Jayakumar v. Luciyamma T.V

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 ``` ``` RCREV.NO.169OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 16.07.2022, IN RCA NO.1 OF 2014 ON THE FILES OF RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA IN ORDER DATED 21.12.2013, IN R.C.P.NO.13 OF 2012, ON THE FILES OF THE RENT CONTROL COURT, CHERTHALA ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` JAYAKUMAR AGED 50 YEARS S/O SREEDHARAN, LEELA NIVAS, EAST OF MANAVELI JUNCTION, CHERTHALA EAST MURI, KOKKATHAMANGALAM VILLAGE, MARUVATHORVATTOM.P.O, CHERTHALA. ``` ``` BY ADV K.S.HARIHARAPUTHRAN ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` MRS.LUCIYAMMA T.V AGED 66 YEARS W/O JOSEPH, PUTHENPURAKKAL HOUSE, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE ``` ``` BY ADVS. ``` ``` T.JAYAKRISHNAN R.KRISHNAKUMAR (CHERTHALA) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev) .No 169 of 2022 ## **O R D E R** ## G. Girish, J. The respondent-tenant in R.C.P.No.13 of 2012 of the Rent Control Court, Cherthala has filed this revision against the judgment dated 16.07.2022 of the Rent Control Appellate Authority (Additional District Judge-III), Alappuzha which confirmed the order of eviction passed by the Rent Control Court under Section 11(2)(b), 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') in the aforesaid R.C.P. The challenge in this revision is also against the fixation of fair rent by the Rent Control Court at the rate of Rs.2,000/- per month, which was upheld by the Appellate Authority. 2. Aggrieved by the alleged default on the part of the revision petitioner-tenant to pay rent from 2007 onwards, and also his refusal to hand over the petition schedule shop room, which was allegedly being kept unoccupied for a period of more than two years, to the respondent-landlord for the bona fide need of conducting a Ladies Store, petition was instituted before the Rent Control Court, Cherthala for the eviction of the revision petitioner-tenant under the aforesaid provisions. The landlord also sought fixation of fair rent for the petition schedule shop room since the prevailing rent of Rs.210/- per month was too meagre. The revision petitioner-tenant 3 R.C.(Rev) .No 169 of 2022 defended the proceedings contending that the rent happened to be in arrears from 01.02.2011 due to refusal of the respondent-landlord to receive the same. He further contended that an amount of Rs.3,00,000/- was given to the respondent-landlord in the year 1994, which was intended to be adjusted towards future rent. The revision petitioner strongly disputed the allegation of non-occupation of the petition schedule shop room and the bona fide need claimed by the respondent-landlord, and contended that he is not liable to be evicted on the above grounds. As regards the fixation of fair rent, the revision petitioner would contend that the prevailing rate of Rs.210/- per month is reasonable. 3. In the trial before the Rent Control Court, the landlord and five witnesses were examined as PW1 to PW6 and five documents were marked as Exts.A1 to A5. The brother of the tenant was examined as RW1 and six documents were marked as Exts.B1 to B6 from the part of the tenant. Two commission reports were marked as Exts.C1 and C2, and five third party documents were marked as Exts.X1 to X5. After an evaluation of the above evidence and hearing both sides, Rent Control Court found that the revision petitioner-tenant is liable to be evicted from the petition schedule shop room under Section 11(2)(b), 11(3) and 114(v) of the Act. The 4 R.C.(Rev) .No 169 of 2022 Rent Control Court also fixed the fair rent of the petition schedule shop room at Rs.2,000/- per month. 4. Aggrieved by the above order of the Rent Control Court, the revision petitioner-tenant filed appeal before the Rent Control Appellate Authority, Alappuzha as R.C.A.No.1 of 2014. The Appellate Authority, after a re-appraisal of the entire evidence, found that there was absolutely no reason to interfere with the order passed by the Rent Control Court, and accordingly dismissed the appeal. 5. The above concurrent findings of the Rent Control Court and the Appellate Authority are under challenge in this revision. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent-landlord. 7. The point to be decided is whether the concurrent findings of the Rent Control Court and the Appellate Authority in the matter of fixation of fair rent and eviction of the revision petitionertenant upon the grounds envisaged under Section 11(2)(b), 11(3) and 11(4)(v) are liable to be interfered with. 8. As regards the fixation of fair rent, the Rent Control Court has taken into account the abysmally low rent of Rs.210/- per month which was being paid for the petition schedule shop room from the year 1994 onwards, and found that the petition schedule shop room 5 R.C.