Mahroof Padannayil v. Rehna Aboobacker

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943** **RCREV. NO. 116 OF 2021** **AGAINST THE JUDGMENT DATED 17.12.2020 IN R.C.A.NO.103 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE - II), KOZHIKODE, ARISING OUT OF THE ORDER DATED 30.03.2019 IN R.C.P.NO.142 OF 2016 OF THE RENT CONTROL COURT (ADDL. MUNSIFF-I), KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **MAHROOF PADANNAYIL AGED 51 YEARS S/O. MOOSAKKOYA, ROOM NO. 15/1085, VALAPPIL HOUSE, KUTHUKALLU, KALLAI P.O, NAGARAM AMSOM DESOM, KOZHIKODE.** **BY ADV K.S.HASEENA** ## **RESPONDENT/RESPONDENT/PETITIONER:** **REHNA ABOOBACKER, AGED 50 YEARS W/O. ABOOBACKER, CHERIYA ARAKKAL, KASABA AMSOM DESOM, KOZHIKODE, REPRESENTED BY MALIEKKAL AKBAR, AGED 57 YEARS, S/O. ABDULLA KOYA SEYANAS, MAITHRI ROAD, THRUVANNUR, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- RCREV. NO. 116 OF 2021 ## **ORDER** ## Anil K. Narendran, J. The petitioner is the respondent-tenant in R.C.P.No.142 of 2016 on the file of the Rent Control Court (Addl. Munsiff-I), Kozhikode, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Act, seeking eviction of the tenant from the petition schedule shop room. The bona fide need projected in the Rent Control Petition was that of the landlord to start a mini supermarket by joining all the four rooms in a line-building, in which the petition schedule shop room is situated on the southern-most side. In the Rent Control Petition, it was alleged that the tenant has kept rent of the petition schedule shop room in arrears from July, 2014 onwards. Before the Rent Control Court, the tenant filed counter statement opposing the order of eviction sought for. The tenant contended that there is no arrears of rent as alleged. The landlord is a Dermatologist, who is running a clinic at Kallayi Road, Kozhikode. The tenant contended that the bona fide need projected in the Rent Control Petition is not genuine. The tenant is depending on the income derived from -3- RCREV. NO. 116 OF 2021 the business conducted in the petition schedule shop room for his livelihood and no other building is available in the locality for conducting such business. 2. Before the Rent Control Court, the landlord was examined as PW1 and Exts.A1 to A3 were marked on the side of the landlord. The tenant was examined as RW1. The report, sketch and photograph submitted by the Advocate Commissioner were marked as Exts.C1, C1(a) and C1(b), respectively and he was examined as CW1. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the landlord has succeeded in proving the bona fide need projected in the Rent Control Petition. On the first and second proviso to Section 11(3) of the Act, the finding of the Rent Control Court was against the tenant. Accordingly, the Rent Control Court passed an order of eviction under Section 11(3) of the Act, directing the respondent-tenant to put the petitioner-landlord in vacant possession of the petition schedule shop room within one month from the date of that order and the landlord was found entitled to realise the cost of the petition from the tenant. The -4- RCREV. NO. 116 OF 2021 order of eviction sought for under Section 11(2)(b) of the Act was declined. 3. Challenging the order of eviction passed by the Rent Control Court, the tenant filed R.C.A.No.103 of 2019 before the Rent Control Appellate Authority. By the judgment dated 17.12.2020, the Appellate Authority dismissed that appeal, thereby confirming the order of eviction passed by the Rent Control Court, under Section 11(3) of the Act. 4. Challenging the judgment dated 17.12.2020 of the Rent Control Appellate Authority in R.C.A.No.103 of 2019 and the order dated 30.03.2019 of the Rent Control Court in R.C.P.No.142 of 2016, the petitioner-tenant is before this Court in this Rent Control Revision filed under Section 20 of the Act. 5. Heard the learned counsel for the petitioner-tenant. 6. The issue that arises for consideration in this Rent Control Revision is as to whether the judgment dated 17.12.2020 of the Rent Control Appellate Authority in R.C.A.No.103 of 2019 and the order dated 30.03.2019 of the Rent Control Court in R.C.P.No.142 of 2016 warrant -5- RCREV. NO. 116 OF 2021 interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 7. 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. 8. In **Adil Jamshed Frenchman v. Sardur Dastur** -6- RCREV. NO. 116 OF 2021 **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. 9. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a -7- RCREV. NO. 116 OF 2021 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. 10. The bona fide need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act was that the landlord wants to conduct a mini supermarket after joining all the four rooms in the linebuilding, including the petition schedule shop room, which is on the southern-most side of that building. The bona fide need projected in the Rent Control Petition was proved by the oral testimony of the landlord, who was examined as PW1. In the order of the Rent Control Court dated 30.03.2019, it was noticed that, during cross examination, the tenant could not discredit the oral testimony of PW1, insofar as the bona fide need projected in the Rent Control Petition is concerned. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the landlord succeeded in proving the bona fide need projected in the Rent Control Petition. That finding of the Rent Control Court stands -8- RCREV. NO. 116 OF 2021 confirmed by the Appellate Authority in its judgment dated 17.12.2020 in R.C.A.No.103 of 2019. The reasoning of the Rent Control Court and that of the Appellate Authority in the impugned order/judgment is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 11. 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. 12. The Rent Control Court as well as the Appellate Authority found that the first proviso to Section 11(3) of the Act has no application, since the bona fide need projected in the Rent Control Petition is that for starting a mini supermarket by joining all the four rooms in the line-building, including the petition schedule shop room, which is on the southern-most side. Insofar as the other three rooms are concerned, the landlord filed R.C.P.Nos.140, 141 and 143 of -9- RCREV. NO. 116 OF 2021 2016. In paragraph 10 of the judgment, the Appellate Authority has specifically dealt with all those issues. The finding of the Rent Control Court and that of the Appellate Authority that the first proviso to Section 11(3) of the Act is not attracted in the facts of the instant case is neither perverse nor patently illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 13. As per the second proviso to Section 11(3) of the Act, 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. 14. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on -10- RCREV. NO. 116 OF 2021 the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section -11- RCREV. NO. 116 OF 2021 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 15. Regarding the second proviso to Section 11(3) of the Act, the Advocate Commissioner reported the existence of other vacant rooms near the petition schedule shop room. The report of the Advocate Commissioner and the oral testimony of CW1 stands uncontroverted. The tenant, who was examined as RW1, could not prove that he is depending for his livelihood -12- RCREV. NO. 116 OF 2021 mainly on the income derived from the business conducted in the petition schedule shop room. No documents were produced to substantiate income derived from the business conducted in the petition schedule shop room. One of the contentions raised by the landlord was that the tenant is working as a Porter in the railway station, who seldom comes to the petition schedule shop room. On the date of inspection by the Advocate Commissioner, the tenant was not present in the petition schedule shop room. Therefore, the Rent Control Court and also the Appellate Authority concluded that the tenant has not succeeded in proving that he is entitled to get the protection of the second proviso to Section 11(3) of the Act. The aforesaid finding of the Rent Control Court and that of the Appellate Authority is neither perverse nor patently illegal, warranting an interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 16. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the -13- RCREV. NO. 116 OF 2021 District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion. 17. 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 reappreciated 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 -14- RCREV. NO. 116 OF 2021 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. 18. In **T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different -15- RCREV. NO. 116 OF 2021 finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 19. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, -16- RCREV. NO. 116 OF 2021 notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 20. 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 -17- RCREV. NO. 116 OF 2021 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. 21. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to - be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 22. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the judgment of the Appellate Authority in R.C.A.No.103 of 2019 and the order of the Rent Control Court in R.C.P.No.142 of 2016 is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the -18- RCREV. NO. 116 OF 2021 Act. Therefore, we find no reason to interfere with the order of eviction passed against the petitioner-tenant under Section 11(3) of the Act, which now stands as confirmed by the Rent Control Appellate Authority. 23. The learned counsel for the petitioner-tenant would submit that the tenant is conducting a meat shop in the petition schedule room and considering the situation prevailing in the country on account of COVID-19 pandemic, he may be given at least three months' time to give vacant possession of the petition schedule shop room. It is also submitted that there is no arrears of rent till date and that, the tenant shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule shop room to the landlord. 24. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority; however by granting three months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the r espondent-landlord, considering the situation -19- RCREV. NO. 116 OF 2021 ## prevailing in the Country on account of COVID-19 pandemic, 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 three 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 respondenttenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the -20- RCREV. NO. 116 OF 2021 time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitionerlandlord will be at liberty to proceed with the execution of the order of eviction. Sd/- **ANIL K.NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** AV/17/9