K. T. Damodharan v. Sreejith and Laveena

## **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 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 R.C.REV. NO. 189 OF 2020** **AGAINST THE JUDGMENT DATED 13.12.2019 IN R.C.A.NO.51 OF 2018 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VATAKARA AND THE ORDER DATED 17.01.2018 IN R.C.P.NO.90 OF 2016 OF THE RENT CONTROL COURT (MUNSIFF), VATAKARA** ## **REVISION PETITIONER:** ## **K.T.DAMODHARAN,** **AGED 66 YEARS, S/O. CHATHU, DHARSANAM, THATTOLIKKARA, CHOMBALA POST, KUNNUMMAKKARA AMSOM, THATTOLIKKARA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS. K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENTS:** - **1 SREEJITH** **AGED 53 YEARS, S/O. CHOYI, KIZHAKKE THOOVATTKANDI, AZHIYUR AMSOM, CHOMBALA DESOM, CHOMBALA POST, VATAKARA TALUK, KOZHIKODE DISTRICT.** **2 LAVEENA, AGED 45 YEARS, W/O. SREEJITH, KIZHAKKE THOOVATTKANDI, AZHIYUR AMSOM, CHOMBALA DESOM, CHOMBALA POST, VATAKARA TALUK, KOZHIKODE DISTRICT.** 2 R.C.Rev.No.189 of 2020 **BY ADVS.** **P.B.KRISHNAN** **P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER B.ANUSREE** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.189 of 2020 ## **O R D E R** ## Anil K.Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.90 of 2016 on the file of the Rent Control Court (Munsiff), Vatakara, a petition filed by the respondents herein-landlords under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the petition schedule shop room, which is situated in the first floor of a building covered by document No.954/2015 of the Sub Registrar Office, Alathur. The bona fide need projected in the Rent Control Petition, for seeking an order of eviction under Section 11(3) of the Act, is that the landlord who needs the petition schedule shop room for conducting a DTP centre. Before the Rent Control Court, the tenant opposed the order of eviction by filing counter. On the side of the landlord, he was examined as PW1. Both sides have not chosen to adduce any documentary evidence. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected in the Rent Control Petition 4 R.C.Rev.No.189 of 2020 for seeking an order of eviction under Section 11(3) of the Act is bona fide; that the first proviso to Section 11(3) of the Act is not attracted in the facts of the case; and that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. By the order dated 17.01.2018, the Rent Control Petition was allowed by granting an order of eviction under Section 11(3) of the Act and the tenant is directed to put the landlord in vacant possession of the petition schedule shop room, within four months. 2. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.51 of 2018 before the Rent Control Appellate Authority (Additional District Judge), Vatakara, invoking the provisions under Section 18(1) (b) of the Act. That appeal ended in dismissal by the order dated 13.12.2019. Challenging the judgment of the Appellate Authority in R.C.A.No.51 of 2018 and the order of the Rent Control Court in R.C.P.No.90 of 2016, the tenant is before this Court in this Rent Control Revision, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 5 R.C.Rev.No.189 of 2020 3. On 05.11.2020, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued notice to the respondents by speed post. 4. On 10.09.2021, when this Rent Control Revision came up for consideration, in I.A.No.1 of 2020 this Court granted an interim stay of the operation of the order in R.C.P.No.90 of 2016 of the Rent Control Court, Vatakara, confirmed in R.C.A.No.51 of 2018 of the Rent Control Appellate Authority, Vatakara, for a period of one month. 5. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondents-landlords. 6. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the judgment dated 13.12.2019 in R.C.A.No.51 of 2018 of the Rent Control Appellate Authority, whereby the order of eviction granted by the Rent Control Court in the order dated 17.01.2018 in R.C.P.No.90 of 2016 stands confirmed. 7. Section 11 of the Act deals with eviction of tenants. 6 R.C.Rev.No.189 of 2020 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 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 7 R.C.Rev.No.189 of 2020 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 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 8 ## R.C.Rev.No.189 of 2020 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 **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. 10. The need projected in the rent control petition for seeking an order of eviction under Section 11(3) of the Act is that the 1[st] respondent-landlord, who is conducting a photostat shop in a rented premises on the first floor. The landlord of that shop room has already filed a petition against the 1[st] respondent claiming enhancement of rent. In such circumstances, the 1[st] respondent needs the petition schedule shop room for the purpose of conducting business. 11. The need projected in the rent control petition for seeking an order of eviction under Section 11(3) of the Act is 9 R.C.Rev.No.189 of 2020 proved by the oral testimony of the landlord, who was examined as PW1. After considering the pleadings and evidence on record, the Rent Control Court and the Appellate Authority concurrently found that the need projected by the landlord for seeking an order of eviction under Section 11(3) of the Act is bona fide. The said finding is neither perverse nor patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the Act. 12. 