(Rev) .No 169 of 2022 having a floor area of 16 sq.meters, is situated in a prime locality of Cherthala town, and that the factors like consumer price index, escalation of cost of living etc during the period of 40 years from the commencement of the lease arrangement, warranted an enhancement of rent to Rs.2,000/- per month. There is absolutely no reason to interfere with the findings of the Rent Control Court in the above regard, which has been upheld by the Appellate Authority. 9. The fact that the rent in respect of the petition schedule shop room is in arrears, is admitted by the revision petitionertenant. True that he had put forward a contention that the above accumulation of rent arrears happened from 01.02.2011 onwards due to the refusal of the respondent-landlord to accept the rent. The contention of the revision petitioner-tenant in the above regard cannot be given any credence since there is absolutely nothing on record to show that he has resorted to Section 9 of the Act towards sending the rent amount through money order to the landlord or depositing it in an account as envisaged under the above provision. It has been held by this Court in **Bhaskaran Assan v. Ammukutty Amma [1992 (2) KLT 565 : 1992 (2) KLJ 603]** 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 6 R.C.(Rev) .No 169 of 2022 ## receipt to the tenant. Paragraph 6 of the aforesaid decision reads ## as follows: “6. S.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 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 S.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 S.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 S.11(2) of the Act.” 10. 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 7 R.C.(Rev) .No 169 of 2022 accumulation of rent arrears. Needless to say that the findings of the Appellate Authority and Rent Control Court on this score, are perfectly sound. 11. As regards the bona fide need projected by the respondent-landlord, the Rent Control Court and Appellate Authority held that the evidence adduced by her through the oral testimony as PW1 would convincingly bring out her requirement to have the petition schedule shop room for conducting a Ladies Store. There is absolutely no reason to view the above ground stated by the respondent-landlord with suspicion. 12. 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 169 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. ## 13. 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. ## 14. 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. ## 15. **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 9 R.C.(Rev) .No 169 of 2022 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 but, of course, subject to the first and second provisos to Section 11(3). ## 16. 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. 17. As regards the onus of proving requirements of provisos 1 and 2 of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, it is well-settled that it is upto the tenant to bring out 10 ## R.C.(Rev) .No 169 of 2022 the requisite particulars through convincing evidence, for seeking the protection of the said provisos. 18. Following various earlier decisions of this Court, it has been held by a Division Bench of this Court in **Chethil Tharemmal** **Rasheeda v. Peedikayilakath Muhammad [2021 (6) KHC** **723]** , in which one among us, (Anil K. Narendran, J.) was a party, that the burden to prove the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, is on the tenant. So also, in **Aboobacker.C.P v. K.T.Sreelatha Nambiar** (supra) it has been held that it is the absolute burden of the tenants to prove both limbs of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. 19. Thus, it has to be held that Rent Control Court as well as the Appellate Authority rightly applied the principles of law in the above regard to the facts and circumstances of this case and arrived at the finding that respondent-landlord is entitled to have possession of the petition schedule shop room on the ground of bona fide need as envisaged under Section 11(3) of the Act. 20. The Rent Control Court as well as the Appellate Authority relied on the evidence adduced by the respondent-landlord through Ext.C1 commission report and the oral testimony of the Advocate 11 R.C.(Rev) .No 169 of 2022 Commissioner who was examined as PW2, towards arriving at the conclusion that the petition schedule shop room was kept unoccupied for a period of more than six months prior to the institution of the R.C.P. The evidence of the KSEB Engineer who was examined as PW3 with regard to the inability of the Meter Reader of the KSEB to take the reading from the consumer meter installed in the petition schedule shop room since it was kept closed, is also adverted in the impugned order and judgment of the Rent Control Court and Appellate Authority. It is after analysing the above evidence that the Rent Control Court and Appellate Authority arrived at the finding that the revision petitioner-tenant is liable to be evicted from the petition schedule shop room on the ground of cessation of occupation as well. 21. The proposition of law in this matter has been laid down by the Apex Court in **Dunlop India Limited v. A.A.Rahna and Another [(2011) 5 SCC 778]** wherein it has been held in paragraph No.17 of the said decision as follows: “17. The word "occupy" used in S.11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the Court may presume that he has ceased to occupy the building or 12 R.C.(Rev) .No 169 of 2022 abandoned it. If the building is let out for business or commercial purpose, complete cessation of the business / commercial activity may give rise to a presumption that the tenant has ceased to occupy the premises. In either case, legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was reasonable cause for his having ceased to occupy the building.” 22. Following the above decision of the Apex Court, a Division Bench of this Court in **Mahesh Babu v. Kuttiyil Meethal Moidu** **[2017 (5) KHC 254]** observed in paragraph 6 of that order as follows: “6. On the basis of Ext.C1 report, the Rent Control Court found that the petitioner could not discharge his initial burden and that the respondent ceased to occupy the petition schedule building on the date of filing the petition. In the appeal, on the other hand, the Appellate Authority meticulously analyzed the Commission report particularly in view of the statutory requirements constituting ground of eviction under S.11(4)(v) of the Act. The Appellate Authority has relied on Liji Agencies v. Raghunath, 2012 (1) KHC 604 : 2012 (1) KLT 665 : 2012 (1) KLJ 621 wherein this Court held that occupation in the context of S.11(4)(v) with respect to a commercial building means occupation by conducting of business and not a mere physical presence in the shop. In view of the above decision the Appellate Authority held that the word 'occupy' has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. We find that the above view by the Appellate Authority is supported by the decision of this Court in Mathai Antony v. 13 R.C.(Rev) .No 169 of 2022 Abraham, 2004 KHC 1107 : 2004 (3) KLT 169 : 2004 (2) KLJ 379, wherein it is held that the word 'occupy' in the context of S.11(4) (v) has to be understood in the light of object and purpose of the Rent Control Act in mind. Further it was held that the word 'occupy' in certain context indicates mere physical presence but in other context, actual enjoyment. We are of the opinion that as far as a commercial occupation is concerned, mere physical presence without conducting the business will not satisfy the requirement constituting ground of eviction under S.11(4)(v) of the Act. The Appellate Authority is justified in analyzing the evidence on record in view of the legal proposition held above.” 23. Thus, there is absolutely no reason to interfere with the findings of the Rent Control Court and Appellate Authority, on the basis of the evidence on record, that the cessation of occupation of the petition schedule shop room by the tenant is brought out, warranting order of eviction under Section 11(4)(v) of the Act. 24. 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 six months’ time for the revision petitioner to vacate the petition schedule shop room. The learned counsel for the respondent-landlord opposed the above request stating the reason that such a long period of time would cause 14 ## R.C.(Rev) .No 169 of 2022 further hardship and sufferings to the respondent-landlord who has been prosecuting this proceedings for the eviction of the revision petitioner-tenant right from the year 2012. Having regard to the submissions of the learned counsel for the revision petitioner and the learned counsel for the respondent-landlord on the above aspect, we feel it proper to grant a period of three months’ time to the revision petitioner-tenant to vacate the petition schedule shop room, if he is ready to abide by the terms and conditions enumerated hereafter in the concluding portion of this order. 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 three months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondent-landlord, 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 he will surrender vacant possession of the petition schedule building to the respondent-landlord within three 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 15 R.C.(Rev) .No 169 of 2022 that he shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; - (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 respondent-landlord will be at liberty to proceed with the execution of the order of eviction. (sd/-) ## **ANIL K. NARENDRAN, JUDGE** (sd/-) **G. GIRISH, JUDGE** jsr