Kainadath Kuniyil Praseetha v. Chathoth Raghavan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021/8TH ASWINA, 1943 RCREV. NO. 128 OF 2021** **AGAINST THE JUDGMENT DATED 07/04/2021 IN R.C.A.NO.67 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), THALASSERY, KANNUR & THE ORDER DATED 31/03/2018 IN R.C.P.NO.178 OF 2014 OF THE RENT CONTROL COURT** **(MUNSIFF), THALASSERY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **KAINADATH KUNIYIL PRASEETHA, AGED 59 YEARS D/O.PHALGUNAN, P.O.PINARAYI, THALASSERY, KANNUR DISTRICT – 670 741.** ## **BY ADV SATHEESHAN ALAKKADAN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **CHATHOTH RAGHAVAN, AGED 73 YEARS S/O.GOVINDAN, ROJA NIVAS, PANDYALA PARAMBA, P.O.MAMBRAM, KANNUR DISTRICT, PIN-670 622.** **R BY ADV.SRI RAJESH V NAIR** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- RCREV. NO. 128 OF 2021 ## **ORDER** ## Anil K. Narendran, J. The petitioner is the tenant in R.C.P.No.178 of 2014 on the file of the Rent Control Court (Munsiff), Thalassery, a petition filed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, by the respondent herein-landlord seeking eviction of the tenant from the petition schedule shop room. The bonafide need projected in the Rent Control Petition is that of the landlord's son to conduct a ready-made garments shop in the petition schedule shop room and also in the adjacent shop rooms. The tenant is occupying the petition schedule shop room on payment of a monthly rent of Rs.550/- and is conducting a tailoring shop. Before the Rent Control Court, the tenant filed counter statement opposing the order of eviction sought for under Section 11(3) of the Act. 2. Before the Rent Control Court, the landlord was examined as PW1 and the tenant was examined as RW1. The report and plan submitted by the Advocate Commissioner were marked as Exts.C1 and C2. -3- RCREV. NO. 128 OF 2021 3. After considering the pleadings and evidence on record, the Rent Control Court, by the order dated 31.03.2018 allowed R.C.P.No.178 of 2014, granting an order of eviction under Section 11(3) of the Act on a finding that the need projected by the landlord in the Rent Control Petition for an order of eviction under Section 11(3) of the Act is bonafide and that the tenant is not entitled for the protection under the first and second provisos to Section 11(3) of the Act. The tenant was directed to handover vacant possession of the petition schedule shop room to the landlord within one month from the date of that order. The tenant was also directed to pay cost of the proceedings to the landlord. 4. Challenging the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, the tenant filed R.C.A.No.67 of 2018 before the Rent Control Appellate Authority (District Judge), Thalassery under Section 18(1)(b) of the Act. The Appellate Authority by the judgment dated 07.04.2021 dismissed that appeal, thereby confirming the order of eviction granted by the Rent Control Court under Section 11(3) of the Act. Feeling aggrieved by the judgment -4- RCREV. NO. 128 OF 2021 dated 07.04.2021 of the Rent Control Appellate Authority in R.C.A.No.67 of 2018 and the order dated 31.03.2018 of the Rent Control Court in R.C.P.No.178 of 2014, the petitionertenant is before this Court in this revision, invoking the provisions under Section 20 of the Act. 5. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 6. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, which now stands confirmed by the judgment of the Rent Control Appellate Authority. 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 the first proviso to Section 11(1), nothing contained in this Section shall apply to a tenant whose landlord is the State -5- RCREV. NO. 128 OF 2021 Government or the Central Government or other public authority notified under this Act. As per the second proviso to Section 11(1), where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this Section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. 8. 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 -6- RCREV. NO. 128 OF 2021 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. As per the third proviso to Section 11(3), no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. As per the fourth proviso to Section 11(3), if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. 9. In **R.C. Thamrakar v. Nidi Lekha [(2001) 8 SCC 431]** the Apex Court observed that, it is for the landlord to -7- RCREV. NO. 128 OF 2021 decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bona fide requirement, it is unnecessary to make an endeavour as to how else the landlord could have adjusted himself. 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. As -8- RCREV. NO. 128 OF 2021 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. 11. 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. 12. The bonafide need projected in the Rent Control Petition, in order to seek eviction of the tenant from the petition schedule shop room, under Section 11(3) of the Act was that of the son of the landlord to start ready-made garment shop in the petition schedule shop room and in the adjacent shop rooms. The Rent Control Court found that the dependency of the landlord's son is pleaded and proved by the oral testimony of the landlord, who was examined as PW1. The tenant as RW1 deposed that the landlord filed two Rent -9- RCREV. NO. 128 OF 2021 Control Petitions seeking eviction of the tenants of adjacent rooms for the bona fide need of his son to start ready-made garment shop. The Rent Control Court found that the specific case of the landlord is that he need the petition schedule shop room along with adjacent shop rooms for the proposed business of his son. The tenant as PW1 admitted during cross examination that she does not know whether the son of the landlord is having a job or employment. Before the Rent Control Court nothing was brought out in evidence to show that the landlord's son is working in a courier service. After analysing the oral testimony of PW1 and RW1, the Rent Control Court concluded that the oral testimony of PW1 with regard to the bona fide need projected the Rent Control Petition stands unshaken. Therefore, the Rent Control Court found that the need projected in the Rent Control Petition seeking an order of eviction under Section 11(3) of the Act is bona fide. 13. The Appellate Authority in its judgment dated 07.04.2021 confirmed the above finding of the Rent Control Court. In support of the said conclusion the Appellate -10- RCREV. NO. 128 OF 2021 Authority relied on the law laid down in the decision of this Court in **Musthafa Haji v. Umbichi [2004 (2) KLT 110]** that non-examination of dependent son of the landlord is not fatal to a petition under Section 11(3) of the Act and the decision in **Devayani v. Pulickaparambil Hamsa Haji [1997 (1) KLJ 230]** that bona fide need can be proven even without examining the needy. The Appellate Authority has also relied on the decision of the Apex Court in **Deenanath v. Pooranlal [(2001) 5 SCC 705]** on evaluation of evidence on the bona fide need projected in the Rent Control Petition for the eviction of the tenant. 14. The reasoning of the Rent Control Court and that of the Appellate Authority in the impugned order/judgment are neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 15. As per the first proviso to Section 11(3) of the Act, 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 -11- RCREV. NO. 128 OF 2021 Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. 16. Though the burden of proof is on the tenant to prove that the landlord has another building of his own in his possession in the same city, town or village, in order to attract the first proviso to Section 11(3) of the Act, the tenant failed to substantiate the said fact by adducing cogent and convincing evidence. In the absence of any reliable materials the Rent Control Court and also the Appellate Authority rightly concluded that the first proviso to Section 11(3) of the Act has no application in the instant case. The reasoning of the Rent Control Court and also the Appellate Authority in this regard, after referring to the law laid down by the Apex Court and this Court on that point, is neither perverse or patently illegal warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 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 -12- RCREV. NO. 128 OF 2021 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. 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 for the reason that the landlord has stated that the tenant has other sources of income and he is -13- RCREV. NO. 128 OF 2021 not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he 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 -14- RCREV. NO. 128 OF 2021 to get protection under the said proviso to Section 11(3) of the Act. 19. In the absence of any reliable materials to prove that the income derived from the business conducted in the petition schedule shop room is the main source of income for the livelihood of the tenant and that, there is no other suitable building available in the locality for the tenant to carry out such business, the Rent Control Court and the Appellate Authority cannot be found fault with in concluding that the tenant is not entitled to the protection to the second proviso to Section 11(3) of the Act. 20. 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 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 -15- RCREV. NO. 128 OF 2021 propriety of such order or proceedings, and may pass such 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 cannot mean -16- RCREV. NO. 128 OF 2021 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. 23. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** -17- RCREV. NO. 128 OF 2021 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 -18- RCREV. NO. 128 OF 2021 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 confined to find out legality, regularity and propriety of the order impugned before it. 25. In **Thankamony Amma v. Omana Amma [AIR** -19- RCREV. NO. 128 OF 2021 **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, 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 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently passed by the authorities below. 27. The learned counsel for the petitioner-tenant would submit that, considering the situation prevailing in the country -20- RCREV. NO. 128 OF 2021 on account of COVID-19 pandemic, the tenant may be granted at least one year time to give vacant possession of the petition schedule shop room. 28. On the above request made by the learned counsel for the tenant, the learned counsel for the respondentlandlord would submit that, in case this Court feels that, considering the situation prevailing in the country on account of COVID-19 pandemic, the tenant has to be given a reasonable time for giving vacant possession, grant of such time shall be 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 she shall continue to pay the monthly rent for the remaining period, without any default, till she gives vacant possession of the petition schedule shop room to the landlord. 30. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned order of the -21- RCREV. NO. 128 OF 2021 Rent Control Court and 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 respondentlandlord, 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 she will surrender vacant possession of the petition schedule shop room to the petitioner-landlord within six months from the date of this order and that, she 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 three 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 respondent- -22- RCREV. NO. 128 OF 2021 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 petitionerlandlord will be at liberty to proceed with execution of the order of eviction. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **K. BABU, JUDGE** AV