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. 13. In **M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC 355]** the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law 10 R.C.Rev.No.189 of 2020 laid down in **Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141]** , wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question. 11 R.C.Rev.No.189 of 2020 14. In **Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21]** the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its non- 12 R.C.Rev.No.189 of 2020 occupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises. 15. In **Vasantha Mallan** , relying on the law laid down by the Apex Court in **M.L. Prabhakar [(2001) 2 SCC 355]** the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be 13 R.C.Rev.No.189 of 2020 taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for nonoccupation of the premises for his alleged needs. 16. Insofar as the first proviso to Section 11(3) of the Act is concerned, the tenant has not discharged his initial burden. In such circumstances, the Rent Control Court as well as the Appellate Authority concurrently found that the provisions under the first proviso to Section 11(3) of the Act has no application to the facts of the case on hand. 17. As per the second proviso to Section 11(3) of the Act, 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. 14 R.C.Rev.No.189 of 2020 18. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016** **(1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he 15 R.C.Rev.No.189 of 2020 failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 16 R.C.Rev.No.189 of 2020 19. Insofar as the second proviso to Section 11(3) of the Act is concerned, the tenant has not chosen to mount the box to adduce evidence in support of his claim for protection under the second proviso to Section 11(3) of the Act. In such circumstances, in the absence of any reliable evidence, the Rent Control Court and the Appellate Authority cannot be found fault with in arriving at a conclusion that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. 20. Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 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 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 17 ## R.C.Rev.No.189 of 2020 order in reference thereto as it thinks fit. As per sub-section (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. 21. 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 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 18 R.C.Rev.No.189 of 2020 - 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. ## 22. 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. 19 R.C.Rev.No.189 of 2020 23. 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 reappreciate 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 20 R.C.Rev.No.189 of 2020 substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 24. 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 21 R.C.Rev.No.189 of 2020 confined to find out legality, regularity and propriety of the order impugned before it. 25. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter 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. 26. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the order of eviction passed by the Rent Control Court under Section 11(3) of the Act, which now stands confirmed by the Appellate Authority, is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 22 R.C.Rev.No.189 of 2020 20 of the Act. Therefore, we find no reasons to interfere with the order of eviction granted by the authorities below. 27. The learned counsel for the petitioner-tenant would submit that the tenant may be given ten months' time to give vacant possession of the petition schedule shop room. 28. On the above request made by the learned counsel for the petitioner-tenant, the learned counsel for the respondents-landlords 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. 29. The learned counsel for the tenant would submit that the tenant is 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 he gives vacant possession of the petition schedule shop room to the landlord. 23 R.C.Rev.No.189 of 2020 30. In such circumstances, this Rent Control Revision is dismissed declining interference on the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, which stands confirmed by the Appellate Authority; however by granting eight months time to the petitionertenant, to surrender vacant possession of the petition schedule shop room to the respondents-landlords, 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 petitioners-landlords within eight months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room; - (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 24 ## R.C.Rev.No.189 of 2020 - of this order, and shall continue to pay rent for every succeeding month, without any default; - (iii) Needless to say that, 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 petitioners-landlords 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