Iqbal v. M.K. Ashkar

## **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 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944 R.C.REV.NO. 123 OF 2022** **AGAINST THE JUDGMENT DATED 31.03.2022 IN R.C.A.NO.8 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), PALAKKAD AND THE ORDER DATED 21.12.2019 IN R.C.P.NO.4 OF 2018 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), PALAKKAD** ## **REVISION PETITIONER:** **IQBAL,** **AGED 64 YEARS, S/O. ABDUL JABBAR, DOOR NO. 31/852, BOC ROAD, PALAKKAD - 678 014.** **BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER** ## **RESPONDENT:** **M.K.ASHKAR, AGED 32 YEARS, S/O. LATE M.A. KUNHIMOIDEEN, MALAYANKODE HOUSE, MEPPARAMBA, PALAKKAD - 678 014.** **BY ADV GIRIJA K GOPAL(CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.123 of 2022 ## **O R D E R** Ajithkumar, J. This is a revision petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, by the respondent-tenant in R.C.P.No.4 of 2018 on the file of the Rent Control Court (Additional Munsiff), Palakkad. The Rent control Petition was filed seeking eviction of the petitioner under Sections 11(2)(b) and 11(3) of the Act. Eviction under Section 11(3) of the Act is allowed as per the order dated 21.12.2019. The petitioner preferred an appeal under Section 18(1)(b) of the Act as R.C.A.No.8 of 2020. The Rent Control Appellate Authority (Additional District Judge-III), Palakkad, dismissed the appeal as per judgment dated 31.03.2022. Feeling aggrieved thereof, the petitioner has filed this revision petition. 2. Today, when this matter came up for admission, we heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondentlandlord, who filed a caveat. 3 R.C.Rev.No.123 of 2022 3. The respondent sought eviction of the petitioner from the petition schedule shop room on the ground that he needs the premises to start a shop for sales and service of mobile phones. He proposes to use the petition schedule shop room as well as its adjoining room, which is already in his possession for the purpose. Stating that having married recently and the income now he is deriving is only limited, it is a necessity for him to start a business, he demanded the eviction of the petitioner. The petitioner contended that there is no necessity for the respondent to start such a business; since he has enough income and if at all required, he has other rooms in his possession. It was contended that he along with his brother has been running a steel business. The petitioner also claimed benefit of the second proviso to Section 11(3) of the Act saying that the income he is deriving from the cycle repair shop in the petition schedule shop room is his sole source of livelihood and no alternative building is available in the locality. 4 R.C.Rev.No.123 of 2022 4. PWs.1 and 2 were examined and Exts.A1 and A2 were marked on the side of the respondent. RW1 was examined and Exts.B1 to B3 were marked on the side of the petitioner. The Rent Control Court, after considering the said evidence, found that there was no reason to disbelieve the version of PWs.1 and 2, which certainly affirm that the need urged by the respondent is bona fide. Also, it was found that the petitioner has not been doing any worthwhile business in the petition schedule shop room and the evidence is insufficient to prove the requirements of the second proviso to Section 11(3) of the Act. 5. Before the Appellate Authority, apart from the contentions raised before the Rent Control Court, the petitioner raised a contention that the respondent is a person who does not have sufficient mental capacity, and therefore, the entire proceedings were vitiated for want of a next friend for him to conduct the case. A statement of PW2, that PW1 the petitioner, who is his brother, has of less lQ (intelligence quotient) and intellectual capacity was used to contend that 5 R.C.Rev.No.123 of 2022 non-compliance with Order XXXII Rule 15 of the Code of Civil Procedure, 1908 vitiated the proceedings. The Appellate Authority did not accept that contention. The attack on the findings of the Rent Control Court on the bona fide need and the second proviso to Section 11(3) of the Act were also affirmed by the Appellate Authority. 6. The learned counsel appearing for the petitioner would submit that when PW2 deposed before the court that the petitioner did not have sufficient intellectual capacity, without an enquiry and finding regarding his mental ability the proceedings should not have been continued. A stray sentence from the evidence of PW2 has been relied upon to raise such a contention. 7. PW1, the petitioner, is a married man. He earlier filed R.C.P.No.6 of 2010 and obtained an order of eviction. The room in respect of which Ext.B3 order was obtained is undisputedly used for the business of the partnership to which he also is a partner. PW1 deposed before the Rent Control Court with sufficient prudence. The learned counsel appearing 6 R.C.Rev.No.123 of 2022 for the petitioner did not point out any instance of giving a statement by PW1 in court without reason and logic. He may be a person with less intellectual capacity. But, there is nothing on record to show that he is a person incapable, by reason of mental infirmity, of protecting his interest in the case. No contention was raised by the petitioner in this regard before the Rent Control Court. In such circumstances, we find no reason to upset the view taken by the Appellate Authority in this respect. 8. The respondent is already in possession of the adjoining room. It is his definite case that he requires the petition schedule shop room and the adjoining room for housing the mobile phone business, which he proposed to start. He is a person about 30 years of age. He is married. He has no employment. He deposed before the court that the only income that he is now getting is the share of profits from the joint business being done under the management of his brother, PW2. Taking those aspects into account, we are of the definite view that the need urged by the respondent is honest and sincere. 7 R.C.Rev.No.123 of 2022 9. Section 11 of the Act deals with the 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 the 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 8 R.C.Rev.No.123 of 2022 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 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** 9 R.C.Rev.No.123 of 2022 **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** **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 10 R.C.Rev.No.123 of 2022 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. Viewed in the light of the principles laid down in the aforesaid decisions, the findings rendered by the courts below that the need urged by the respondent is bona fide, cannot be said to be incorrect. The said findings are legal, regular and proper and there is no reason to interfere with it. 13. The petitioner claimed that he is conducting a cycle repair shop in the petition schedule shop room and the income therefrom alone can be depended upon for his livelihood. But during the examination before the court as RW1, he admitted that he was doing the cycle repair work in front of the shop of one Swamy and that he was using the petition schedule shop room to keep his tools. If so, it cannot be said that he is carrying out his trade in the petition schedule shop room. The necessary corollary is that the income that could be generated from the 11 ## R.C.Rev.No.123 of 2022 activity in the petition schedule shop room is not his sole source of livelihood. He further deposed that he did not enquire about the availability of any other room in the locality to shift his business. When the burden to prove both limbs of the second proviso to Section 11(3) of the Act is upon the tenant, the aforesaid evidence let in by the respondent is totally insufficient to discharge that burden. In such circumstances, we uphold the concurrent findings of the courts below that the petitioner is not entitled to get the benefit of the second proviso to Section 11(3) of the Act. 14. 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 12 R.C.Rev.No.123 of 2022 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. 15. 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 13 R.C.Rev.No.123 of 2022 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. 16. 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. 17. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment 14 R.C.Rev.No.123 of 2022 of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 18. The learned counsel for the petitioner has made a request to afford nine months for vacating the petition schedule shop room pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. The learned counsel for the respondent would submit that a reasonable period can be granted for surrendering the vacant possession of the petition schedule building. 19. Having considered all the aspects, we deem it appropriate to grant five months’ time to surrender vacant 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 15 R.C.Rev.No.123 of 2022 ## petitioner-landlord within five 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 this order to surrender vacant possession of the petition schedule shop room 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