Joy v. Johns

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945** **RCREV. NO. 193 OF 2023** **AGAINST THE JUDGMENT DATED 12.06.2023 IN R.C.A NO.33 OF 2022 ON THE FILE OF COURT OF THE ADDITIONAL DISTRICT JUDGE-V/RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM, WHICH WAS AN APPEAL FROM THE ORDER DATED 01.04.2022 IN R.C.P NO.219 OF 2019 ON THE FILE OF THE COURT OF THE THIRD ADDITIONAL MUNSIFF AND RENT CONTROLLER, ERNAKULAM** ## **REVISION PETITIONER(APPELLANT/RESPONDENT):** **JOY AGED 74 YEARS,S/O.JACOB, CHITTILAPPILLY HOUSE, C.C 66/4773 NUMBER RENTED SHOP ROOM, M.G.ROAD, KOVILVATTOM DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, NOW RESIDING AT CHITTILAPPILLY HOUSE, KURIYACHIRA.P.O., KIRIYACHIRA NEHRU NAGAR, OLLUR VILLAGE, THRISSUR DISTRICT, PIN - 680006** **BY ADVS. P.VISHNU PRASAD AMRETHA RANI M.H.** ## **RESPONDENT(RESPONDENT/PETITIONER):** **JOHNS AGED 64 YEARS,S/O.MAANI, PULIKKOTTIL HOUSE, KEEZHOOR.P.O., KEEZHOOR DESOM, KUNNAMKULAM VILLAGE, THALAPPILLI TALUK, THRISSUR DISTRICT, PIN - 680523** **BY ADVS. P. THOMAS GEEVERGHESE TONY THOMAS (INCHIPARAMBIL)(K/810/2010) E.S.FIROS(K/555/2014) AMRUTHA K.P.(K/836/2020) SRADHA MOHAN(K/001041/2022)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 15.09.2023, THE COURT ON 19.09.2023 DELIVERED THE FOLLOWING:** 2 R.C.R No.193 of 2023 ## **O R D E R** ## P.G.Ajithkumar, J. Tenant is the revision petitioner. Respondent filed RCP No.219 of 2019 before the Rent Control Court (III Additional Munsiff), Ernakulam seeking eviction of the petitioner from petition schedule shop room under Section 11(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court ordered eviction on all the grounds and the Appellate Authority in the appeal preferred by the petitioner under Section 18 of the Act confirmed that order. Hence the petitioner filed the Revision Petition under Section 20 of the Act. 2. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. ## 3. Eviction was sought on the grounds; i) The petitioner defaulted payment of rent at the rate of Rs.35,000/- per month from June 2019 onwards. ii) Respondent is in need of the tenanted 3 R.C.R No.193 of 2023 premises for his son’s starting a dental clinic. iii) The petitioner sublet the tenanted premises to one Mr.Shabeer, and iv) The petitioner removed the wall on the southern side of the room whereby its value and utility has been materially and permanently reduced. 4. The petitioner resisted the plea for eviction. It was contended that the rate of rent was only Rs.17,000/- per month and there was no arrears of rent. The bonafides of the need urged by the respondent was challenged by contending that his son is employed and there is no need for him to start a dental clinic. The allegation of sublease is refuted by contending that Mr.Shabeer is a partner of the partnership firm which is now conducting common business in the petition schedule shop room and the adjoining room. Similarly, the allegation of material alteration is controverted by contending that what the petitioner did was only removal of a door on the southern side of the premises which, in fact, enhanced the utility of the building. 5. Before the Rent Control Court, PWs 1 to 3 and RW1 4 R.C.R No.193 of 2023 were examined. Exts. A1 to A12, B1, C1, C1(a), C1(a1) and C1(a2) were proved. After considering the said evidence, the Rent Control Court held that all the grounds urged in support of his claim for eviction were proved. The Appellate authority reappreciated the evidence in detail and found no reason to interfere with the findings of the Rent Control Court. The said concurrent findings are now called in question in this Revision Petition. 6. When both the authorities below, after appreciating the evidence reached findings which are concurrent, the powers of the Revisional Court in the exercise of the jurisdiction under Section 20 of the Act is very limited. 7. In **Kunhanpurath Balan v. Kunnummayintavita Chandran [2022 (4) KLT 711]** , this Court held; “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 v. Kallyani Sulochana [(1993) 1 SCC 499]** the Apex Court reiterated that 5 R.C.R No.193 of 2023 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 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.” 8. In regard to the allegation that the petitioner did not make payment of rent after July 2019 and the rate of rent is Rs.35,000/- per month, the evidence brought on record is the oral testimonies of respective parties and Exts.A11, the statement of the bank account of the respondent during the period from 01.01.2015 to 04.10.2019. PW1, the respondent deposed that rent at the rate of Rs.35,000/- was remitted in his account from January 2019 till June 2019, and it is reflected in Ext.A11. RW1 stated that the rent was, in fact, paid in cash and it was at the rate of Rs.17,000/-. Section 9 of the Act insists on the tenant to obtain receipt when payment of rent is made. Therefore the oral testimony of a tenant 6 ## R.C.R No.193 of 2023 unsupported by any document evidencing payment cannot be used in preference to the oral evidence of PW1, which is supported by the entries in Ext.A11 to prove the period of payment of rent and also that the rate of the rent is Rs.35,000/- per month. Therefore, the concurrent finding of the courts below that rent from July, 2019 at the rate of Rs. 35,000/- remains due is not liable to be interfered with. 9. The learned counsel appearing for the petitioner would submit that during the pendency of the proceedings, entire arrears of rent was paid and therefore there is no justification in sustaining the order of eviction under Section 11(2)(b) of the Act. Per contra, the learned counsel appearing for the respondent would submit that a few payments were made by the petitioner, but more than Rs.8 lakhs is still due towards arrears of rent. When non-payment of rent from July 2019 is proved and the respondent does not concede payment of the rent for the whole period upto the filing of the Rent Control Petition, the order of eviction on the ground of arrears of rent cannot be interfered with. If, as a matter of fact, the 7 ## R.C.R No.193 of 2023 arrears of rent was paid in whole, the petitioner can certainly invoke the provisions of Section 11(2)(c) of the Act for vacating the order of eviction on the ground of arrears of rent. 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. It was held in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** 8 ## R.C.R No.193 of 2023 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 **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 proviso to Section 11(3) of the Act. 9 R.C.R No.193 of 2023 12. PW1 categorically deposed regarding the need. His son completed his MDS. Even accepting the plea of the petitioner that the son of the respondent is employed now, his decision to start a dental clinic of his own in the petition schedule premises which belongs to his father can only be said to be his bonafide manifestation. In the light of the law laid down in the aforesaid decisions, we are of the view that there is absolutely no reason to find any impropriety or perversity in the finding of the court below in this regard. 13. PW2 is the Commissioner appointed by the Rent Control Court. She filed a report which is Ext.C1. It is appended by Ext.C1(a) Rough Sketch, and C1(a1) and C1(a2) photographs. Removal of the southern wall of the tenanted premises and thereby integrating the same with the adjoining room where Sri.Shabeer, who is the alleged sub-tenant, was conducting another shop, is reported by PW2. The petitioner was initially running a textile shop in the petition schedule shop room. After integrating this room with the adjoining room, a common business in footwears was started. In the 10 R.C.R No.193 of 2023 said premises, the respondent alleged that the petition schedule shop room was sublet to Sri.Shabeer and material alteration was carried out to the room. From the oral testimony of RW1 itself, it has come out that the southern wall of the petition schedule shop room was removed. 14. The petitioner claimed that the business now being run in both the rooms in common is the firm business to which himself and Sri.Shabeer are partners. Ext.B1 is produced to prove that fact. The partnership firm mentioned in Ext.B1 has three other partners than the petitioner and Sri.Shabeer. No other document regarding the firm business is produced before court. RW1 admitted that for the last more than two years he has had no participation in the conduct of the business. On the basis of the said evidence, the courts below held that there was subletting. The evidence certainly would show that the domain of the petitioner over the petitioner schedule room was parted by him. Thus the subletting stands established. We find no reason to hold a different view. 11 ## R.C.R No.193 of 2023 15. Removal of a wall of the petition schedule room is proved. That fact is admitted by RW1 also. By the removal of the wall exclusivity of the premises is lost and that undoubtedly is a material alteration of a permanent nature reducing the utility of the premises which is a shop room. Viewed so, the findings of the court below concerning sublease and material alteration are also devoid of any illegality or impropriety obligating this court to interfere. 16. In the light of the aforesaid findings, we see no reason to interfere with the concurrent findings of the courts below resulting in ordering eviction. The Revision Petition therefore fails. It is accordingly dismissed. Having regard to the facts and circumstances of the case as also the submissions of the learned counsel on either side, the petitioner is granted six months' time from today to surrender vacant possession of the premises on condition that he shall file an unconditional undertaking before the Rent Control Court within two weeks from today that he shall vacate the tenanted premises within six months and also that 12 R.C.R No.193 of 2023 he shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent on or before the tenth day of every succeeding month, till he vacates the premises. **Sd/P.B. SURESH KUMAR, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** PV