Kuttiat Rayaroth Rajitha v. E.N. Sajitha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 R.C.REV.NO. 283 OF 2018 AGAINST THE JUDGMENT DATED 10.11.2017 IN R.C.A.NO.240 OF 2010 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERY AND THE ORDER DATED 17.07.2010 IN R.C.P.NO.34 OF 2007 OF THE RENT CONTROL COURT (MUNSIFF), KOOTHUPARAMBA** ## **REVISION PETITIONER:** **KUTTIAT RAYAROTH RAJITHA AGED 50 YEARS, W/O. BALACHANDRAN, NO OCCUPATION, KOLARI AMSOM, KALLOOR DESOM, THALASSERI TALUK, P.O. MATTANNUR.** **BY ADVS. PAVITHRAN K.V. JAYANANDAN MADAYI PUTHIYAVEETTIL** ## **RESPONDENT:** **E.N.SAJITHA AGED 45 YEARS, D/O VISWANATHAN, CHANDRALAYATHIL HOUSE, (NOW RESIDING AT WARD NO. IV, HOUSE NO.386 A, MATTANNUR MUNICIPALITY, KOLARI AMSOM, KALLOOR DESOM, P.O. MATTANNUR.** **BY ADV CIBI THOMAS** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 06.06.2022, THE COURT ON 21.06.2022 DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.283 of 2018 ## **O R D E R** ## Ajithkumar, J. The petitioner is the landlady. She filed R.C.P.No.34 of 2007 before the Rent Control Court (Munsiff), Koothuparamba, seeking eviction of the respondent under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was allowed as per the order dated 17.07.2010. The respondent-tenant preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery. The appeal was dismissed as per judgment dated 31.07.2015. The respondent-tenant took up the matter in revision before this Court. In R.C.Rev.No.74 of 2016, this Court set aside the judgment of the Appellate Authority and remanded the matter for fresh consideration. In the appeal, a commission report was called for as per order in I.A.No.381 of 2015. After considering the entire evidence again, the Appellate Authority allowed the appeal as per judgment dated 10.11.2017 in part. The order of eviction under Section 11(3) 3 ## R.C.Rev.No.283 of 2018 of the Act was set aside; while the order of eviction under Section 11(2)(b) of the Act was confirmed. Challenging the said judgment the petitioner-landlady has filed this revision under Section 20 of the Act. 2. On 21.08.2018, this revision was admitted to file and notice was ordered pursuant to which the respondent entered appearance through his learned Counsel. 3. The learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent are heard. 4. The order of the Rent Control Court directing eviction of the respondent under Section 11(3) of the Act was set aside by the Appellate Authority as per its judgment dated 10.11.2017. The main reason for denying eviction is that the petitioner is in possession of two other residential buildings, which were given for rent to third persons, and therefore, the provisions of the first proviso to Section 11(3) of the Act interdict the claim of the petitioner. The need urged by the petitioner is that she wanted to provide residential 4 ## R.C.Rev.No.283 of 2018 accommodation to the sister of her husband, who is dependent on her for the purpose of getting a residential accommodation. As regards the question, can PW2, being the sister-in-law be treated as a member of the family and a dependent of PW1, the landlady for the purpose of Section 11(3) of the Act, both the authorities below concurrently answered in the affirmative. 5. PW1, the petitioner, deposed in court that her husband has three sisters and all of them are residing together in their family house. PW2 is the sister-in-law of PW1, for whom the residential accommodation is intended to be provided in the petition schedule building. She also stated regarding the factual situation. It has come in evidence that the affairs of PW2, who is a widow, are being looked after by the husband of PW1. She along with her children wants a separate residence and that is the need for getting vacant possession of the petition schedule building. 6. This Court in **Prathapan v. Raman Warrier [2004 (2) KLT 559 (DB)]** took the view that brothers-in-law 5 ## R.C.Rev.No.283 of 2018 and sisters-in-law may be treated as members of the family for the purpose of Section 11(3) of the Act. We do not find any reason to deviate from the said view. The term 'members of the family' used in Section 11(3) of the Act is a flexible term. It takes shades from the facts and circumstances of each case. In the light of the evidence available in this case, it can only be said that PW2 is a member of the family of PW1, in the context of the said provision. 7. When the petitioner says that PW2 is her dependent, it needs to be understood in the light of the further assertion that all the affairs of PW2 are being taken care of by the petitioner. It only means that PW2 has to have dependency on the petitioner in order to find accommodation for her and her children. The evidence on record is to the effect that PW2 along with her children is staying in her family house, where all other members of her family are also residing. There is no evidence or even a suggestion from the respondent that PW1 or PW2 has any building of her own. In such circumstances, we are of the view that there is nothing 6 ## R.C.Rev.No.283 of 2018 wrong in the finding rendered by the courts below that PW2 is a dependent of the petitioner for the purpose of Section 11(3) of the Act. 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 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 7 ## R.C.Rev.No.283 of 2018 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 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. 8 ## R.C.Rev.No.283 of 2018 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 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 9 R.C.Rev.No.283 of 2018 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. Viewed in the light of the law laid down above it can certainly be held that the need urged by the petitioner is a genuine one. But the question is whether the petitioner has successfully furnished special reasons for not using the other building belonging to her for the projected purpose? 12. The landlady does not have a duty to plead regarding the building she owns or that are available vacant with her. But when the tenant establishes that the landlady has a building of her own, it has become the burden of the landlady to establish the special reasons for not occupying such a building, if to succeed in her plea for eviction on the 10 ## R.C.Rev.No.283 of 2018 ground of bona fide need. If it is shown that without sufficient reason the landlady avoided occupation of such a building, the claim for eviction entails rejection. 