Lakshmi and others v. SulaiKha and others

## **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 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945 R.C.REV. NO. 143 OF 2023** **AGAINST THE JUDGMENT DATED 03.04.2023 IN R.C.A.NO.35 OF 2022 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED 29.01.2022 IN R.C.P.NO.219 OF 2016 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE-I** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** - **1 LAKSHMI AGED 85 YEARS, W/O.LATE KARUNAKARAN, 9/1140, KERALA NURSERY, ERANHIPALAM P.O., KACHERI AMSOM DESOM, KOZHIKODE TALUK, PIN – 673006.** - **2 PRABHA SURENDRAN,** - **AGED 60 YEARS, W/O.LATE SURENDRAN, 9/1140, KERALA NURSERY, ERANHIPALAM P.O., KACHERI AMSOM DESOM, KOZHIKODE TALUK, PIN – 673006.** - **3 AKASH AGED 25 YEARS, S/O.LATE SURENDRAN, 9/1140, KERALA NURSERY, ERANHIPALAM P.O., KACHERI AMSOM DESOM, KOZHIKODE TALUK, PIN – 673006.** - **4 SARAN** - **AGED 12 YEARS, S/O.LATE SURENDRAN, 9/1140, KERALA NURSERY, ERANHIPALAM P.O., KACHERI AMSOM DESOM, KOZHIKODE TALUK, PIN – 673006.** 2 R.C.Rev.No.143 of 2023 - **5 NIKITHA,** - **AGED 14 YEARS, D/O.LATE SURENDRAN, 9/1140, KERALA NURSERY, ERANHIPALAM P.O., KACHERI AMSOM DESOM, KOZHIKODE TALUK, PIN – 673006.** - **6 P.K.SADASIVAN, AGED 67 YEARS, S/O.LATE KARUNAKARAN, 1/4321, KARUNA, VALLUVANTHARA, P.M.KUTTY ROAD, ERANHIPALAM POST, KOZHIKODE, PIN – 673006.** - **7 P.K.SATHYABHAMA, AGED 64 YEARS, D/O.LATE KARUNAKARAN, VAISHNAVAM, KARURTHAZHAM, KARUVISSERY P.O., KOZHIKODE TALUK,, PIN – 673010.** - **8 SOBHANAKUMARI P.K. AGED 62 YEARS, D/O.LATE KARUNAKARAN, ROSHAN NIVAS, ANCHAPURA, PARAPPANANGADI, MALAPPURAM DISTRICT, PIN – 676303.** - **9 P.K.SUNDARESAN, AGED 60 YEARS,** - **S/O.LATE KARUNAKARAN, 'SREELAKSHMI', MADATTU THAZHAM, CHEVAYOOR P.O., KOZHIKODE, PIN – 673017.** - **10 P.K.RAJI, AGED 59 YEARS, D/O.LATE KARUNAKARAN, BAL NIVAS, THACHARAMBHATH, CHEVARAMBALAM P.O. CHEVAYOOR, KOZHIKODE, PIN – 673017.** - **11 P.K.YAMUNA, AGED 52 YEARS, W/O.LATE RAJAN, KAKKADOM KOLLOTH HOUSE, RARICHAN ROAD, ERANHIPALAM P.O., KOZHIKODE, PIN – 673006.** - **12 P.K.MURALEEDHARAN,** **AGED 51 YEARS, S/O.LATE KARUNAKARAN,** **SANTHWANAM, CHERUVAKKOD PARAMBH, NEAR ARULAPPAD KSHETHRAM, CHEVARAMBALAM, CHEVAYOOR, KOZHIKODE, PIN – 673017.** 3 R.C.Rev.No.143 of 2023 ## **BY ADVS. SRI.P.K.RAMKUMAR SUBIN P.M.** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** - **1 SULAIKHA** - **AGED 75 YEARS** **W/O.KADIRIKOYA, THRIKOVIL LANE, NAGARAM AMSOM DESOM, KUTTICHIRA POST, KOZHIKODE, PIN – 673001.** - **2 NOORJAHAN, AGED 57 YEARS,** - **D/O.KADIRIKOYA, 13/1146, THRIKOVIL LANE, NAGARAM AMSOM DESOM, KUTTICHIRA, KOZHIKODE, PIN – 673001.** - **3 SAFIYA, AGED 60 YEARS** - **D/O. ABDULLAKOYA, VALIYAVEEDU, FRANCIS ROAD, KOZHIKODE, PIN – 673001.** - **4 FATHIMA, AGED 48 YEARS,** - **D/O.KADIRIKOYA,13/1146, THRIKOVIL LANE, NAGARAM AMSOM DESOM, KUTTICHIRA, KOZHIKODE, PIN – 673001.** - **5 ABITHA, AGED 45 YEARS, D/O.KADIRIKOYA, 13/1146, THRIKOVIL LANE, NAGARAM AMSOM DESAM, KUTTICHIRA, KOZHIKODE, PIN – 673001.** - **6 KOYAMOIDEEN** - **AGED 53 YEARS, S/O.KADIRIKOYA, 13/1146, THRIKOVILLANE, NAGARAM AMSOM DESOM, KUTTICHIRA, KOZHIKODE, PIN – 673006.** 4 R.C.Rev.No.143 of 2023 **7 MUHAMMED SALIH, AGED 45 YEARS, S/O.KADIRIKOYA, 13/1146, THRIKOVIL LANE, NAGARAM AMSOM DESOM, KUTTICHIRA, KOZHIKODE, PIN – 673006.** - **8 BADARUDHEEN, AGED 35 YEARS, S/O.KADIRIKOYA, 13/1146, THRIKOVIL LANE, KUTTICHIRA P.O., NAGARAM AMSOM DESOM, KOZHIKODE TALUK,, PIN – 673006.** - **9 P.K.SATHYANATHAN,** **AGED 56 YEARS, S/O.LATE KARUNAKARAN, KERALA SEEDS AND NURSERY, KARUVASSERY P.O., KOZHIKODE, PIN – 673010.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 R.C.Rev.No.143 of 2023 ## **O R D E R** ## P.G. Ajithkumar, J. This Revision Petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is filed by the respondents in R.C.P.No.219 of 2016 before the Rent Control Court (Principal Munsiff-I), Kozhikode. The respondents herein filed the said rent control petition seeking eviction under Sections 11(2)(b) and 11(3) of the Act. That petition was allowed. The petitioners took up the matter in appeal, invoking the provisions of Section 18 of the Act, as R.C.A.No.35 of 2022. The Rent Control Appellate Authority (II Additional District Judge), Kozhikode dismissed that appeal. Hence, the petitioners have filed this Revision challenging the said judgment and the order. 