Madhavi, Padmini and Rajani v. Sankaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** **R.C.REV.NO.343 OF 2013** **AGAINST THE JUDGMENT DATED 13.12.2011 IN R.C.A.NO.97 OF 2010 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VADAKARA, AND ORDER DATED 07.06.2010 IN R.C.P.NO.51 OF 2009 OF RENT CONTROL COURT (MUNSIFF),** ## **VATAKARA** ## **REVISION PETITIONERS/APPELLANTS/PETITIONERS:** - **1 MADHAVI, AGED 75 YEARS, W/O.LATE KANARAN, PUTHOOR THAZHAKUNI VILLIAPPALLI AMSOM MAYYANNOOR DESOM,VATAKARA TALUK, KOZHIKODEDISTRICT.** - **2 PADMINI, AGED 47 YEARS, D/O.LATE KANARAN, PUTHOOR THAZHAKUNI VILLIAPPALLI AMSOM MAYYANNOOR DESOM,VATAKARA TALUK, KOZHIKODE DISTRICT.** - **3 RAJANI, AGED 42 YEARS, D/O.LATE KANARAN, PUTHOOR THAZHAKUNI VILLIAPPALLI AMSOM MAYYANNOOR DESOM,VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADV SRI.U.K.DEVIDAS, SRI.K.K.ANIL RAJ** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **SANKARAN, S/O.CHEKKAYI, KAPPIRIKUNIYIL HOUSE, MUTTUNGAKL AMSOM,RAYARANGATH DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673010.** **BY ADVS. B.KRISHNAN R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C. Rev. No.343 of 2013 2 ## **ORDER** ## **Anil K. Narendran, J.** The petitioners filed R.C.P.No.51 of 2009 before the Rent Control Court (Munsiff), Vadakara, under Sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondent hereintenant from the petition schedule shop room. In the Rent Control Petition it was alleged that, the tenant paid rent at the rate of Rs.1,200/- only up to November, 2005. The petitioners-landlords bona fide require the petition schedule shop room for starting tailoring and embroidery work. The tenant filed counter opposing the relief sought for in the Rent Control Petition. Before the Rent Control Court, PWs.1 and 2 were examined and Exts.A1 and A2 were marked on the side of the landlords. On the side of the tenant, RWs.1 to 3 were examined and Exts.B1 to B11 were marked. 2. After considering the pleadings and evidence on record, the Rent Control Court found that, Ext.A2 is not a valid notice as required under Section 11(2)(b) of the Act and as such, the claim of the landlords for an order of eviction under Section 11(2)(b) of the Act is not maintainable. The R.C. Rev. No.343 of 2013 3 Rent Control Court, considering the evidence on record, found that there is nothing to doubt the bona fides of the need projected by the landlords. Therefore, the need projected in the Rent Control Petition for seeking eviction under Section 11(3) of the Act is bona fide. Since there is no evidence to the effect that any vacant rooms are available in the possession of the landlords, the tenant is not entitled for the benefit under the first proviso to Section 11(3) of the Act. The Rent Control Court accepted the claim of the tenant that his main source of income for livelihood is that derived from the petition schedule shop room and that, there are no other vacant room in the locality to shift his business. Therefore, it was found that the tenant is entitled for the protection under the 2[nd] proviso to Section 11(3) of the Act. In view of the above findings, the Rent Control Court dismissed the Rent Control Petition, by the order dated 07.06.2010, declining order of eviction under Section 11(2)(b) and also under Section 11(3) of the Act. 3. Feeling aggrieved by the order of the Rent Control Court in R.C.P.No.51 of 2009, the landlords filed R.C.A.No.97 of 2010 before the Rent Control Appellate Authority R.C. Rev. No.343 of 2013 4 (Additional District Judge), Vadakara, which ended in dismissal by the judgment dated 13.12.2011. Challenging the judgment dated 13.12.2011 of the Appellate Authority in R.C.A.No.97 of 2010 and also the order dated 07.06.2021 of the Rent Control Court in R.C.P.No.51 of 2009, the landlords have filed this Rent Control Revision, under Section 20 of the Act. 4. On 25.05.2015, when this Rent Control Revision came up for admission, this Court issued notice to the respondent-tenant. 5. Heard the learned counsel for the petitionerslandlords and also the learned counsel for the respondenttenant. 6. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the judgment dated 13.12.2011 of the Appellate Authority in R.C.A.No.97 of 2010 and also the order dated 07.06.2021 of the Rent Control Court in R.C.P.No.51 of 2009, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 7. The landlords filed R.C.P.No.51 of 2009 before the R.C. Rev. No.343 of 2013 5 Rent Control Court, seeking eviction of the respondent-tenant from the petition schedule shop room, under Sections 11(2) (b) and 11(3) of the Act, i.e., on the ground of arrears of rent and bona fide need. Insofar as the ground of eviction sought for under Section 11(2)(b) of the Act is concerned, the Rent Control Court and the Appellate Authority concurrently found that, Ext.A2 is not a valid notice as required under Section 11(2)(b) of the Act and therefore, the claim of the landlords for an order of eviction under Section 11(2)(b) of the Act is not maintainable. The concurrent finding of the authorities below on the ground of eviction sought for under Section 11(2)(b) of the Act is not seriously under challenge in this Rent Control Revision. During the course of arguments, the learned counsel for the petitioners-landlords advanced arguments by confining the challenge made in this Rent Control Revision against the finding of the authorities below on the ground of eviction sought for under Section 11(3) of the Act. 8. Section 11 of the Act deals with eviction of tenants. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the R.C. Rev. No.343 of 2013 6 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. As per the third proviso to Section 11(3), no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. As per the fourth proviso to Section 11(3), if a landlord after obtaining an order to be put in possession transfers his rights R.C. Rev. No.343 of 2013 7 in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. 9. Insofar as the ground of eviction under Section 11(3) of the Act is concerned, in the order dated 07.06.2010 the Rent Control Court found that there is nothing to doubt the bona fides of the need projected by the landlords. Therefore, the Rent Control Court concluded in paragraph 11 of the order that the need of the landlords projected in the Rent Control Petition seeking eviction under Section 11(3) of the Act is bona fide. Insofar as the first proviso to Section 11(3) of the Act is concerned, in paragraph 12 of the order, the Rent Control Court noticed that, there is no evidence to the effect that any vacant rooms are available in the possession of the landlords. Though in the counter it was claimed by the tenant that the landlords have other shop rooms in Vatakara, which can be used for the intended business, there was no such contention while the tenant was in the witness box as RW1. Hence, the Rent Control Court R.C. Rev. No.343 of 2013 8 found that the tenant is not entitled for the benefit of the first proviso to Section 11(3) of the Act. 10. Though the Rent Control Court found that the need of the landlords projected in the Rent Control Petition for seeking eviction under Section 11(3) of the Act is bona fide and that, the tenant is not entitled for the benefit of the first proviso to Section 11(3) of the Act, the landlords were found not entitled for an order of eviction under Section 11(3) of the Act, since the tenant was found entitled to protection under the second proviso to Section 11(3) of the Act. In the order dated 07.06.2010, the Rent Control Court accepted the claim of the tenant that his main source of income for livelihood is that derived from the petition schedule shop room and that, there are no other vacant room in the locality to shift his business. 11. Before the Rent Control Appellate Authority, the points for consideration, insofar as the ground of eviction under Section 11(3) of the Act is concerned, are as follows; (i) whether the bona fide need alleged by the landlord is true and genuine; (ii) whether the tenant is entitled to get protection from eviction under any of the provisos to Section R.C. Rev. No.343 of 2013 9 11(3); and (iii) whether the landlords are entitled to get an order of eviction under Section 11(3) of the Act. However, in the judgment dated 13.12.2011, the Appellate Authority has not recorded its finding or conclusion as to whether the bona fide need alleged by the landlord is true and genuine. In paragraph 12 of the judgment, the Appellate Authority observed that the filing of the present Rent Control Petition, projecting the bona fide need of petitioners 2 and 3 to start tailoring and embroidery work, after the dismissal of the earlier Rent Control Petition, i.e., R.C.P.No.100 of 2006, which was confirmed by the judgment of the Appellate Authority in R.C.A.No.54 of 2008, is bit doubtful and raises serious suspicion regarding the bona fides of the need pleaded. In paragraph 13 of the judgment, the Appellate Authority