Kaithayil Anil Kumar v. Shineeja

## **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 1[ST] DAY OF APRIL 2022 / 11TH CHAITHRA, 1944 R.C.REV.NO.60 OF 2022** **AGAINST THE ORDER DATED 22.01.2022 IN R.C.A.NO.856 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), KOZHIKODE AND THE ORDER DATED 28.11.2019 IN R.C.P.NO.131 OF 2015 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF-I), KOZHIKODE REVISION PETITIONER:** ## **KAITHAYIL ANIL KUMAR,** **AGED 55 YEARS, S/O. CHATHU, ANIMA FANCY, TP 13/277, 13/278, THALAKULATHOOR AMSOM DESOM, KOZHIKODE TALUK.** **BY ADVS. SRINATH GIRISH V.NAMITHA P.JERIL BABU** ## **RESPONDENT:** ## **SHINEEJA,** **AGED 42 YEARS, W/O. PULLANJOLI MANIKANDAN, PULLANJOLI VEEDU, THALAKULATHUR P.O, THALAKULATHHUR AMSOM DESOM, KOZHIKODE TALUK.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.60 of 2022 ## **O R D E R** Ajithkumar, J. The respondent in R.C.P.No.131 of 2015 on the file of the Rent Control Court (Additional Munsiff-I), Kozhikode is the revision petitioner. That rent control petition was filed by the respondent herein-landlady seeking eviction of the petitionertenant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per order dated 28.11.2019, the petition was allowed. The petitioner took up the matter in appeal by filing R.C.A.No.86 of 2020 under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-IV), Kozhikode. The Appellate Authority dismissed the appeal on 22.01.2022. Challenging the said judgment as also the order of the Rent Control Court, the petitioner has filed this revision under Section 20 of the Act. 2. The respondent-landlady has let out one room to the petitioner and two rooms to another tenant, all form part of the same building. The respondent proposes to start a 3 ## R.C.Rev.No.60 of 2022 textile business along with a tailoring unit, making use of all the said rooms. Therefore, she filed the rent control petition seeking eviction of the petitioner on the ground of bona fide need. 3. The petitioner filed counter statement contending that the need urged by the respondent was not bona fide, she has no experience or skill in doing such a business, she has many sources of income, including agricultural income, and therefore, she is not required to start such a business. The petitioner claimed the benefit of the second proviso to Section 11(3) of the Act by contending that his only source of income is the business in the petition schedule shop room and that no other convenient building or room is available in the locality to shift his business. 4. R.C.P.No.131 of 2015 was tried along with R.C.P. No.132 of 2015, which was also filed by the respondent seeking eviction of the tenant in two of her rooms in the same building. Both cases were tried together and the need urged by the respondent was found to be bona fide by the Rent Control Court. 4 R.C.Rev.No.60 of 2022 5. The evidence in the case consists of oral testimonies of PW1, RW1 and RW2. Exts.A1 to A18 and B1 were marked as well. The Appellate Authority also had considered in detail the evidence in the light of the pleadings of the respective parties and held that there was no reason to interfere with the findings of the Rent Control Court. 6. When this matter came up for admission today, we heard the learned counsel appearing for the petitioner in extenso. 7. The learned counsel appearing for the petitioner would submit that the respondent really does not want to start such a business, considering her position in the society and the financial condition. She is immensely rich having multiple sources of income and a person inexperienced in any kind of business would not start such a business. It is submitted that the respondent with the ulterior motive of avoiding the present tenants only, the petitions for eviction were filed. The oral testimony of PW1, the respondent, was assailed by the learned counsel saying it is not trustworthy 5 R.C.Rev.No.60 of 2022 and insufficient to substantiate that she really intended to start such a business. Whether the need urged by the respondent is bona fide or not has to be decided not on the point of view of the tenant, but on the point of view of PW1, the landlady. The test is not whether she has other sources of income and really has a necessity to start such a business. The consideration has to be whether she has an honest, sincere and manifest intention to start such a venture, even though that may not be required for earning her livelihood. But if she has real intention to start such a business, the same has to be said bona fide. 8. 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 building if he bona fide needs the 6 R.C.Rev.No.60 of 2022 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 requirement must be an outcome of a sincere and honest 7 ## R.C.Rev.No.60 of 2022 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 proposition of law that the need put forward by the landlord 8 R.C.Rev.No.60 of 2022 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 deposed in detail regarding her proposal to start the business. She had undergone training in tailoring. She is now undertaking tailoring job at her home. She would 9 R.C.Rev.No.60 of 2022 assert that since the building is available to her, she can profitably conduct a textile business, together with a tailoring unit. She has the skill and ability for the same. She has enough time to spend for the purpose as well. It was after taking into account all such matters that she decided to start the textile business, along with a tailoring unit, in the petition schedule shop room and also in the other rooms in the building belonging to her. In the light of the principles of law laid down in the decisions referred to above, the evidence tendered by PW1 is enough to show that the need urged by her is bona fide. Nothing to discredit her credibility has come out in the cross-examination. In these circumstances, the findings rendered by the courts below, after considering the evidence on record that the need urged by the respondent is a bona fide one, is not liable to be interfered with. 12. The petitioner claimed benefit of the first proviso to Section 11(3) of the Act. It is in evidence that the respondent owns other rooms in the same building; but in the light of the definite version that she proposes to put in use all those 10 R.C.Rev.No.60 of 2022 rooms to start the textile business and the tailoring unit, the first proviso to Section 11(3) of the Act cannot have application. 13. In relation to the second proviso, the petitioner gave evidence as RW1. He deposed that he is depending upon the income derived from the business in the petition schedule shop room for his livelihood. But there is a contention for the respondent that the business in the petition schedule shop room is not the sole source of his income. Self-serving testimony of RW1 alone is not enough to prove, in the above circumstances, that his only source of income is the business in the petition schedule shop room. As regards the second limb of the second proviso to Section 11(3) of the Act, no evidence was attempted to be let in. 14. 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 11 R.C.Rev.No.60 of 2022 there is no other suitable building available in the locality for such person to carry on such trade or business. 15. 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 12 R.C.Rev.No.60 of 2022 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 13 R.C.Rev.No.60 of 2022 proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 16. Insofar as the second proviso to Section 11(3) of the Act is concerned, the Rent Control Court and the Appellate Authority concurrently found that the tenant is not entitled to the protection under the said proviso. PW1 deposed that vacant rooms are available in the locality. The tenant has not let in any evidence to prove that vacant rooms available in the locality are not suitable for his business. After considering the pleadings and evidence on record, the Appellate Authority rightly confirmed the finding of the Rent Control Court on the second proviso to Section 11(3) of the Act. The finding of the Rent Control Court and the Appellate Authority on the second proviso to Section 11(3) of the Act is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 14 R.C.Rev.No.60 of 2022 17. 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 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 15 ## R.C.Rev.No.60 of 2022 propriety of the order impugned before it. 18. 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. 19. 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** 16 R.C.Rev.No.60 of 2022 **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. 20. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the 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, accordingly, dismiss it. 21. The learned counsel for the petitioner has made a request to afford nine months' time for vacating the premises pointing out the difficulty in locating another room and making necessary arrangements for shifting his business. 22. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the 17 ## R.C.Rev.No.60 of 2022 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-landlady 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 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 18 ## R.C.Rev.No.60 of 2022 schedule shop room 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** dkr