13. On allowing I.A.No.381 of 2015, the Appellate Authority deputed a Commission. Ext.C1 is the report submitted by the Commissioner. The Commissioner has reported that in the near vicinity of the petition schedule building, the landlady has two other residential buildings. It was reported that one building was let out to one Sri. Santhosh for a monthly rent of Rs.7,000/- and the other to one Sri.Firoz in 2017 for a monthly rent of Rs.8,000/-. It is true that the said buildings were let out subsequent to the institution of the rent control proceedings. Being subsequent events, whether the said evidence has any effect on this proceedings is another question. 14. 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 11 ## R.C.Rev.No.283 of 2018 satisfied that for special reasons, in any particular case it will be just and proper to do so. 15. 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 the first proviso to Section 11(3) of the Act, the availability of a vacant building in his possession and to explain the 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 12 ## R.C.Rev.No.283 of 2018 not require the landlord to plead that he is in possession of any vacant building and has special reasons for its nonoccupation. It is up to the tenant alone to take up the contention and prove that the landlord is in vacant possession of premises. 16. 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 a 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 13 ## R.C.Rev.No.283 of 2018 of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be 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 non occupation of the premises for his alleged needs. 17. The reports of the Commissioner as per Ext.C1 are not challenged by the petitioner. There is therefore no denial that two other residential buildings came in possession of the petitioner subsequent to the institution of this proceedings and she had let out both the said buildings. It can undoubtedly be said that those are facts having an eclipsing effect on the need urged by the petitioner. Therefore, the said subsequent events have relevance insofar as the fundamental facts of the case are concerned, and liable to be considered while deciding the matter in dispute. 14 ## R.C.Rev.No.283 of 2018 18. The learned counsel appearing for the petitioner would submit that the petition schedule building has the advantage of the existence of a nearby well while the other buildings do not have such a facility. The petition schedule building is an old one, which was let out for a monthly rent of Rs.1,600/- to the respondent; whereas the other buildings were new and let out to Rs.6,000/- and Rs.7,000/-. When PW2, who is a widow, along with her two school-going children wants to put up their residence, the prime consideration is to have facility for drawing water and therefore, the petitioner schedule building for their residence is selected. It is also the contention that the petitioner can forgo the rent of Rs.1,600/- being fetched for the petition schedule building; whereas it is not conducive to put PW2 in possession of other buildings, which enure a higher rent. It is true that a tenant has no right to dictate the landlord to prefer one building to the other. 19. In **Jose N.L. v. Faisal Raj and another [2017 (2) KHC 464]** the landlord required petition schedule room 15 ## R.C.Rev.No.283 of 2018 for using it as a godown. During the eviction proceedings, a tenant in the another room vacated where another tenant was inducted. The Court held that if the landlord has made out special reasons for not occupying the shop room where new tenant was inducted, that is not a ground to deny eviction. It was also held that it is for the landlord to choose which among his buildings is to be occupied by him and the tenant has no say in it. Also it was observed that such a question always is a question of fact. 20. Here is a case where two residential buildings, quite near to the petition schedule building, are owned by the petitioner. Both the said buildings are now occupied by tenants. It cannot, therefore, be said that there is no facility for drinking water in the said building. The advantage of a nearby well, cannot be said to be a mitigating factor, in the circumstances of this case, sufficient to select the petition schedule building by the petitioner in preference to the other two buildings. 21. If the petitioner puts PW2 in possession of one of 16 ## R.C.Rev.No.283 of 2018 the said two other buildings, she naturally would lose the rent now being received. It may be noted that the petitioner has no case that the petition schedule building is a smaller one than the other two buildings. Of course, rent is less now. That rate of rent was fixed at the time of letting out it in the year 2003. That may not be its present market rent or fair rent for the tenanted premises. In view of that matter, it cannot be said that selection of the petition schedule building for the projected need is a logical one and the reasons stated are legally sustainable. In the circumstances, we are of the view that the special reasons stated by the petitioner for not occupying any one of the said two other buildings are not sufficient to avoid the mischief of the first proviso to Section 11(3) of the Act. 22. 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 17 ## R.C.Rev.No.283 of 2018 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 propriety of the order impugned before it. 23. 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 18 R.C.Rev.No.283 of 2018 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. 24. In the light of the proposition of law discussed above, the findings rendered by the Appellate Authority that the petitioner is not entitled to get an order of eviction of the respondent under Section 11(3) of the Act from the petition schedule building is not liable to be interfered with by this Court in exercise of the powers under Section 20 of the Act. It is not shown that the findings of the court below are illegal, improper or perverse. Hence, we hold that this rent control 19 R.C.Rev.No.283 of 2018 revision is devoid of merits and the same is dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr