Maimoonisa H.S. and others v. Suresh M.P; Maimoonisa H.S. and others v. T. Shanthi

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ## **`THE HONOURABLE MR.JUSTICE G. GIRISH`** ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024/24TH PHALGUNA, 1945 ``` ``` RCREV.NO.137 OF 2018 ``` ``` AGAINST THE JUDGMENT DATED 04.12.2017 IN RCA NO.10 OF 2016 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, KASARAGOD ARISING OUT OF THE ORDER DATED 17.06.2016 IN RCP NO.25 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), HOSDRUG ``` ## **`REVISION PETITIONERS/RESPONDENTS/PETITIONERS:`** - **`1 MAIMOONISA H.S AGED 67 YEARS, D/O.LATE H.S. SHEIKE USMAN SAHAB,RESIDING NEAR K.T.C MAIN ROAD, KANHANGAD, P.O.KANHANGAD, HOSDURG VILLAGE, KASARGOD DISTRICT.`** - **`2 SHAHINA BEEGUM.H.S AGED 62 YEARS, D/O. LATE H.S. SHEIKE USMAN SAHAB,RESIDING NEAR K.T.C MAIN ROAD, KANHANGAD, P.O.KANHANGAD, HOSDURG VILLAGE, KASARGOD DISTRICT.`** - **`3 AFTAB AHAMED H.S AGED 60 YEARS, S/O.LATE H.S. SHEIKE USMAN SAHAB,3RD PETITIONER IN NOW EMPLOYED IN GULD AND REPRESENTED HIS BY HIS BROTHER THE 4[TH] PETITIONER INTHIYAS AHAMED H.S., RESIDING NEAR K.T.C MAIN ROAD, KANHANGAD,P.O.KANHANGAD, HOSDURG VILLAGE, KASARGOD DISTRICT.`** ``` 4INTHIYAS AHAMED H.S. AGED 58 YEARS, S/O.LATE H.S. SHEIKE USMAN SAHAB,RESIDING NEAR K.T.C MAIN ROAD, KANHANGAD, P.O.KANHANGAD, HOSDURG VILLAGE, KASARGOD DISTRICT. ``` - **`5 RAZIYA BEEGUM.H.S AGED 55 YEARS, D/O.LATE H.S. SHEIKE USMAN SAHAB,RESIDING NEAR K.T.C MAIN ROAD, KANHANGAD,`** 2 RCRev Nos.137 & 153 of 2018 ## **`P.O.KANHANGAD, HOSDURG VILLAGE, KASARGOD DISTRICT.`** ``` BY ADV SRI.T.K. VIPINDAS ``` ## **`RESPONDENT/APPELLANT/RESPONDENT:`** ``` SURESH M.P AGED 49 YEARS, S/O.KARAPPUTTI,RESIDING AT GREESHMAM HOUSE,SURESH ELECTRICAL WORKS, ROOM NO. 566(D) WARD NO.2, KANHANGAD MUNICIPALITY, NEAR K.T.C MAIN ROAD, KANHANGAD,P.O.KANHANGAD, HOSDURG VILLAGE, KASARGOD DISTRICT. 671 123 ``` ``` BY ADVS. SURESH KUMAR KODOTH SUKARNAN(K/001572/2021) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.03.2024, ALONG WITH RCRev.153 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 RCRev Nos.137 & 153 of 2018 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024/24TH PHALGUNA, 1945 ``` ``` RCREV.NO.153OF 2018 ``` ``` AGAINST THE JUDGMENT DATED 04.12.2017 IN RCA NO.11 OF 2016 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, KASARAGOD, ARISING OUT OF THE ORDER DATED 17.06.2016 IN RCP NO.26 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), HOSDRUG ``` ``` REVISION PETITIONERS/RESPONDENTS/PETITIONERS: ``` - **`1 MAIMOONISA.H.S AGED 67 YEARS, D/O.LATE H.S.SHEIKE USMAN SAHAB, RESIDING NEAR K.T.C., MAIN ROAD KANHANGAD, P.O.KANHANGAD, HOSDURG VILLAGE, KASARAGOD DISTRICT.`** - **`2 SHAHINA BEEGUM H.S. AGED 62 YEARS, D/O.LATE H.S.SHEIKE USMAN SAHAB, RESIDING NEAR K.T.C., MAIN ROAD KANHANGAD, P.O.KANHANGAD, HOSDURG VILLAGE, KASARAGOD DISTRICT.`** - **`3 AFTAB AHAMED H.S. AGED 60 YEARS, S/O.LATE H.S. SHEIKE USMAN SAHAB,3[RD] PETITIONER IS NOW EMPLOYED IN GULF AND REPRESENTED HIS BY HIS BROTHER THE 4[TH] PETITIONER INTHIYAS AHAMED H.S.,RESIDING NEAR K.T.C., MAIN ROAD KANHANGAD, P.O.KANHANGAD, HOSDURG VILLAGE, KASARAGOD DISTRICT.`** ``` 4INTHIYAS AHAMED H.S. AGED 58 YEARS, S/O.LATE H.S. SHEIKE USMAN SAHAB,RESIDING NEAR K.T.C., MAIN ROAD KANHANGAD, P.O.KANHANGAD, HOSDURG VILLAGE, KASARAGOD DISTRICT. ``` ``` 5RAZIYA BEEGUM H.S. AGED 55 YEARS, D/O.LATE H.S.SHEIKE USMAN SAHAB, RESIDING NEAR K.T.C., MAIN ROAD KANHANGAD, ``` 4 RCRev Nos.137 & 153 of 2018 ## **`P.O.KANHANGAD, HOSDURG VILLAGE, KASARAGOD DISTRICT.`** ``` BY ADV SRI.T.K. VIPINDAS ``` ## **`RESPONDENT/APPELLANT/RESPONDENT:`** ``` T.SHANTHI AGED 44 YEARS, W/O.SURESH M.P., RESIDING AT GREESHMAM HOUSE, SURESH ELECTRICAL WORKS, ROOM NO.566(D), WARD NO.2, KANHANGAD MUNICIPALITY, NEAR K.T.C., MAIN ROAD, KANHANGAD, P.O.KANHANGAD, HOSDURG VILLAGE, KASARAGOD DISTRICT-671 123. ``` ``` BY ADVS. SURESH KUMAR KODOTH SUKARNAN(K/001572/2021) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.03.2024, ALONG WITH RCRev.137 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 RCRev Nos.137 & 153 of 2018 ## **ORDER** ## **Anil K. Narendran, J.