Mekkunnath Jayarajan v. Kanakkassery Surendran (R.C.Rev.No. 248 of 2019) & Mezz. R.C.Rev.No. 86 of 2022)

# **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 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944** **R.C.REV.NO. 248 OF 2019 AGAINST THE JUDGMENT DATED 04.12.2018 IN R.C.A.NO.207 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-V), KOZHIKODE AND THE ORDER DATED 30.06.2016 IN R.C.P.NO.81 OF 2014 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-II), KOZHIKODE** ## **REVISION PETITIONER:** **MEKKUNNATH JAYARAJAN** **AGED 71 YEARS, S/O. LATE APPUKUTTY, MEKKUNNATH HOUSE, CHALAPPURAM P.O, KASABA AMSOM DESOM, KOZHIKODE-673 002.** **BY ADVS. G.P.SHINOD RAM MOHAN.G. GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR** ## **RESPONDENT:** ## **KANAKKASSERY SURENDRAN** **AGED 68 YEARS, S/O. NARAYANAN, CALICUT WOOD HOUSE, KASABA AMSOM DESOM, MOORIYAD, CHALAPPURAM (P.O), KOZHIKODE-673 002.** **BY ADVS. SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL** **HEARING ON 02.06.2022, ALONG WITH R.C.Rev.86/2022, THE COURT ON 21.06.2022 DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 ## **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 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944** **R.C.REV.NO. 86 OF 2022** **AGAINST THE JUDGMENT DATED 04.12.2018 IN R.C.A.NO.207 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-V), KOZHIKODE AND THE ORDER DATED 30.06.2016 IN R.C.P.NO.81 OF 2014 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-II), KOZHIKODE** ## **REVISION PETITIONER:** ## **KANAKKASSERY SURENDRAN,** **AGED 72 YEARS, S/O.NARAYANAN, CALICUT WOOD HOUSE, KASABA AMSOM DESOM, MOORIYAD, CHALAPPURAM P.O., KOZHIKODE-673 002.** **BY ADVS. PHILIP ANTONY CHACKO ANJALY N.S.** ## **RESPONDENT:** ## **MEKKUNNATH JAYARAJAN,** **AGED 74 YEARS, S/O.APPUKUTTY, MEKKUNNATH HOUSE, CHALAPPURAM P.O., KASABA AMSOM DESOM, KOZHIKODE-673 002.** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 02.06.2022, ALONG WITH R.C.Rev.248/2019, THE COURT ON 21.06.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 ## **O R D E R** ## Ajithkumar, J. The landlord filed R.C.Rev.No.248 of 2019. The tenant filed R.C.Rev.No.86 of 2022. Both arose on the judgment of the Rent Control Appellate Authority (Additional District Judge-V), Kozhikode in R.C.A.No.207 of 2016. The respondent has filed a Cross Objection in that appeal. Since the appeal and the Cross Objection were dismissed as per the judgment dated 4.12.2018, both of them have filed these Rent Control Revisions, invoking the provisions of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. 2. The parties are hereinafter referred to as the landlord and the tenant for convenience. 3. The landlord filed R.C.P.No.81 of 2014 before the Rent Control Court (Principal Munsiff-II), Kozhikode, seeking eviction of the tenant from the petition schedule premises under Section 11(3) of the Act. The landlord sought eviction on the ground that he wants to start a business in imported and modular furniture in the petition schedule premises. The 4 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 tenant resisted the petition by filing a counter. The objections were that the rent control premises is a shed and not suitable for accommodating a showroom of modular and imported furniture. The premises is situated in an industrial area and no commercial activity is possible there. The landlord has no experience; moreover, he is an aged man, without any ability or financial capacity to start such a business. The landlord agreed to sell the said property to the tenant in 2008, which belies the bona fides of the landlord. The tenant also claimed benefit of the second proviso to Section 11(3) of the Act. 4. The Rent Control Court recorded oral testimony of PW1 and RW1. Exts.A1 to A2(3), C1 and C2 were received in evidence. After considering the said evidence, the Rent Control Court found the need projected by the landlord as bona fide. But on holding that the tenant was entitled to get the benefit of the second proviso to Section 11(3) of the Act dismissed the rent control petition. The landlord preferred an appeal under Section 18(1)(b) of the Act before the Appellate 5 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 Authority and the tenant preferred a Cross Objection challenging the finding regarding the need. As per the judgment dated 04.12.2018 the Appellate Authority dismissed both the appeal and the Cross Objection. 5. On 17.06.2019, R.C.Rev.No.248 of 2019 was admitted directing notice to the respondent-tenant. The tenant entered appearance and filed R.C.Rev.No.86 of 2022. 6. Heard the learned counsel appearing for the landlord and the learned counsel appearing for the tenant. 7. The landlord-tenant relationship is admitted. The tenant took up a contention that in 2008, he entered into an agreement with the landlord for the sale of the petition schedule premises and the appurtenant land and an amount of Rs.25,000/- was received towards advance sale consideration. The tenant stresses it more to attack the bona fides of the landlord than to deny his title to the property. PW1 deposed admitting such an agreement, but he explained that the advance amount he received was repaid and the agreement came to an end. That version has not been 6 ## R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 controverted. In the said facts and circumstances, it cannot be said that the agreement, which came into being many years before, and left it without any further action for its performance, can have any bearing either on the title of the landlord to the petition schedule premises or bona fides of the need he has urged. 