M.K. Haris v. M.M. Pocker Haji and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 R.C.REV.NO. 15 OF 2022** **AGAINST THE JUDGMENT DATED 08.10.2021 IN R.C.A.NO.112 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), KOZHIKODE AND THE ORDER DATED 02.07.2019 IN R.C.P.NO.51 OF 2017 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-II), KOZHIKODE** ## **REVISION PETITIONER:** **M.K. HARIS, AGED 51 YEARS, S/O. ABDULLA, AISWARYA BAKERY, 24/1733A, N.H.BYPASS,** **P.O.MANKAVU JUNCTION, VALAYANAD AMSOM AND DESOM, KOZHIKODE-673004.** **BY ADVS. K.N.ABHILASH SUNIL NAIR PALAKKAT M.A.AHAMMAD SAHEER P.B.MUHAMMED AJEESH RITHIK S.ANAND** ## **RESPONDENTS:** **1 M.M. POCKER HAJI AGED 63 YEARS, S/O. MOOSA HAJI, MECHERIMEETHAL HOUSE, PONMERI AMSOM, PARAMBIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673101.** **2 MAVULLAPARAMBATH KUNHAMI @ MAMI, AGED 68 YEARS, W/O. LATE MOIDU HAJI, MAVULLAPARAMBATH HOUSE, KOLAVALOORE AMSOM AND DESOM, THALASSERY TALUK, TOOVAKUNNU P.O., KANNUR DISTRICT-670693.** 2 ## R.C.Rev.No. 15 of 2022 **3 MAVULLAPARAMBATH MAHAMOOD, AGED 48 YEARS, S/O. LATE MOIDU HAJI, MAVULLAPARAMBATH HOUSE, KOLAVALOORE AMSOM AND DESOM, THALASSERY TALUK, TOOVAKUNNU P.O., KANNUR DISTRICT-670693.** **SRI P.A. HARISH - R1** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINALLY HEARING ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 15 of 2022 ## **O R D E R** Ajithkumar, J. The respondents-landlords filed R.C.P.No.51 of 2017 before the Rent Control Court (Principal Munsiff-II), Kozhikode, seeking eviction of the petitioner-tenant under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The rent control petition was allowed, ordering eviction. The petitioner preferred an appeal as R.C.A.No.112 of 2019 under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-IV), Kozhikode. The Appellate Authority concurred with the findings of the Rent Control Court. Feeling aggrieved thereof, the petitioner has filed this revision petition under Section 20 of the Act. 2. The respondents are the co-owners of the petition schedule shop room. Setting forth the need that the 1[st] respondent wants to start a bakery business in the petition schedule shop room, and stating that they are in possession of no other suitable room, claimed eviction of the petitioner. It 4 R.C.Rev.No. 15 of 2022 was further contended that the petitioner defaulted payment of rent from October, 2016 onwards, and therefore, he is liable to be evicted under Section 11(2)(b) of the Act. 3. The petitioner filed a counter statement denying the title of the respondents to the petition schedule shop room. He contended that he did not ever pay rent to the respondents as they do not have ownership or title to the petition schedule shop room. For that reason itself, he is not liable to pay any rent. The need urged by the respondents as a ground for eviction was refuted as well. 4. On the basis of the evidence recorded at the trial, which comprises oral testimony of PW1 and Exts.A1 to A3, the Rent Control Court accepted the contentions of the respondents and ordered eviction. That order was challenged before the Appellate Authority by filing R.C.A.No.112 of 2019. But the appeal failed. 5. When this matter came up for admission on 03.03.2022, this Court admitted the revision to file and ordered notice to be served on respondents though their 5 R.C.Rev.No. 15 of 2022 counsel appearing before the Principal Munsiff's Court-II, Kozhikode, where the execution petition in R.C.P.No.51 of 2017 is pending. The learned counsel appearing for the petitioner submitted a memo stating that notice was thus served on the counsel. 6. When this matter is taken up today, the learned counsel had appeared for the 1[st] respondent. Since the notice was served on the counsel for the respondents appearing before the execution court, we dispense with a further notice to the respondents 2 and 3. 7. Heard the learned counsel for the petitioner and the learned counsel for the 1[st] respondent in detail. 8. The title of the respondents to the petition schedule shop room was denied by the petitioner by contending that at no point of time he paid rent to the respondents and they never had convinced the petitioner that they had obtained title to the petition schedule shop room for them to be attorned to as the landlords. The case of the respondents is that after the death of the original owner Sri.Mavulla 6 R.C.Rev.No. 15 of 2022 Parambath Moidu Haji, as his heirs, the respondents have become owners of the petition schedule shop room. It is their further case that they had entered into an oral agreement with the petitioner regarding the tenancy arrangement and the rent mutually agreed was Rs.16,000/- per month. The respondents did not produce any documentary evidence to prove their title. But produced Ext.A2, a copy of the plaint in O.S.No.737 of 2016 filed by the petitioner before the Munsiff's Court, Kozhikode. The 3[rd] defendant in the said suit is the 1st respondent. The petitioner unequivocally admitted in Ext.A2 that the defendants therein are the owners of the petition schedule shop room. When there is a candid admission by the petitioner, non-production of the title deed by the respondents cannot be found faulty. It is the trite law that admission by a party to the litigation will not confer title to an immovable property. Here, the question is whether the respondents have title as landlords to seek eviction of their tenant. When the tenant admits that the respondents are the landlords, no more evidence is required to maintain a petition for eviction. 