** These Rent Control Revisions filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 arise out of a common judgment dated 04.12.2014 of the Rent Control Appellate Authority (District Judge), Kasaragod in R.C.A.Nos.10 of 2016 and 11 of 2016, arising out of the order dated 17.06.2016 of the Rent Control Court (Munsiff), Hosdurg in R.C.P.Nos.25 of 2013 and 26 of 2013. The petitioners hereinlandlords filed R.C.P.Nos.25 of 2013 and 26 of 2013, under Section 11(3) of the Act, seeking eviction of the respondent in the respective Rent Control Revisions-tenant from the petition schedule shop room in the respective Rent Control Petitions. The need projected in the Rent Control Petitions, for seeking an order of eviction under Section 11(3) of the Act, is that of the husband of the 5[th] petitioner herein to start a laundry-cum-dry washroom with working space and storage in the petition schedule shop rooms. He wants to make use shop room in the ground floor, i.e, the petition schedule shop room in R.C.P.No.25 of 2013, as reception-cum-office room, and the shop room on the upstairs, i.e, the petition schedule shop room in R.C.P.No.26 of 2013, as 6 RCRev Nos.137 & 153 of 2018 storeroom-cum-working place, after providing an internal staircase. 2. Before the Rent Control Court, the respective tenants entered appearance and filed counter opposing the order of eviction sought for. On the side of the landlords, PWs 1 to 3 were examined and Exts.A1 to A15 were marked. On the side of the tenants, RWs 1 and 2 were examined and Exts.B1 to B9(a) were marked. After considering the pleadings and evidence on record, the Rent Control Court concluded that the need projected in the Rent Control Petitions for seeking an order of eviction under Section 11(3) of the Act is bona fide, that the first proviso to Section 11(3) of the Act has no application in the facts and circumstances of the case and that the tenants are not entitled to the protection under the second proviso to Section 11(3) of the Act. By a common order dated 17.06.2016, the Rent Control Court allowed R.C.P.Nos.25 of 2013 and 26 of 2013 under Section 11(3) of the Act and the tenants were directed to put the landlords in vacant possession of the petition schedule shop rooms, within a period of three months. 3. Challenging the order of eviction granted by the Rent Control Court, the tenants filed R.C.A.Nos.10 of 2016 and 11 of 7 RCRev Nos.137 & 153 of 2018 2016 before the Rent Control Appellate Authority (District Judge), Kasaragod, invoking the provisions under Section 18(1)(b) of the Act. Those appeals were allowed by a common judgment dated 04.12.2017 of the Appellate Authority, whereby the order of eviction granted by the Rent Control Court in R.C.P.Nos.25 of 2013 and 26 of 2013 stands vacated. Such a conclusion by the Appellate Authority is based on the finding that the need projected under Section 11(3) of the Act is not bona fide. However, the Appellate Authority found that the tenants are not entitled to the protection under the first and second provisos to Section 11(3) of the Act. 4. The judgment dated 04.12.2017 of the Appellate Authority in R.C.A.Nos.10 of 2016 and 11 of 2016, to the extent of holding that the need projected under Section 11(3) of the Act is not bona fide, and the consequential dismissal of R.C.P.Nos.25 of 2013 and 26 of 2013 are under challenge in these Rent Control Revisions filed by the landlords under Section 20 of the Act. 5. On 21.05.2018, when R.C.Rev.No.137 of 2018 came up for admission, this Court admitted the matter on file and issued notice to the respondent. Thereafter, on 24.05.2018, 8 RCRev Nos.137 & 153 of 2018 R.C.Rev.No.153 of 2018 was also admitted and notice was issued to the respondent. 6. Heard the learned counsel for the petitionerslandlords and the learned counsel for the respondents-tenants. 7. As already noticed, the Appellate Authority found that the tenants are not entitled to the protection under the first and second provisos to Section 11(3) of the Act. 8. The issue that requires consideration in these Rent Control Revisions is as to whether the finding of the Rent Control Appellate Authority that the need for eviction projected under Section 11(3) of the Act is not bona fide and the consequential dismissal of R.C.P.Nos.25 of 2013 and 26 of 2013 can be sustained in law. 9. Section 11 of the Kerala Buildings (Lease and Rent Control) 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 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 9 RCRev Nos.137 & 153 of 2018 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. 10. 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 10 RCRev Nos.137 & 153 of 2018 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. 11. In **Nalakath Saidali Haji v. Kalluparamba Musthafa and others [2015 (4) KHC 815]** a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in **Kizhakkayil Suhara v.** **Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19]** that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has considered the need put forward by the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same 11 RCRev Nos.137 & 153 of 2018 ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord. ## 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. ## 13. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016** **(2) KLJ 164]** a Division Bench of this Court relied on the 12 RCRev Nos.137 & 153 of 2018 decision of the Apex Court in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** , wherein the Apex Court held that, in order to order eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in **Shiv Sarup Gupta [(1999) 6 SCC 222]** , wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control Legislation. In **Abdul Salam v. Sebastian [2013** **(4) KLT 592]** , a Division Bench of this Court held that, when the landlord has clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of 13 RCRev Nos.137 & 153 of 2018 plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, if there is admission on the part of the landlord of coming into possession of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act. ## 14. In **Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a party, held 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) 14 RCRev Nos.137 & 153 of 2018 of the Act but, of course, subject to the first and second provisos to Section 11(3). 15. In **Gireeshbabu T.P. [2021 (5) KHC SN 30]** the Division Bench noticed that a reading of the provisions under Section 11(3) of the Act makes it explicitly clear that, the landlord can approach the Rent Control Court seeking an order of eviction, 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. The _bona fide_ need projected in a Rent Control Petition seeking eviction under Section 11(3) of the Act, for own occupation of the landlord or for the occupation by any member of his family dependent on him, need not be for the livelihood of the landlord or any member of his family dependent on him. Therefore, the fact that the landlord is an affluent person is of no consequence, if he proves the bona need for own occupation projected in the Rent Control Petition, for eviction under Section 11(3) of the Act. In **Ismail v. Kesavan [2004** **(2) KLT 56]** a Division Bench of this Court, in the context of Section 11(3) of the Act, held that dependency does not mean financial dependency, but dependency for the building which 15 RCRev Nos.137 & 153 of 2018 belongs to the landlord. Therefore, the fact that the dependent family member of the landlord is an affluent person is of no consequence, if the landlord proves the bona need projected in the Rent Control Petition for occupation of any member of his family dependent on him, for eviction under Section 11(3) of the Act. 16. In the instant case, the need projected in the Rent Control Petitions, for seeking an order of eviction under Section 11(3) of the Act, is that of the husband of the 5[th] petitioner herein to start a laundry-cum-dry washroom with working space and storage in the petition schedule shop rooms. Before the Rent Control Court, the 5[th] respondent herein was examined as PW1 and her husband as PW2. PW2 wants to make use shop room in the ground floor, i.e, the petition schedule shop room in R.C.P.No.25 of 2013, as reception-cum-office room, and the shop room on the upstairs, i.e, the petition schedule shop room in R.C.P.No.26 of 2013, as storeroom-cum-working place, after providing an internal staircase. After considering the pleadings and evidence on record, the Rent Control Court in the order dated 17.06.2016 found that the need projected for seeking an order of eviction under Section 11(3) of the Act is bona fide. 16 RCRev Nos.137 & 153 of 2018 17. The Appellate Authority, in the impugned judgment dated 04.12.2017 in R.C.A.Nos.10 of 2016 and 11 of 2016 reversed the above finding of the Rent Control Court that the need projected for seeking an order of eviction under Section 11(3) of the Act is bona fide. The reasoning of the Appellate Authority in paragraphs 19 to 25 of the judgment read thus; “19. The dependency on his wife which is claimed by PW2 does not stand scrutiny. By no stretch of the language can he be considered a member of the family of PW1, his wife, for it is the patriarchal system which he obviously follows. A woman in such a family system becomes a member of her husband's family after marriage and not vice versa. Only when he is a member of the family of the landlord will the question of dependency on the latter arise, be it a dependency for the building or for livelihood. 