Kunnath Panhikkayil Abdul Majeed v. Kunnath Panhikkayil Abdul Jabbar

# **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 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944 R.C.REV.NO. 101 OF 2020 AGAINST THE JUDGMENT DATED 14.01.2020 IN R.C.A.NO.127 OF 2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), THALASSERY AND THE ORDER DATED 30.06.2014 IN R.C.P.NO.138 OF 2013 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** **KUNNATH PANHIKKAYIL ABDUL MAJEED AGED 69 YEARS, SON OF A.T.JUNAID, RESIDING AT MAHAJA'S, CHALAD AMSOM, DESOM, CHALAD P.O., KANNUR, PIN-670 014.** **BY ADVS. S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN** ## **RESPONDENT:** **KUNNATH PANHIKKAYIL ABDUL JABBAR** **AGED 71 YEARS, S/O. A.T.JUNAID, RESIDING AT K.J.HOUSE, CHALAD P.O., KANNUR, REPRESENTED THROUGH POWER OF ATTORNEY HOLDERRISWAN.K., AGED 30 YEARS, S/O. ABDUL JABBAR, RESIDING AT K.J.HOUSE, CHALAD P.O, KANNUR, PIN-670 104.** **BY ADV SRI.P.U.SHAILAJAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 30.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.101 of 2020 ## **O R D E R** Ajithkumar, J. This is a revision petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner is the tenant. The respondent is the landlord. R.C.P.No.138 of 2013 filed by the respondent seeking eviction under Section 11(3) of the Act was allowed by the Rent Control Court (Additional Munsiff), Kannur, as per order dated 30.06.2014. The appeal preferred by the petitioner under Section 18(1)(b) of the Act as R.C.A.No.127 of 2014 was dismissed by the Rent Control Appellate Authority (Additional District Judge-I), Thalassery, as per the judgment dated 14.01.2020. That order and judgment are under challenge in this revision petition. 2. On 19.08.2020, notice was ordered to the respondent. Execution of the order of eviction was stayed for a period of eight weeks. On 10.02.2021, the revision petition was admitted. The order of stay was extended from time to time and is in force. 3. Heard the learned counsel appearing for the 3 R.C.Rev.No.101 of 2020 petitioner and also the learned counsel appearing for the respondent. 4. Ironical is the case on hand. Brothers are fighting each other as tenant and landlord. The respondent let out the building to the petitioner. The petitioner is conducting a cool bar in the petition schedule shop room. The respondent is conducting a medical shop in the adjoining room. K.J.Medical Shop and K.J.Cool Bar. The respondent filed R.C.P.No.138 of 2013 contending that his son Riswan wants to start a cool bar for which he requires petition schedule shop room. The petitioner would contend that Riswan, PW1, is involved in the business of K.J.Medicals along with his father and there is no need for him to start a cool bar. The petitioner also contended that his only source of livelihood is his cool bar business and no other suitable building is available in the locality to shift his business. On such grounds, the petitioner resisted the plea for eviction. 5. The learned counsel appearing for the petitioner would contend that having PW1 been fully engaged in the medical store business, it was quite unjust to claim eviction of 4 ## R.C.Rev.No.101 of 2020 the petitioner. It was not a need of PW1 to start a new venture. While the respondent placed reliance on the oral testimony of PW1 to prove his case, RW1, the petitioner, deposed that the need urged was not an honest one, but it is an attempt to see that the petitioner is avoided from the petition schedule shop room. RW1 does not however state that PW1 has any permanent employment or that he is incapable of conducting an independent business. In the light of the said evidence, it has to be considered whether the respondent honestly and sincerely has set forth the claim that PW1 required the building for conducting a cool bar of his own. 6. 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 5 ## R.C.Rev.No.101 of 2020 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. 7. 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 6 R.C.Rev.No.101 of 2020 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. 8. 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 7 R.C.Rev.No.101 of 2020 ## **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. 9. The petitioner is successfully conducting a cool bar in the petition schedule shop room. If the petitioner can conduct a cool bar business in the petition schedule shop room, its suitability for such a business need not be doubted. From the evidence on record, it can be seen that PW1 is also involved in the business of his father. PW1 deposed that his 8 R.C.Rev.No.101 of 2020 elder brother and father are the partners conducting the medical shop business. The fact that PW1 is assisting them in conducting the said business does not mean that he is not in need of setting up an independent business of his own. Therefore, the need urged by PW1, who does not have a permanent employment, that he wants to start a business of his own in the petition schedule shop room, can only be said to be honest or sincere. The findings of the courts below after considering the evidence on record in favour of the respondent on this point is therefore not liable to be interfered with. Those findings are fully justified in the light of the proposition of law laid down in the aforesaid decisions. 