7 R.C.Rev.No. 15 of 2022 Further, PW1, the 1[st] respondent, categorically deposed that the petitioner is the tenant under the respondents and he used to pay rent although kept the rent in arrears after October, 2016. Adding to that, the petitioner did not choose to send a reply to Ext.A1 notice demanding payment of arrears of rent and vacant possession of the petition schedule shop room. Those evidence certainly prove that the respondents are the landlords of the petition schedule shop room, having the right to seek eviction. We, therefore, hold that the findings of the courts below in this regard are not liable to be interfered with on the ground of illegality, irregularity or impropriety. 9. Eviction is sought on two grounds; arrears of rent and bonafide need. Rent since October, 2016 has been said to be in arrears. Although the petitioner contended that there is no such arrears, and he paid rent upto date, there is no evidence to substantiate the same. From Ext.A3 statement of accounts, remittance of some amount to the account of PW1, the 1[st] respondent, is seen. But there is no evidence to prove 8 R.C.Rev.No. 15 of 2022 that such payments were towards rent due to the respondents from the petitioner. In the absence of any evidence to correlate the payment with the rent due to the respondents, both the authorities below found that the case set forth by the respondents regarding the arrears of rent was correct. The learned counsel appearing for the petitioner failed to point out anything to deviate from the said finding. Therefore, we do not intend to interfere with the said finding. 10. The 1[st] respondent is PW1. He deposed before court that he proposes to start a bakery business in the petition schedule shop room and the other respondents, who are the co-owners agreed for the same. When PW1 states that he does not have any avocation and he wants to start a business in his own building, the same cannot be termed as a mere desire or a wish. It can only be said the same is a genuine requirement for the endurance of his family needs. 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 9 R.C.Rev.No. 15 of 2022 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 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 R.C.Rev.No. 15 of 2022 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 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 11 ## R.C.Rev.No. 15 of 2022 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 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 for an order of eviction under 12 R.C.Rev.No. 15 of 2022 Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 14. When evidence tendered by the respondents is considered in the light of the above principles of law, we are of the view that the need urged by the respondents-landlords is genuine and bonafide. The findings of the courts below in that regard does not call for any interference. 15. The petitioner claims benefit under the first and second proviso to Section 11(3) of the Act. But the said pleas are not supported by sufficient pleading or evidence. There is nothing in evidence to show that any of the respondents is in possession of any vacant room. Evidence to show that the income from the business in the petition schedule shop room is the sole source of the petitioner's livelihood is lacking. Regarding non-availability of other rooms or buildings for shifting the business of the petitioner being conducted in the petition schedule shop room also, there is no evidence. When it is the absolute burden of the tenant to prove both limbs of the second proviso to Section 13 R.C.Rev.No. 15 of 2022 11(3) of the Act, he ought to have let in sufficient evidence in proof of his plea. 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 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. 17. Viewed in the light of the said decision, it can only be said that the petitioner is not entitled to the benefit of second proviso of Section 11(3) of the Act. 18. In **Rukmini Amma Saradamma v. Kallyani** 14 R.C.Rev.No. 15 of 2022 **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 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 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. 15 R.C.Rev.No. 15 of 2022 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 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 16 R.C.Rev.No. 15 of 2022 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 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 six months' time for vacating the premises pointing out the difficulty in locating another room and making necessary arrangements for shifting his business. The learned counsel for the 1[st] respondent is agreeable to grant six months. 23. Having considered all the aspects of the matter, we deem it appropriate to grant six months’ time to surrender 17 ## R.C.Rev.No. 15 of 2022 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 petitioners-landlords within six 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 respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by 18 R.C.Rev.No. 15 of 2022 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