observed that the claim of the landlords that they require the petition schedule shop room for starting business does not appear to be bona fide. The Appellate Authority observed further that under Section 11(10) of the Act, an order of eviction under Sections 11(3), 11(4), 11(7) or 11(8) of the Act can be ordered only on satisfaction of the court that the claim of the landlords is bona fide. R.C. Rev. No.343 of 2013 10 12. Section 11(10) of the Act provides that, claim - under sub section (3), (4), (7) or (8) should be bona fide. As per Section 11(10), the Rent Control Court shall, if it is - satisfied that the claim of the landlord under sub section (3), - (4), (7) or sub section (8) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent control Court, and if the court is not so satisfied, it shall make an order rejecting the application. As per the first proviso to Section 11(10), in the case of an application made under subsection (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. As per the second proviso to Section 11(10), the Rent control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate. 13. In **Smitha and another v. V. Krishnan [2017 (1) KHC 81]** a Full Bench of this Court held that under Section 11(3) of the Kerala Buildings (Lease and Rent R.C. Rev. No.343 of 2013 11 Control) Act the landlord has to prove that he bona fide needs the building for his own occupation or for the occupation of any member of his family dependent on him. While considering the bona fides, the Rent Control Court would consider all the facts and circumstances which may tend to show whether the need is bona fide or not. Section 11(4)(iv) provides for eviction if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction. Only if the need is bona fide under Section 11(3) and Section 11(4)(iv), an order of eviction will be passed by the Rent Control Court. The satisfaction to be arrived at by the Rent Control Court under Section 11(10) is taken care of by the proof of bona fides under Section 11(3) and Section 11(4)(iv). A further proof that the claim is bona fide need not be undertaken or insisted under Section 11 of the Act, if the bona fides under Section 11(3) or Section 11(4)(iv) is proved. That itself is the proof of the claim being bona fide. 14. In **Smitha** , the Full Bench noticed that, there is R.C. Rev. No.343 of 2013 12 not much difference between the claim being bona fide and the need being bona fide. The Legislature never wanted to put a further fetter on the right of the landlord to get an order of eviction on the ground of bona fide need under Section 11(3) or need for reconstruction under Section 11(4) (iv) by compelling the landlord to further prove that not only his need is bona fide but his claim is also bona fide. Apart from testing the bona fides under Section 11(3) or Section 11(4)(iv), as the case may be, which necessarily includes testing the bona fides in all angles, further proof of the bona fides of the claim is not required. Proof of the bona fide need or bona fide requirement under Section 11(3) and Section 11(4)(iv) is proof of bona fides of the claim under Section 11(10) as well. No further proof of the claim being bona fide need be made under Section 11(10), in the case of an application under Section 11(3) or Section 11(4)(iv), if the landlord proves bona fide need or the bona fide requirement under Section 11(3) and Section 11(4)(iv) respectively. Therefore, the Full Bench concluded that, in a claim for eviction under Section 11(3) and Section 11(4)(iv) of the Act, after proving the bona fides mentioned therein, the landlord R.C. Rev. No.343 of 2013 13 need not further satisfy the court that his claim is bona fide. 15. In **Smitha** , the Full Bench was dealing with a case in which the relief under Section 11(2)(b) of the Act was allowed by the Rent Control Court, but it was reversed by the Appellate Authority. The Appellate Authority dismissed the Rent Control Petition under Section 11(2)(b). The landlord did not file a Revision against that order. When the Revision filed by the tenants against the order under Section 11(4)(i) came up for hearing, the landlord contended that the Rent Control Petition under Section 11(2)(b) is liable to be allowed. The landlord did not file any memorandum of cross-objection nor did he file a Revision challenging the order under Section 11(2)(b). 