20. PW2 cannot be stated to be dependent on his wife for his livelihood. He had been in his native place since 2006 (according to himself). The eviction petition was filed in 2013. It is therefore difficult to believe that he was tied to the apron strings of his wife after his return from the Gulf. There was moreover no documentary evidence to find that he and his wife have their permanent abode in Kanhangad. The bona fide need projected by a woman who failed to prove her residence in the vicinity of the tenanted building for a husband who has his house in Thanjavur and came to Kanhangad only to testify before the court does not therefore cut ice with this Authority though it found favour with the learned Rent Control Court. The dependency of 17 RCRev Nos.137 & 153 of 2018 PW2 on PW1 for the building cannot be presumed in the light of the evidence on record. 21. Again, the rooms from which the appellants are sought to be evicted are proposed to be used for the same business by PW2. These rooms are on two floors, one beneath the other. There is no direct access from one room to the other. What is proposed by the respondents to remedy the situation is the construction of an internal staircase. This is a most impractical proposal for, it is a concrete ceiling that separates the two rooms. The building was apparently reconstructed in place of the old one nearly two decades back. The proposal for an internal staircase connecting the first floor room with the ground floor room can appeal only to the wild fantasy of the human mind. 22. PW1 is having a fractional interest in the scheduled buildings. The other co-owners have joined her in seeking eviction of the tenants. There are no pleadings that the scheduled rooms have been allotted to PW1's share so that she could accommodate her husband therein to the exclusion of other petitioners. 23. Looking at the evidence as a whole, this Authority finds that respondents have failed to present a fool-proof case under section 11(3) of the Act. It is immaterial that the relationship between the appellants and the respondents is not strained and that there could not be any oblique motive in the latter in seeking eviction. 24. The Rent Control Court has to be satisfied of the bona fides irrespective of the above fact because the appellants had clearly pleaded that the intention to start laundry cum dry wash shops is only a ruse to eject them from the 18 RCRev Nos.137 & 153 of 2018 building and the evidence on record proves them right. The finding that a landlord bona fide requires the tenanted building for his own occupation is one of fact. It must be an outcome of a sincere and honest desire which must be apparent in the facts and circumstances brought out in evidence. A court called upon to examine the bona fides of a landlord and make a judgment will have to place itself in the position of the landlord and ask to itself whether the material on record points to a natural, real, sincere and honest desire for own occupation. 25. As pointed out above, what is projected by the respondents in the present two cases is a highly unnatural and unreal desire which tends to reflect on their bona fides. This Authority therefore disagrees with the finding of the learned Rent Control Court under section 11(3) of the Act.” 18. The above reasoning of the Appellate Authority in the impugned judgment is perverse and patently illegal and it is even contrary to the law laid down by the Apex Court and this Court on the point, including the decisions referred to supra. The comments made by the Appellate Authority should have been avoided, as they are unnecessary for deciding the question as to whether the need projected for seeking eviction under Section 11(3) of the Act is bona fide. Such observations appear to be on the personal perception of the Judicial Officer who rendered that judgment, which has no role to play in the decision-making 19 RCRev Nos.137 & 153 of 2018 process in an appeal filed before the Rent Control Appellate Authority under Section 18(1)(b) of the Act, against an order of eviction granted under Section 11 of the Act. 19. In such circumstances, these Rent Control Revisions are allowed by setting aside the judgment dated 04.12.2017 of the Appellate Authority in R.C.A.Nos.10 of 2016 and 11 of 2016 to the extent of holding that the need for eviction projected under Section 11(3) of the Act is not bona fide and the consequential dismissal of R.C.P.Nos.25 of 2013 and 26 of 2013. The Appellate Authority is directed to reconsider R.C.A.Nos.10 of 2016 and 11 of 2016 filed by the landlords and pass fresh orders, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this order, excluding summer vacation. Registry to communicate a copy of this order to the Rent Control Appellate Authority, which shall list R.C.A.Nos.10 of 2016 and 11 of 2016 on **04.04.2024** . Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **G. GIRISH, JUDGE** ded