2. Heard the learned counsel appearing for the petitioners in detail. 3. The petition schedule building is a tiled single storied structure. The respondents contended that the said building was let out to Sri.Karunakaran as per an agreement 6 R.C.Rev.No.143 of 2023 dated 17.03.1983 at a monthly rent of Rs.175/-. He started a Nursery under the name and style “Kerala Nursery” in that building. When Sri.Karunakaran expired, one of his legal representatives Sri.Surendran held over the tenanted premises and the rent being paid was enhanced to Rs.250/per month. The petitioners are now the tenants. They did not pay rent after September 2001. The 7[th] respondent has wife and two children. He has no building of his own to put up his residence along with his family. Therefore, the respondentslandlords wanted the petition schedule building for the bona fide own occupation of the 7[th] respondent. In such circumstances, the respondents filed R.C.P.No.219 of 2016 claiming eviction under Section 11(2)(b) and 11(3) of the Act. 4. The petitioners filed objection in the rent control petition setting forth several contentions, including denial of landlord-tenant relationship. They claimed that tenancy started on 04.03.1962 and not on 17.03.1983. It is further contended that the 1[st] respondent and Sri.Surendran entered into an agreement for sale on 17.02.2005. The petition 7 R.C.Rev.No.143 of 2023 schedule property and the land appurtenant thereto admeasuring nine cents were agreed to be sold to Sri.Surendran for a sale consideration of Rs.5,65,000/-. Rs.1,00,000/- was paid as advance sale consideration. In terms of the said agreement, Sri.Surendran was put in possession of the building and the land. Therefore, the petitioners claim that they are not liable to be evicted. The allegations regarding arrears of rent and the need urged by the respondents was stoutly denied by the petitioners. It was also urged that the respondents have other buildings in the same locality, which can be used for the need projected by them. They claimed the benefit of the second proviso to Section 11(3) of the Act by contending that respondents No.1 to 5 are depending for their livelihood on the income derived from the Nursery in the petition schedule building. 5. The Rent Control Court examined PWs1 to 3 on the side of the petitioners and RWs1 and 2 on the side of the respondents. Exts.A1 to A6 and Exts.B1 to B4 were the documents received in evidence. After considering the said 8 R.C.Rev.No.143 of 2023 evidence, the Rent Control Court held that the respondents established the grounds for eviction under Sections 11(2)(b) and 11(3) of the Act. The findings of the Rent Control Court were affirmed by the Appellate Authority after re-appreciating the evidence. 6. The learned counsel appearing for the petitioners would submit that having the tenancy, which is not only in respect of the building, but also the land appurtenant thereto, commenced on 04.03.1962, the petitioners are entitled to get fixity of tenure under the provisions of the Kerala Land Reforms Act, 1963. But the Rent Control Court did not refer that question to the Land Tribunal. Although the learned counsel tried to strongly harp upon the said contention, the same cannot be considered for the very reason that such a contention was not set forth before the trial court. In the absence of definite pleading with regard to such a claim, the same is not liable to be countenanced at this revisional stage. Therefore, we declined to consider the said contention. 9 R.C.Rev.No.143 of 2023 7. From the oral testimony of PWs.1 and 2, the contention of the respondents with respect to the arrears of rent as they contended has been established. The contention of the petitioners is one of total denial. The plea is that there is no landlord-tenant relationship in view of Ext.B1 agreement. It is a contract for sale entered into between the 1[st] respondent and Sri.Surendran, who is the pre-dedecessor in interest of the petitioners. Execution of Ext.B1 is not seriously challenged by the respondents. But it is an agreement executed by one of the co-owners and when the other co-owners do not acknowledge it, the same remains as an unenforceable contract as far as the whole of the tenanted premises is concerned. There is nothing on record to show that the possession of the petition schedule premises was converted to one in part performance of Ext.B1 sale agreement. In such circumstances, the petitioners are not entitled to deny the landlord-tenant relationship. 