8. PW1 deposed in court regarding his plan to start a furniture business. He proposes to import furniture, including modular ones from abroad, and to set up a showroom he requires the petition schedule premises. He also stated that he proposes to manufacture furniture by engaging employees. His idea is to invest Rs.30 lakhs for the purpose. He would assert that his two sons-in-law would help him and there would not be any difficulty in raising the fund. PW1 is not a person having no connection with business. It is admitted that earlier he had business in grocery. Such a person, though aged now, wants to start a new venture in his own building. It cannot be said that such a need is not an outcome of an honest and sincere desire. 7 ## R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 9. 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 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 8 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 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 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** 9 ## R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 **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 **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 10 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 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. 12. Applying the principles of law laid down in the aforesaid decision, it can only be said that the need urged by the landlord is bona fide and the concurrent finding entered into by the courts below in this regard is not illegal, irregular or improper. 13. The learned counsel appearing for the tenant would submit that the petition schedule premises is a shed-like structure and therefore not suitable for a showroom. This is situated in an industrial area having so much dust, where not many commercial activities are being taken place. Almost all the business enterprises in the area are in the sale of wood and manufacturing of furniture. Due to the proximity of the area to the river, the wood industry is concentrated there, and therefore, a furniture showroom, especially imported 11 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 furniture, cannot profitably be run in the area. The learned counsel placed reliance on the observations of the Commissioner at Ext.C1 in this regard. The admissions of PW1 have also been highlighted. 14. PW1 stated that most of the establishments in the area are wood sale depots and furniture manufacturing units. It may be noted that the Commissioner reported in Ext.C1 that in the building next to the petition schedule premises, a beauty parlour is functioning. In the manufacturing units that exist nearby, not only the manufacture but sales of furniture also is being done. There is nothing in the evidence to show that the area has been statutorily categorized as an industrial area. Only that, most of the establishments there are dealing with the sale of wood and manufacturing of wooden furniture. That is on account of the locational advantage that is, the proximity of the river. 15. It can be seen from Ext.C1 that the petition schedule premises is abutting a public road. When many furniture manufacturing units are there in the area and the 12 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 tenant himself is conducting a furniture manufacturing unit, it cannot be said that the said premises is not suitable for conducting a furniture business. 16. The structure in the petition schedule premises is a shed along with an enclosed office. There is no difficulty for the landlord to convert it into a showroom. In the absence of any statutory bar; there is no such case for him, the tenant cannot dictate to the landlord that he cannot start a furniture business in the petition schedule premises. Therefore, the said contention of the tenant is untenable. 17. The contentions of the tenant that the landlord is aged and has no experience in conducting the business were repelled by the courts below. In **George T.I. v. K.L.Stanley [2013 (4) KHC 543]** this Court following a line of decisions held that prior experience is not a prerequisite for a person to start a business. It was held, “The last contention is want of previous experience. Going by the decisions of this Court and the Apex Court, previous experience cannot be 13 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 insisted to test the bona fide need of the landlord, as it is not a requirement for anybody to conduct a business that he should have previous experience.” In view of the said principle of law, the contention of the tenant cannot be accepted. 18. Taking all such aspects into account, we are of the view that the concurrent finding of the courts below that the petitioner has every right to claim eviction of the tenant on the ground of bona fide need of the petition schedule premises for own occupation, is not liable to be interfered with by this court in the exercise of the jurisdiction under Section 20 of the Act. 19. The courts below despite finding that the need urged by the landlord was bona fide, denied eviction finding that the tenant is entitled to get the protection of the second proviso to Section 11(3) of the Act. In order to find that the tenant is depending solely on the income derived from the business in the petition schedule premises for his livelihood, an admission made by PW1 was relied on. He deposed before 14 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 the court as an answer to a question that the tenant, as well as his employees, were depending for their livelihood on the income derived from the business in the petition schedule premises. Apart from the said admission, there is absolutely nothing in evidence in this respect. There is only a vague statement in the objection as well as in the oral testimony of RW1, the tenant, that his only income for his livelihood is the income from the business in the petition schedule premises. Upon reading the entire evidence of PW1, it can be seen that PW1 innocuously said that the tenant and his employees were depending for their livelihood on the income from the business in the petition schedule premises. Such a stray sentence cannot be interpreted to mean that only income derived by the tenant and his employees is the income from the petition schedule premises, in the absence of any other evidence. 