Karimattathil K.C. Augustin v. Madathinakathu James

## **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 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 R.C.REV.NO. 59 OF 2019** **AGAINST THE JUDGMENT DATED 30.11.2018 IN R.C.A.NO.167 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED 31.07.2016 IN R.C.P.NO.2 OF 2016 OF THE RENT CONTROL COURT (MUNSIFF),** ## **PERAMBRA** ## **REVISION PETITIONER:** ## **KARIMATTATHIL K.C.AUGUSTIN** **AGED 63 YEARS, S/O.CHACKO, CHEMBANODA AMSOM, PALLIPERUVANNA DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADVS. B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT:** ## **MADATHINAKATHU JAMES** **S/O.JOSEPH, P.O.CHEMBANODA, CHEMBANODA AMSOM, PILLAPPERUVANNA DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 528.** **BY ADV SRI.A.S.SASIDHARAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.59 of 2019 ## **O R D E R** ## Ajithkumar, J. The respondent-tenant in R.C.P.No.2 of 2016 on the file of the Rent Control Court (Munsiff), Perambra, is the revision petitioner. The Rent Control Petition was filed by the respondentlandlord seeking eviction of the petitioner under Sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered under Section 11(2)(b) of the Act by the Rent Control Court. Eviction sought under Section 11(3) of the Act was declined. Hence, the respondent filed R.C.A.No.167 of 2017 under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District JudgeII), Kozhikode. The appeal was allowed and eviction was ordered under Section 11(3) of the Act also. The petitioner challenges the said judgment in this revision filed under Section 20 of the Act. 2. On 14.02.2019, this revision was admitted to file. The order of eviction was stayed initially for a period of one month. Interim order was extended from time to time and is still in force. 3 R.C.Rev.No.59 of 2019 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. Eviction was sought for the reasons that the petitioner defaulted payment of rent from September, 2013 onwards and the respondent wants vacant possession of the petition schedule shop rooms for him to conduct a grocery shop. The petition was resisted by the petitioner on several grounds. It was contended that he was never intimated about the purchase of the petition schedule shop rooms by the respondent and hence there does not exist a landlord-tenant relationship. It was one Shaju, who had an agreement with the earlier landlord, Smt.Sofiya, for the purchase of the petition schedule shop rooms. Sri.Shaju obtained a decree for specific performance also. But the sale deed was claimed to have been taken by the respondent. It was with a view of evicting the petitioner in a clandestine manner. It is incorrect that the respondent is in need of the petition schedule shop rooms. The contention that his landlord Smt.Ammini sent a 4 R.C.Rev.No.59 of 2019 quit notice to the respondent is incorrect and if at all sent, it was only a collusive one. The petitioner also claimed the benefit of the first and second proviso to Section 11(3) of the Act. 5. The Rent Control Court recorded the oral testimony of PW1 and RW1. Exts.A1 to A5 and B1 to B17 were received in evidence. 6. The landlord-tenant relationship between the petitioner and the respondent was denied essentially on the basis of a contention that the respondent never intimated the petitioner about Ext.A1 by virtue of which he claimed to have purchased the petition schedule building. There was a decree for specific performance, Ext.B12, with respect to the petition schedule shop rooms in favour of one Shaju. As per the said decree, the earlier landlord Smt.Sofiya ought to have sold the petition schedule shop rooms in favour of Sri.Shaju. Instead, Ext.A1 was taken by the respondent, which shows that Ext.A1 is a sham document. For that reason also, the petitioner alleged that the respondent did not have any right to seek eviction. 5 R.C.Rev.No.59 of 2019 7. These contentions were considered in detail by the Rent Control Court and held that there did exist a landlordtenant relationship and attornment by the petitioner to the respondent as the landlord. On the basis of that finding, the Rent Control Court ordered eviction under Section 11(2)(b) of the Act. The said order has not been challenged by the petitioner. When he allowed that order to become final, it is now not available for him to contend anymore that there is no landlord-tenant relationship. Therefore, what remains for consideration is whether the order of eviction of the petitioner under Section 11(3) of the Act is sustainable or not. 8. The respondent urged the need that he wanted to start a grocery business in the petition schedule shop rooms. He has purchased the petition schedule shop rooms as per Ext.A1 from Smt.Sofiya under whom the petitioner was the tenant, by virtue of Ext.A1 on 28.06.2013. After about three years, the respondent filed the R.C.P. He contended that he was conducting a business in grocery in a tenanted premises that belongs to Smt.Ammini. He wants to shift that business to his own building. 