16. In **Smitha** , one of the questions that came up for consideration before the Full Bench was as follows; By invoking the principles of Order XLI, Rule 22 of the Code of Civil Procedure, 1908 whether the landlord can support the order for eviction not only on the ground on which it was allowed but also on the ground on which order for eviction was denied to the landlord, by challenging the findings in respect of those grounds on which the c ourt or courts below R.C. Rev. No.343 of 2013 14 held against him. The Full Bench held that, a party in a Rent Control Petition is not entitled to challenge the order or judgment of the court below against him on a distinct and separate ground of eviction, in an appeal or revision filed by the opposite party challenging the order or judgment against him on another ground of eviction. In other words, though the respondent in an appeal or revision can support the ultimate conclusion on a distinct ground by even opposing the finding in respect of that ground, he cannot challenge an order on a distinct and different ground which was decided against him by the court below, while opposing the appeal or revision filed by the opposite party. Order XLI, Rule 22 of the Code or the principles thereunder can be invoked by the respondent in an appeal or revision only to support the ultimate conclusion in his favour granted by the lower authority in respect of a ground of eviction which is the subject matter of the a ppeal or revision. A respondent cannot invoke Order XLI, Rule 22 of the Code in an appeal or revision filed by the opposite party, for the purpose of getting an order in favour of the respondent on a distinct and different ground of eviction which was denied to him by the lower R.C. Rev. No.343 of 2013 15 ## authority. 17. In view of the law laid down by the Full Bench of this Court in **Smitha** , the satisfaction to be arrived at by the Rent Control Court under Section 11(10) of the Act is taken care of by the proof of bona fides under Section 11(3) of the Act. As such, a further proof that the claim is bona fide need not be undertaken or insisted under Section 11 of the Act, if the bona fides under Section 11(3) of the Act is proved. Therefore, the reasoning of the Appellate Authority that an order of eviction under Section 11(3) of the Act can be ordered only on satisfaction of the Court under Section 11(10) that the claim of the landlord is bona fide cannot be sustained in law. 18. Though, in the order dated 07.06.2010, the Rent Control Court arrived at a conclusion that the need of the landlords projected in the Rent Control Petition seeking eviction under Section 11(3) of the Act is bona fide, the principles under Order XLI, Rule 22 of the Code of Civil Procedure entitle the respondent-tenant in R.C.A.No.97 of 2010 not only to support the ultimate conclusion in his favour granted by the Rent Control Court in respect of the ground of R.C. Rev. No.343 of 2013 16 eviction under Section 11(3) of the Act, but also oppose the findings in respect of that ground on which the Rent Control Court held against him. In R.C.A.No.97 of 2010 filed by the landlord, mainly challenging the finding of the Rent Control Court on the second proviso to Section 11(3) of the Act, one of the points for consideration by the Appellate Authority was “whether the bona fide need alleged by the landlord is true and genuine”. However, in the judgment dated 13.12.2011 in R.C.A.No.97 of 2010, the Appellate Authority has not recorded a finding as to whether the need projected in the Rent Control Petition is bona fide, for granting an order of eviction under Section 11(3) of the Act. 19. In such circumstances, we have no option other than to set aside the judgment of the Rent Control Appellate Authority dated 13.12.2011 in R.C.A.No.97 of 2010 and remand the matter to that Authority for considering afresh the entitlement of the landlords for an order of eviction under Section 11(3) of the Act. 20. In the result, this Rent Control Revision is allowed by setting aside the judgment dated 13.12.2011 of the Rent Control Appellate Authority in R.C.A.No.97 of 2010, insofar as R.C. Rev. No.343 of 2013 17 the order of eviction sought for under Section 11(3) of the Act is concerned, and the Appellate Authority is directed to reconsider the entitlement of the landlords for an order of eviction under Section 11(3) of the Act and take an appropriate decision, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this order. Registry to return lower court records to the Rent Control Appellate Authority, forthwith. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** AS