20. 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 15 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 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. 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. 21. When it is the absolute burden of the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act, his failure to bring on record even an iota of evidence with respect to the volume of business, income being derived and other documents pertaining to his business activities, he cannot fall upon the aforesaid admission alone to contend that he successfully discharged his burden with reference to the first proviso to Section 11(3) of the Act. The finding of the courts below in that regard is erroneous and is liable to be reversed. 16 ## R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 22. The Commissioner in Ext.C1 stated that in the vicinity of the petition schedule premises, no building having a three-phase connection could be located. Is it enough to find that the tenant has discharged his burden? In **Thankappan Pillai v. Sukumari Amma [1986 KLT 109]** the word 'locality' used in the second proviso to Section 11(3) has been interpreted. It was held, “As per the 1st proviso to Section 11(3) the landlord will not be entitled to claim recovery under Section 11(3) if he has another building of his own in his possession in the same city, town or village except on satisfying the court about the existence of special reasons. A different phraseology is used by the Legislature in the 2nd proviso. The words used therein are "there is no other suitable building available in the locality for such person to carry on such trade or business". So ''locality" in the 2nd proviso must be given a meaning other than city, town or village. Locality must mean a lesser extent than an area. In common parlance locality can mean a ward in a local body like Municipality or Panchayat or even a street. As per the Concise Oxford Dictionary 5[th] Edition "locality" means "thing's position, place where it is, site or scene of something". If this literal meaning is to be adopted then "building available in the locality" can only mean building in the very site where the present building is 17 ## R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 situated. This could not have been the intention of the Legislature while enacting the 2nd proviso to Section 11(3), Law Lexicon 3rd edition by Justice T. P. Mukherjee gives the meaning of locality as ''locality is a place with an area which is reasonably small and compact so that it has come to exist and be treated as one unit, a reference to which sufficiently identifies the area and the persons therein. Ordinarily, the unit has acquired a name by which it is referred and understood". Basing on decided cases it is further observed in the Law Lexicon as follows:- "The result is that ordinarily naming the village would amount to specifying the locality unless it is known in a particular case that the village specified is much too large to be treated as locality, there being smaller units within that village and having a name, which can be more appropriately called a locality. This would, therefore, be a question of fact in each case and where a village is specified in the notification under Section 4(1) of the said Act it would be presumed to be valid unless the person challenging its validity shows that in fact the village named does not amount to specifying the locality on the fact and in the circumstances of that case". From this it seems that the word 'locality' must be understood as a compact area smaller than city, town or village but larger than the vicinity of the building sought to be recovered” 23. Viewed so, the report of the Commissioner that no 18 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 other vacant building could be located in the vicinity of the petition schedule premises cannot be acted upon to find that no suitable building for shifting the business of the tenant is available in the locality. Vicinity cannot be the 'locality' intended in the said provision. The courts below were miscarried by the said statement in Ext.C1 and without properly understanding the meaning of 'locality', has concluded that the tenant could establish that no suitable building for shifting his business is available. We are of the view that in the light of the said evidence and circumstances, the finding ought to have been that the tenant failed to discharge his burden in regard to the second proviso to Section 11(3) of the Act. Accordingly, we hold that the findings of the courts below regarding the second proviso to Section 11(3) are liable to be reversed and we do so. 24. The result is that the order of the Rent Control Court dated 30.06.2016 in R.C.P.No.81 of 2014 and the judgment of the Appellate Authority dated 04.12.2018 in R.C.A.No.207 of 2016 are liable to be set aside and eviction 19 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 claimed by the landlord under Section 11(3) of the Act is liable to be allowed. R.C.Rev.No.248 of 2019 is therefore allowed and R.C.Rev.86 of 2022 dismissed. Resultantly, R.C.P.No.81 of 2014 is allowed. 25. At the time of pronouncement of the Order, the learned counsel for the tenant 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 his business. The learned counsel for the respondent is agreeable to grant the same. 16. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule premises, 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 20 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 surrender vacant possession of the petition schedule premises to the landlord within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule premises and further he shall conduct any business in the petition schedule premises 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 21 R.C.Rev.No.248 of 2019 & R.C.Rev.No.86 of 2022 ## schedule premises 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