10. The learned counsel appearing for the petitioner would contend that PW1 is not a dependent of his father, the respondent, and that he has no experience in conducting a cool bar. These contentions were repelled by the courts below. PW1, who is the son, having no building of his own, looks upon his father for an accommodation to start a business of his own. It is the settled principle that dependency is with reference to the need to get a building for one's own 9 R.C.Rev.No.101 of 2020 occupation. When it is proved that PW1 does not have a building of his own, the irresistible conclusion is that he is a dependent of his father. 11. In **George T. I. v. K. L. Stanley [2013 (4) KHC 543]** this Court following a line of decisions held that prior experience is not a prerequisite for a person to start a business. It was held, “The last contention is want of previous experience. Going by the decisions of this Court and the Apex Court, previous experience cannot be insisted to test the bona fide need of the landlord, as it is not a requirement for anybody to conduct a business that he should have previous experience.” PW1 already had exposure in business, having been involved in the medical shop business being run by his father. In the said circumstances, the contention of the petitioner on lack of experience cannot be held good. 12. PW1 admitted during cross-examination that four rooms in the ground floor and two rooms in the first floor of the building also belong to the respondent. But there is no evidence to show that any of such rooms is lying vacant. 10 ## R.C.Rev.No.101 of 2020 When it is not proved that no vacant room is there in the possession of the respondent, there is no question of invoking the provisions of first proviso to Section 11(3) to deny a claim for eviction on the ground of bona fide need. 13. 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. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003 (2) KLT 230]** held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. This Court after referring to the earlier decisions on the point held in **Gireeshbabu T. P. v. Jameela and Others [2021 KHC 650]** that both limbs under the second proviso to S.11(3) of the Act are conjunctive and the burden 11 R.C.Rev.No.101 of 2020 of proof is on the tenant. 14. It is an undisputed fact that the petitioner is conducting a cool bar in the petition schedule shop room. In order to establish his claim that his only source of income is the said cool bar business, no independent evidence is brought on evidence. He as RW1 deposed that he has no other income. But no details regarding the income being derived from the petition schedule shop room are placed on record. The self-serving testimony of RW1 alone is insufficient to find that he has no other sources of income and that he can depend for his livelihood on only the income derived from the business in the petition schedule shop room. 15. The learned counsel appearing for the petitioner tried to convince us that in the absence of pointing out any particular room or building as available vacant in the locality, the assertion of RW1 is enough to prove the non-availability. It is not so. It is the burden of the tenant to prove the nonavailability of any alternative building. RW1 did not make any enquiry regarding availability of vacant buildings in the locality. He did not try to place on record any other evidence 12 ## R.C.Rev.No.101 of 2020 in the form of commission report or oral testimony of independent witnesses to prove that fact. In the said circumstances, we hold that the petitioner failed to establish that he is entitled to get the benefit of second proviso to Section 11(3) of the Act. ## 16. 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 13 R.C.Rev.No.101 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. 17. 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. 14 R.C.Rev.No.101 of 2020 18. 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 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. 19. 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. 20. The learned counsel for the petitioner has made a request to afford one year time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant six months’ time. 15 ## R.C.Rev.No.101 of 2020 21. Having considered all the aspects, we deem it appropriate to grant seven months’ time to surrender vacant possession of the petition schedule shop room, 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 petitioner-landlord within seven 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 16 ## R.C.Rev.No.101 of 2020 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 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