MADAPPURAYIL HARIS v. MADAPPURAYIL NAZREEN

## **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 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 R.C.REV.NO. 114 OF 2022** **AGAINST THE JUDGMENT DATED 22.02.2022 IN R.C.A.NO.175 OF 2015 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), THALASSERY AND THE ORDER DATED 29.09.2015 IN R.C.P.NO.273 OF 2013 OF THE RENT CONTROL COURT (PRINCIPAL** ## **MUNSIFF), KANNUR** ## **REVISION PETITIONER:** ## **MADAPPURAYIL HARIS,** **AGED 71 YEARS, S/O. HASSAN KUNHI, AL JASEERA OFFSET PRINTERS, LABHA THERUVU, FORT ROAD, KANNUR-670 005.** **BY ADVS. V.V.SURENDRAN P.A.HARISH** ## **RESPONDENT:** ## **MADAPPURAYIL NAZREEN** **AGED 49, D/O. ISMAIL HAJI, RESIDING AT NASWAH, YATHEEMKHANA ROAD, KAKKAD, KANNUR- 670005.** **BY ADV C.H.ABDUL RASAC (CAVEATOR) SRI ABDUL RAOOF PALLIPATH - RESPONDENT** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.114 of 2022 ## **O R D E R** ## Ajithkumar, J. The petitioner is the respondent-tenant in R.C.P.No.273 of 2013 on the file of the Rent Control Court (Principal Munsiff), Kannur. The respondent-landlord filed the Rent Control Petition seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The RC.P. was allowed. The appeal preferred under Section 18(1)(b) of the Act as R.C.A.No.175 of 2015 by the petitioner did not succeed. Challenging the judgment of the Appellate Authority dated 22.02.2022 and the order of the Rent Control Court dated 29.09.2015, this Revision under Section 20 of the Act has been filed. 2. Today, when this matter has come up for admission, we heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 3. The Rent Control Petition was filed along with R.C.P.No.277 of 2013. The respondent-landlord contended that for her son to use it as a godown for stocking plywood 3 R.C.Rev.No.114 of 2022 and allied articles for the partnership business, to which he is a partner she needs the petition schedule premises in R.C.P.No.273 of 2013. The petition schedule shop room in R.C.P.No.277 of 2013 was sought to be evicted for the son of the respondent to use it as the office of his business concern, which is now accommodated in the rented premise. Both R.C.Ps. were tried together. The respondent as well as his son Sri.Nadish M., for whom vacant possession of the petition schedule premises has been claimed, was examined as PWs.1 and 2. RWs1 and 2 are the tenants. RW2 is the petitioner herein. Exts.A1 to A10, B1 to B14 and Exts.C1 to C5 were marked. The petitioner has examined RW3 also in order to prove the contention that the petitioner has spent about Rs.17 lakhs for the renovation of the petition schedule premises. After considering the said evidence, the Rent Control Court held that the respondent proved the need she had urged and that the petitioner was not entitled to get the benefit of the second proviso to Section 11(3) of the Act. Accordingly, eviction was ordered. 4 R.C.Rev.No.114 of 2022 4. Before the Appellate Authority, the petitioner took up similar contentions. The Appellate Authority, after considering the evidence in detail, concluded that there was no reason to unsettle the findings of the Rent Control court. Accordingly, the appeal was dismissed. 5. The learned counsel appearing for the petitioner would contend that the courts below did not consider the contention raised by the petitioner, which would belie the bona fides of the claim for eviction of the petitioner. PW2 wanted to use the petition schedule premises as a godown, essentially to store plywoods and allied products. But the partnership firm to which he claims to be a partner is involved in the business of PVC sheets and allied products, for which alone the firm had obtained a licence. If so, it is contended that the claim for the petition schedule premises to store plywood and allied articles has to be termed as a false claim. 6. Ext.A8 is the certificate of registration obtained in the name of the firm from the Commercial Taxes Department. Ext.A7 is a copy of the partnership deed. If the firm is 5 R.C.Rev.No.114 of 2022 involved in the business of PVC boards alone, there was absolutely no reason for stocking plywoods and in that view of the matter, the learned counsel sought to decline the claim for eviction of the petitioner from the petition schedule premises. 7. The learned counsel for the petitioner further contended that the premises in the possession of the petitioner comprise a front office and area on the hind side. It is on the ground floor and vacant rooms are available on the 1[st] floor. It is contended that if the area of tenanted premises is available to the respondent, the upstairs rooms should be allotted to the petitioner. But the courts below did not consider the said contentions raised by the petitioner. 8. The learned counsel appearing for the respondent, on the other hand, would contend that even now the partnership firm of PW2 has been doing trade in plywood sheets and related articles. Therefore, the need urged by the respondent is very genuine and honest. It is also contended that the entire area including the 1[st] -floor rooms required for the use of the firm. 6 R.C.Rev.No.114 of 2022 9. The petitioner tried to prove through his own oral testimony and also the evidence of RW3 that the building was practically reconstructed by him by spending about Rs.17 lakhs and also that he invested a huge amount for erecting the printing press. Highlighting the said facts, he contended that he was entitled to get permanent tenancy in respect of the petition schedule premises. That contention was turned down by both the authorities holding that the relationship between the parties will be governed by Ext.A1 rent agreement, which is dated 4.5.1993. Once the parties entered into Ext.A1 rent agreement, which is not disputed, the relationship between the parties could be governed only by the terms of that document. It is a lease arrangement and as such the petitioner cannot claim any permanent tenancy in respect of the petition schedule premises. 10. Even if it is true that the petitioner had spent a huge amount for establishing his business, that cannot be a reason for avoiding eviction by the landlord, if one of the grounds in Section 11 of the Act is established. The facts that 7 R.C.Rev.No.114 of 2022 PW2 is a partner of M/s Pradil Promoters and the said firm has been conducting business in PVC boards and related articles are not disputed. PW1, the husband of the landlady, deposed before the court that the petition schedule premises is required for his son, PW2, to use it as a godown for his business establishment, M/s Pradil Promoters. Alike is the oral testimony of PW2. It was suggested to him that the firm was having registration with the Commercial Taxes Department to carry on business in PVC boards alone, and therefore, the firm did not require any place for stocking plywood sheets. PW2 had explained why he has been longing to get the petition schedule premises. His firm is in the stage of expansion. Even now, the firm has been doing business in plywoods and allied articles. He stated that against orders for the purchase, the firm used to collect articles from other vendors and deliver them to the customers. His version that even now the firm has been doing trade in plywoods need not be disbelieved. It is proved that the firm already has registration with the Commercial Taxes Department and is doing business in 8 R.C.Rev.No.114 of 2022 building materials. So, it cannot be assumed that the firm cannot do business in plywood. When it is specifically asserted that the entire area of the petition schedule premises is required to stock the plywood and allied articles in connection with the business of the firm M/s Pradil Promoters, it is not for the tenant to insist that the area may be restricted to a part. It is the option of the landlord since he is the person to decide the volume and nature of his business. In the said circumstances, it is unable to accede to the contentions of the petitioner that the need urged by the respondent was not proved to be bona fide. 11. 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 9 R.C.Rev.No.114 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. 12. 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 10 R.C.Rev.No.114 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. 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 11 R.C.Rev.No.114 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 to 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. In the light of the proposition of law in the aforesaid decisions, the court should ensure that the need urged by the respondent is sincere, honest and genuine if to 12 R.C.Rev.No.114 of 2022 order eviction. Both the courts below after appreciating the evidence on record came to the concurrent finding that the need urged by the respondent is bona fide. We do not find any reason to interfere with the said finding. 15. Evidence is let in to show that the respondent has other vacant buildings in her possession. But the evidence does not show that any vacant building or room that can be used for the projected purpose of PW2 is available with the respondent. The petitioner contended that he as well as his 17 employees are depending for their livelihood on the income derived from the printing press business in the petition schedule premises. Thereby he claims the benefit of the second proviso to Section 11(3) of the Act. 16. 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 13 R.C.Rev.No.114 of 2022 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 view regarding the burden of proof has been approved by the Apex Court in **Kunhamma @ Lakshmi** **Ammas Children and another v. Akkali Purushothaman and others [(2007) 11 SCC 181]** , where it was observed, “From a perusal of the judgment of the Full Bench of the Kerala High Court reported in Francis v. Sreedevi Varassiar [2003 (2) KLT 230] we observe that the onus lies on the tenant to prove that he was dependent on the income derived from the business being carried on from the demised premises and that there was no other suitable building to which he could shift his business.” 17. Exts.B2 to B14 are the documents produced by the petitioner. But none of the documents is relating to the income being derived by him from the business in the petition 14 R.C.Rev.No.114 of 2022 schedule premises. Therefore, the evidence available to prove the ingredients of the second proviso to Section 11(3) of the Act is his oral testimony alone. Both the courts below after considering his oral testimony in detail found that the said evidence was insufficient to prove the ingredients of the second proviso to Section 11(3) of the Act, including nonavailability of alternative building in the locality. The said finding is also based on proper appreciation of the evidence. In the said circumstances, we uphold the finding that the petitioner is not entitled to get the benefit of the second proviso to Section 11(3) of the Act. 18. 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 the entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot 15 R.C.Rev.No.114 of 2022 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. 19. 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 16 R.C.Rev.No.114 of 2022 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. 20. 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. 21. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment 17 ## R.C.Rev.No.114 of 2022 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. 22. The learned counsel for the petitioner has made a request to afford eight months' time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. The learned counsel for the respondent conceded that a reasonable time may be granted since a press using heavy machinery is functioning in the tenanted premises. 23. Having considered all the aspects, we deem it appropriate to grant eight 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-landlady within eight months 18 R.C.Rev.No.114 of 2022 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 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