K Hussain v. Kamasseri Mathurakuzhi Mammedkutty

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944 R.C.REV.NO. 120 OF 2018** **AGAINST THE JUDGMENT DATED 22.11.2017 IN R.C.A.NO.45 OF 2015 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), MANJERI AND THE ORDER DATED 29.07.2015 IN R.C.P.NO.46 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), MANJERI REVISION PETITIONER:** ## **K HUSSAIN** **AGED 72, S/O.KARUPATH MUHAMMED HAJI, CHERUVAYOOR AMSOM DESOM, CHERUVAYOOR P.O., KONDOTTY TALUK, MALAPPURAM DISTRICT.** **BY ADV SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT:** **KAMASSERI MATHURAKUZHI MAMMEDKUTTY, S/O.VEERANKUTTI HAJI, CHERUVAYOOR AMSOM** **DESOM,CHERUVAYOOR P.O., KONDOTTY TALUK,MALAPPURAM DISTRICT, REP. BY POWER OF ATTORNEY HOLDER SHAMSAN,AGED 24, S/O.MAMMEDKUTTY, SAMSIYA MANZIL, EDASSERIPARAMBU, CHERUVAYOOR AMSOM DESOM,CHERUVAYOOR P.O., ERNAD TALUK, MALAPPURAM DISTRICT.** **BY ADV SRI.R.RANJITH (MANJERI)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 29.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.120 of 2018 ## **O R D E R** ## Ajithkumar, J. The petitioner-tenant suffered a concurrent order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent filed R.C.P.No.46 of 2013 before the Rent Control Court (Munsiff), Manjeri, seeking eviction of the petitioner. That petition was allowed as per the order dated 29.07.2015. The petitioner preferred an appeal under Section 18(1)(b) of the Act against that order as R.C.A.No.45 of 2015 before the Rent Control Appellate Authority (District Judge), Manjeri. The appeal was dismissed. Challenging the said judgment and also the order, the petitioner has preferred this Revision under Section 20 of the Act. 2. On 10.04.2018, this revision was admitted and notice was ordered to be served on the respondent. As per order in I.A.No.844 of 2018, execution of the order of eviction was stayed initially till 01.04.2019. The order of stay was extended from time to time. 3 R.C.Rev.No.120 of 2018 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. Eviction was sought on the ground that the respondent wanted to start a stationery-cum-cool bar in the petition schedule shop room. He contended that there was every possibility of losing his job abroad and that his son remains jobless. Therefore, they proposed to start a stationery-cum- cool bar business. The petitioner resisted the said claim contending that the need urged was not a bona fide one, and the intention of the respondent is to let out the room for higher rent after evicting the petitioner. It was also contended that the respondent has other rooms in his possession suitable for his purpose and that the petitioner is entitled to protection from eviction under the second proviso to Section 11(3) of the Act. 5. PW1 and RW1 were examined before the Rent Control Court. Exts.A1 to A4 were marked. PW1 is the son of the respondent. He is also the power of attorney of the 4 R.C.Rev.No.120 of 2018 respondent. RW1 is the petitioner. The Rent Control Court after considering the said evidence found that the need urged by the respondent was bona fide and the petitioner did not entitle to get the benefit of the provisos to Section 11(3) of the Act. Resultantly, eviction was ordered. 6. Before the Appellate Authority, the main contention was with respect to the need projected by the respondent. It was contended that the evidence was lacking to prove that the respondent or his son has a real intention to start a stationerycum-cool bar business. Pointing out that the evidence of PW1 was insufficient to prove that fact, the petitioner sought to set aside the order of the Rent Control Court. The Appellate Authority considered the evidence tendered by PW1 in the light of the law laid down in various decisions as to when can it be found that a need projected as a ground for eviction under Section 11(3) of the Act to be bona fide. The Appellate Authority concluded that the Rent Control Court rightly had answered the point in favour of the respondent. It is the said concurrent finding that is sought to be reversed by the petitioner. 5 R.C.Rev.No.120 of 2018 7. The learned counsel appearing for the petitioner would contend that neither the respondent nor PW1 has any experience in conducting any business and the respondent did not choose to appear before the court to give evidence and in such circumstances, evidence is insufficient to establish that the need projected to be a bona fide one. It was also pointed out that the petition schedule building was purchased by the respondent as early as 2008 and going by the oral testimony of PW1, the respondent had an intention to start the business at that time itself. When the Rent Control Petition was filed only five years thereafter, it cannot be said that the respondent has put forth the need with bona fides. 8. 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 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 6 R.C.Rev.No.120 of 2018 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 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 7 R.C.Rev.No.120 of 2018 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 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 8 R.C.Rev.No.120 of 2018 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 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. 11. PW1 stated in detail as to why he along with his father wanted to start a stationery-cum-cool bar in the 9 R.C.Rev.No.120 of 2018 petition schedule shop room. His studies are over and he remains jobless. Although his father, the respondent, is employed abroad, there is every possibility of losing his job and coming back home. In such circumstances, it was necessary for them to start a business of their own. It is seen that in the cross-examination nothing to discredit the veracity of that version has come out. Moreover, the petitioner while examined as RW1 did not assert that PW1 has any kind of employment. In the said circumstances, there is no reason to doubt the honesty and sincerity of the respondent in urging that he along with his son, PW1, wanted to start a business in the petition schedule shop room. The petitioner did not adduce any evidence to show that the respondent has any other room of his own. In the light of the said evidence, we are of the view that the need urged by a landlord can not be doubted. Therefore, the findings rendered by the courts below in this regard are not liable to be interfered with. 12. The petitioner raised a contention claiming benefit of the second proviso to Section 11(3) of the Act, but no 10 R.C.Rev.No.120 of 2018 evidence in support thereof has been brought on record. Instead, the oral testimony of RW1 itself would show that he owns other shop rooms and that he is not depending for his livelihood solely on the income derived from the business in the petition schedule shop room. Therefore, the petitioner is not entitled to the protection of any of the provisos to Section 11(3) of the Act. 13. 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 11 R.C.Rev.No.120 of 2018 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. 14. 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 12 R.C.Rev.No.120 of 2018 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. 15. 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. 16. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the concurrent findings in the judgment 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, 13 R.C.Rev.No.120 of 2018 accordingly, dismiss it. 17. The learned counsel for the petitioner has made a request to afford six months' time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant three months’ time. 18. Having considered all the aspects, we deem it appropriate to grant three 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 petitioner-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 he shall conduct any 14 R.C.Rev.No.120 of 2018 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