6 R.C.Rev.No.59 of 2019 Moreover, Smt.Ammini allegedly had demanded the respondent to surrender her room on the ground that he had already purchased the petition schedule shop rooms. Although the petitioner contended that a notice to that effect was sent by Smt.Ammini, the same was not produced before the court. 9. The allegation is that the respondent in collusion with Sri.Shaju had filed the R.C.P. Since Sri.Shaju has other buildings, he would not be able to successfully pursue a plea for eviction and therefore the respondent as his benami claims eviction. It is true that as evidenced from Ext.B11 judgment and Ext.B12 decree, Sri.Shaju had the right to get the petition schedule rooms assigned in his favour. But after execution of Ext.A1, the title of the respondent to the petition schedule shop rooms cannot be challenged as long as the said document remains valid. Only evidence in support of the allegation that the respondent colluded with Sri.Shaju to file the R.C.P. is the oral testimony of RW1. That evidence is totally insufficient to dispel the validity of Ext.A1 and the steps for eviction taken by the respondent. 7 R.C.Rev.No.59 of 2019 10. Non-production of the notice allegedly sent by Smt.Ammini to the respondent has not much relevance while considering the other facts that came on record. The respondent is conducting business in a shop room in the same building to which the petition schedule shop rooms also form a part. When the respondent, PW1, has his own shop rooms in the same building, his desire to shift his business from the rented premises to his own shop rooms cannot be said not bona fide. Even in the absence of a demand by the landlady Smt.Ammini, it is the obligation of the respondent to surrender the tenanted premises once he acquired a premises suitable for his purpose. In the circumstances, the demand for eviction of the petitioner on the ground of bona fide need can only be said to be honest and genuine. 11. Section 11 of the Act deals with the eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this 8 R.C.Rev.No.59 of 2019 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 suitable building available in the locality for such person to carry on such trade or business. 12. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court 9 R.C.Rev.No.59 of 2019 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 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 R.C.Rev.No.59 of 2019 13. 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. 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 R.C.Rev.No.59 of 2019 14. In the light of the proposition of law laid down in the aforesaid decisions, we are of the view that the Appellate Authority rightly had found the need urged by the respondent bona fide. We find no reason to interfere with the same. 15. The petitioner has not placed any evidence before the court to show that the respondent has any room of his own, except the petition schedule shop rooms. Therefore, the first proviso to Section 11(3) of the Act has no application in this case. Coming to the second proviso to Section 11(3) of the Act, the findings of the Appellate Authority are that the petitioner could not prove both limbs. 16. The admission of RW1 that he has a coconut dryer unit was highlighted and on observing that despite that the petitioner failed to produce any document with respect to the income which he has been drawing from the business in the petition schedule shop rooms, it was found that the evidence was insufficient to prove that he can depend on the income from the petition schedule shop rooms alone for his livelihood. Except for the _ispe dixit_ of RW1, there is no evidence 12 R.C.Rev.No.59 of 2019 regarding the non-availability of other buildings or rooms in the locality. No commission was taken out. The oral testimony of RW1 in this regard is not meticulous. When PW1, the petitioner pointed out the availability of several rooms in the area, the burden of the petitioner in that aspect can be discharged only if reliable evidence is let in. But the petitioner did not venture to adduce any independent evidence in that regard. Hence, the finding of the Appellate Authority that the petitioner is not entitled to the benefit of the second proviso to Section 11(3) of the Act cannot be said to be incorrect or perverse. Therefore, the said finding is also not liable to be interfered with by this Court invoking the jurisdiction under Section 20 of the Act. 17. Viewed so, 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. 18. The learned counsel for the petitioner has made a 13 R.C.Rev.No.59 of 2019 request to afford one year's time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his bakery business. The learned counsel for the respondent is agreeable to grant a reasonable time by this Court. 19. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop rooms, 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 rooms to the petitioner-landlord within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; 14 R.C.Rev.No.59 of 2019 - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop rooms will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr