Petition fails. 18 R.C.Rev.No. 139 of 2021 We, accordingly, dismiss it. 20. At the time of pronouncement of this Order, the learned counsel for the petitioners has made a request to afford six month's time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting the business. The learned counsel for the respondent is agreeable to grant four 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 shop room, 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 shop room to the petitioner-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 building only on the strength of a 19 R.C.Rev.No. 139 of 2021 valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondents-tenants 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 respondents-tenants 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 petitioner-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