8. The fact that the predecessor of the petitioners came into possession as a tenant is not a disputed fact. Being 10 R.C.Rev.No.143 of 2023 the persons, who obtained possession as tenants, they are estopped from denying the landlord-tenant relationship in view of the provisions of Section 116 of the Indian Evidence Act, 1872. Therefore, the denial of tenant-landlord relationship is untenable. It follows that the petitioners defaulted payment of rent as alleged. The findings of the courts below in that regard is not liable to be interfered with. 9. PW1 is the 6[th] respondent herein. PW2 is the 7[th] respondent, for the need of whom vacant possession of the petition schedule building is claimed. Both of them deposed before the court with regard to the need they have urged. PW2 has wife and two children. Ext.A6 is his ration card. PW3 is the wife of PW2. She also deposed regarding the requirement of setting up a separate residence for their family. 10. 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 11 R.C.Rev.No.143 of 2023 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 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 R.C.Rev.No.143 of 2023 11. 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 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. 13 R.C.Rev.No.143 of 2023 12. 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. 14 R.C.Rev.No.143 of 2023 13. Viewed in the light of the law laid down in the aforesaid decisions, the evidence tendered by the respondents certainly establishes that the need urged by the respondents is a bona fide one. No illegality, irregularity or perversity can be found in the findings of the court below in that regard. Although the petitioners tried to claim the benefit of the second proviso to Section 11(3) of the Act, the same is not liable to be considered; since they are using the petition schedule building not for any trade or business. They are conducting a Nursery in the said building. Similarly, their contention that the respondents are in possession of other buildings, which could be put in use for the need they have urged, is unsupported by any evidence. In such circumstances, there is no reason to interfere with the conclusions arrived at by the courts below that an order of eviction under Section 11(3) of the Act was liable to be granted in favour of the respondents. 14. 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 15 R.C.Rev.No.143 of 2023 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 propriety of the order impugned before it. 15. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the 16 R.C.Rev.No.143 of 2023 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. 16. 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 17 R.C.Rev.No.143 of 2023 the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 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 petitioners has made a request to afford six month's time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting the Nursery. 17. Having considered all the aspects, we deem it appropriate to grant four months’ time to surrender vacant possession of the petition schedule building, subject to the following conditions: - (i) The respondents-tenants 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 they will surrender vacant possession of the petition schedule 18 R.C.Rev.No.143 of 2023 building to the petitioners-landlords within four months from the date of this order and that, they shall not induct third parties into possession of the petition schedule building and further they shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondents-tenants 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 respondents-tenants 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 building will stand cancelled automatically and the petitioners-landlords 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