K. Prakash Kammath v. Kakkottakath Valappile Purayil Naseema

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 ``` ``` RCREV. NO. 46 OF 2020 ``` ``` AGAINST THE JUDGMENT DATED 20.11.2019 IN R.C.A.NO.50 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THALASSERY ARISING OUT OF THE ORDER DATED 28.02.2017 IN R.C.P.NO.14 OF 2015 OF THE RENT CONTROL COURT (MUNSIFF), TALIPARAMBA ``` ## **`REVISION PETITIONER:`** ``` K.PRAKASH KAMMATH AGED 60 YEARS S/O. KRISHNA KAMMATH, SUNDER ELECTRONICS, NA- TIONAL HIGHWAY, TALIPARAMBA AMSOM DESOM, POST TALIPARAMBA, KANNUR DISTRICT, PIN-670 009. ``` ``` BY ADVS. P.U.SHAILAJAN SRI.V.SREEJITH (K/1398/2000) SMT.VIDYA KURIAKOSE ``` ## **`RESPONDENT:`** ``` KAKKOTTAKATH VALAPPILE PURAYIL NASEEMA D/O. SULAIMAN, TALIPARAMBA AMSOM DESOM, POST TALIPARAMBA, KANNUR DISTRICT, PIN-670 009. ``` ``` BY ADV SRI.M.SASINDRAN ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOW- ING: ``` R.C.Rev.No.46 of 2020 2 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.14 of 2015 on the file of the Rent Control Court (Munsiff), Thaliparamba, a petition filed by the respondent herein-landlady, under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenant from the petition schedule shop room. The need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act, is that of the dependent son of the landlady, who intends to start a ready-made shop in the petition schedule shop room. The tenant is conducting electronic business in the petition schedule shop room. Before the Rent Control Court, Exts.A1 to A18 were marked on the side of the landlady and her son was examined as PW1. On the side of the tenant, Exts.B1, B2 and B2(a) to B2(x) were marked and he was examined as RW1. After considering the pleadings and evidence on record, though the first and second provisos to Section 11(3) of the Act was found against the tenant, the Rent Control Court found that the need projected in R.C.P.No.14 of 2015, seeking order of eviction under Section 11(3) of the Act, is not bona fide. R.C.Rev.No.46 of 2020 3 Based on that finding, the Rent Control Court declined an order of eviction under Section 11(3) of the Act. Insofar as the order of eviction sought for under Section 11(2)(b) of Act is concerned, the tenant paid arrears of rent during the pendency of the Rent Control Petition 2. Challenging the order of the Rent Control Court dated 28.02.2017 in R.C.P.No.14 of 2015, the landlady filed R.C.A.No.50 of 2017 before the Rent Control Appellate Authority (Addl. District Judge), Thalassery, under Section 18(1)(b) of the Act. That appeal was allowed by the judgment dated 20.11.2019, whereby the Appellate Authority granted an order of eviction under Section 11(3) of the Act and the tenant was directed to surrender vacant possession of the petition schedule building to the landlady, within two months from the date of that judgment. Feeling aggrieved by the judgment dated 20.11.2019 of the Rent Control Appellate Authority in R.C.A.No.50 of 2017, the petitioner-tenant is before this Court in this Rent Control Revision, invoking the revisional jurisdiction under Section 20 of the Act. 3. On 24.02.2020, when this Rent Control Revision came R.C.Rev.No.46 of 2020 4 up for admission, this Court admitted the matter on file and issued notice to the respondent. In I.A.No.1 of 2020, this Court granted an interim order staying the operation and execution of the judgment in R.C.A.No.50 of 2017 of the Appellate Authority till 09.03.2020. The said interim order, which was extended from time to time, is still in force. 4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlady. 5. The arguments advanced by the learned counsel for the petitioner-tenant is confined on the question as to whether the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide, as found by the Appellate Authority. The learned counsel for the petitioner would contend that the need projected in the Rent Control Petition is that the son of the landlady requires the petition schedule shop room for starting a ready-made shop for his livelihood, who was examined as PW1. During cross examination of PW1, it has come out that he is having sufficient income from the textile business conducted by the family, which is a partnership business. Therefore, according to the learned R.C.Rev.No.46 of 2020 5 counsel for the petitioner, the landlady is not entitled to an order of eviction under Section 11(3) of the Act. 6. Per contra, the learned counsel for the respondentlandlady would contend that, on a proper appreciation of the pleadings and evidence on record, the Appellate Authority arrived at a conclusion that the need projected under Section 11(3) of the Act is bona fide. In view of the findings of the Rent Control Court on the first and second provisos to Section 11(3) of the Act, the Appellate Authority rightly granted an order of eviction under Section 11(3) of the Act. The finding of the Appellate Authority is neither perverse nor patently illegal, warranting interference of this Court, in exercise of the revisional jurisdiction under Section 20 of the Act. 7. 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 R.C.Rev.No.46 of 2020 6 ## 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. 8. 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 R.C.Rev.No.46 of 2020 7 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. 9. 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. The Division Bench also noticed the law laid down by the Apex Court in **Kizhakkayil Suhara v.** **Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19]** that, not merely the need of the landlord but also the need R.C.Rev.No.46 of 2020 8 of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has considered the need put forward by the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord. R.C.Rev.No.46 of 2020 9 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. 11. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2) KLJ 164]** , a Division Bench of this Court relied on the decision of the Apex Court in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** , wherein the Apex Court held that, in order to order eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in **Shiv Sarup Gupta [(1999)** **6 SCC 222]** , wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra R.C.Rev.No.46 of 2020 10 distinction with a mere desire, by the Rent Control Legislation. In **Abdul Salam v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, when the landlord has clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, if there is admission on the part of the landlord of coming into possession of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act. 12. 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 be an outcome of a sincere and honest desire of R.C.Rev.No.46 of 2020 11 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). 13. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the landlady’s son, who was examined as PW1, who wants to start a ready-made shop in the petition schedule shop room. The contention of the learned counsel for the petitioner-tenant is that, the landlady and her family are affluent, who are conducting textile business as a partnership business. Son of the landlady is getting sufficient income from that business and therefore, an order of eviction cannot be granted under Section 11(3) of the Act, based on the need projected in the Rent Control Petition that R.C.Rev.No.46 of 2020 12 the landlady’s son wants to start ready-made shop in the petition schedule shop room for his livelihood. 14. In **Gireeshbabu T.P. [2021 (5) KHC SN 30]** , one of the contentions raised by the tenant before the Rent Control Court, the Rent Control Appellate Authority and reiterated before this Court is that, since the landlords have extensive landed property and getting considerable rental income they have no genuine need for vacant possession of the petition schedule shop room for starting jewellery business and therefore, the bona fide need projected in the Rent Control Petition seeking eviction under Section 11(3) of the Act is only a ruse to evict the tenant from the petition schedule shop room. 15. In **Gireeshbabu T.P. [2021 (5) KHC SN 30]** it was noticed that, a reading of the provisions under Section 11(3) of the Act makes it explicitly clear that, the landlord can approach the Rent Control Court seeking an order of eviction, 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. The bona fide need projected in a Rent Control Petition seeking R.C.Rev.No.46 of 2020 13 eviction under Section 11(3) of the Act, for own occupation of the landlord or for the occupation by any member of his family dependent on him, need not be for the livelihood of the landlord or any member of his family dependent on him. Therefore, the fact that the landlord is an affluent person is of no consequence, if he proves the bona need for own occupation projected in the Rent Control Petition, for eviction under Section 11(3) of the Act. In **Ismail v. Kesavan [2004 (2) KLT 56]** a Division Bench of this Court, in the context of Section 11(3) of the Act, held that dependency does not mean financial dependency, but dependency for the building which belongs to the landlord. Therefore, the fact that the dependent family member of the landlord is an affluent person is of no consequence, if the landlord proves the bona need projected in the Rent Control Petition for occupation of any member of his family dependent on him, for eviction under Section 11(3) of the Act. Since the bona fide need projected in a Rent Control Petition seeking eviction of the petition schedule shop room under Section 11(3) of the Act, for starting jewellery business by the landlords need not be for their livelihood, the fact that the landlords, namely, Kuzhichalil R.C.Rev.No.46 of 2020 14 Abdurahiman and his wife Jameela have extensive landed property and getting considerable rental income is of no consequence, if they prove the bona need for own occupation projected in the Rent Control Petition. Therefore, we find no merit in the contention of the tenant that, since the landlords have extensive landed property and getting considerable rental income they have no genuine need for vacant possession of the petition schedule shop room and therefore the bona fide need projected in the Rent Control Petition is only a ruse to evict the tenant from the petition schedule shop room. 16. In **Gireeshbabu T.P. [2021 (5) KHC SN 30]** it was held 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, R.C.Rev.No.46 of 2020 15 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). 17. Viewed in the light of the law laid down in the decision referred to supra, we find no merit in the contention of the learned counsel for the petitioner-tenant that the landlady is not entitled to an order of eviction under Section 11(3) of the Act since her family is affluent, who are conducting textile business as a partnership firm with her son, getting sufficient income. The reasoning of the Appellate Authority that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide is neither perverse nor patently illegal and it cannot also be said that the Appellate Authority has committed manifest error while granting an order of eviction under Section 11(3) of the Act. 18. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any R.C.Rev.No.46 of 2020 16 aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per subsection (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion. 19. 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 reappreciating the entire evidence both oral or documentary in the R.C.Rev.No.46 of 2020 17 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. ## 20. In **T. Sivasubramaniam v. Kasinath Pujari [(1999)** **7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. R.C.Rev.No.46 of 2020 18 ## 21. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not - be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the R.C.Rev.No.46 of 2020 19 light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist. ## 22. 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 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. 23. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** c **onsidering the matter** R.C.Rev.No.46 of 2020 20 **in the backdrop of law laid down** in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to - be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 24. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed by the Rent Control Appellate Authority under Section 11(3) of the Act. 25. The learned counsel for the petitioner-tenant would submit that considering the situation prevailing in the country on account of COVID-19 pandemic, the tenant may be given at least R.C.Rev.No.46 of 2020 21 ten months' time to give vacant possession of the petition schedule shop room. 26. On the above request made by the learned counsel for the tenant, the learned counsel for the respondent-landlady would submit that a reasonable period of six months may be granted to the tenant for giving vacant possession of the petition schedule shop room, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default. 27. The learned counsel for the tenant would submit that the tenant are prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till they give vacant possession of the petition schedule shop room to the landlady. 28. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority; however by granting six months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the R.C.Rev.No.46 of 2020 22 respondent-landlady, considering the situation prevailing in the country on account of COVID-19 pandemic, 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 petitionerlandlady 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 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 R.C.Rev.No.46 of 2020 23 of the petition schedule building 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** **yd**