Mooryantakath Muhammed Haris v. M. Rafi

## **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 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944** **R.C.REV.NO. 190 OF 2020** **AGAINST THE JUDGMENT DATED 11.04.2018 IN R.C.A.NO.153 OF 2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), THALASSERY AND THE ORDER DATED 11.08.2014 IN R.C.P.NO.101 OF 2013 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** **MOORYANTAKATH MUHAMMED HARIS,** **AGED 70 YEARS, S/O. MAHAMOOD, FRUIT MERCHANT, PRAKASH HOTEL BUILDING, NEAR OLD BUS STAND, KANNUR - 670 101.** **BY ADVS. ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH SRI.E.MOHAMMED SHAFI SHRI. RAJ CAROLIN V.** ## **RESPONDENT:** **M.RAFI, AGED 51 YEARS, S/O.MOIDEEN, MEETHAL HOUSE, P.O.CHALAD, KANNUR-670014.** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 02.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** **R.C.Rev.No.190 of 2020** ## **O R D E R** ## Ajithkumar, J. The revision petitioner is the tenant-respondent in R.C.P.No.101 of 2013 on the file of the Rent Control Court (Principal Munsiff), Kannur. The petition for eviction filed by the respondent-landlord under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, was allowed by the Rent Control Court as per the order dated 11.08.2014. The appeal preferred by the petitioner under Section 18(1)(b) of the Act was dismissed by the Rent Control Appellate Authority (Additional District Judge-II), Thalassery, as per the judgment dated 11.04.2018. Aggrieved by the said order and the judgment, this Revision has been filed under Section 20 of the Act. 2. On 11.11.2020, notice was ordered to be served on the respondent. The order of eviction was stayed for a period of two weeks initially. That order was extended from time to time. Notice could not be served on the respondent personally. The notice was returned with an endorsement “not **3** **R.C.Rev.No.190 of 2020** known”. An Execution Petition in the matter is pending, and therefore, on 23.11.2020, the petitioner was allowed to serve notice to the respondent through his counsel appearing before the Principal Munsiff's Court, Kannur, where the Execution Petition is pending. Accordingly, notice was given to the counsel of the respondent and a memo to that effect was filed by the learned counsel appearing for the petitioner. The respondent, however, did not choose to appear before the court. 3. The learned counsel appearing for the petitioner submitted that due service of notice on the respondent was liable to be recorded since the notice was given to the learned counsel appearing for the respondent before the court below, as contemplated in Rule 59 of the Rules of the High Court of Kerala, 1971. In order to address on that question, this Court appointed Advocate Sri.S.Vinod Bhat, a counsel appearing before this Court as Amicus Curiae. The Amicus Curiae, placing reliance on the decision of this Court in **Manual v. Thomas [1977 KLT 567]** and **Geetha Panicker v. Lagi** **4** **R.C.Rev.No.190 of 2020** **Easo Mathew and others [2003 (3) KLT 454]** submitted that the service of notice on the counsel of the respondent, who continues to appear for the respondent before the court below, is sufficient notice. However, on the failure of the respondent to enter appearance despite giving such a notice, it is only appropriate to give notice directly to the party insofar as for a counsel to appear in the matter pending before the High Court, he has to file a separate Vakalath. 4. In the nature of the contentions raised by the petitioner in this revision petition, we deem it appropriate that the said question need not be deliberate upon any further and we proceed to dispose of the matter after hearing the learned counsel appearing for the petitioner. Accordingly, the learned counsel appearing for the petitioner was heard. 5. The respondent sought eviction on the ground of bona fide need. The need urged is that he wants to conduct a fruit business. The petitioner resisted the said plea by filing a counter statement. The petitioner contended that the need urged by the respondent is not bona fide. It was also **5** ## **R.C.Rev.No.190 of 2020** contended that the respondent has in his possession several other rooms, which are suitable to accommodate a fruit business, and that the petitioner is entitled to get the benefit of the second proviso to Section 11(3) of the Act. 6. The respondent was examined as PW1. Exts.A1 and A2 were proved on the side of the respondent. Exts.B1 to B3 were produced by the petitioner. The Rent Control Court after considering the said evidence, ordered eviction holding that the need urged by the respondent was bona fide, there is no proof for establishing possession of any other building by the respondent, and that the second proviso to Section 11(3) of the Act does not attract in this case. Those findings were assailed by the petitioner before the Appellate Authority, without any success. 7. The learned counsel appearing for the petitioner would submit that PW1, the respondent, did not depose convincingly regarding the need he had urged and on considering the fact that the respondent was employed abroad for quite a long period and he has real estate business now, it **6** **R.C.Rev.No.190 of 2020** cannot be held that he put forward such a need honestly or sincerely. 8. 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 the 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 **7** ## **R.C.Rev.No.190 of 2020** 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. 9. 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 **8** ## **R.C.Rev.No.190 of 2020** 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. 10. 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 **9** **R.C.Rev.No.190 of 2020** 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) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 11. There is nothing on record to show that PW1 now has any job or other sources of income. When such a person asserts that he has to start a fruit business in his own building, it cannot be said that such a requirement is not genuine or sincere. Although it was alleged that the intention of the respondent is to sell out the petition schedule shop room after evicting the petitioner, no evidence whatsoever has been let in to probabilise that contention. The oral testimony of PW1 stands scrutiny by a lengthy cross-examination. In the said circumstances, we are of the view that there is nothing wrong in the courts below acting upon the said evidence and reaching a finding that the need urged by the respondent was **10** **R.C.Rev.No.190 of 2020** bona fide. We find no reason to interfere with the said concurrent finding. 12. A plea based on the provisions of the first proviso to Section 11(3) of the Act was set forth by the petitioner. Apart from alleging that a few other rooms are available in the possession of the respondent, the petitioner did not venture to point out any particular room or to adduce evidence to show that any room suitable for the need projected by the respondent is available with him. 13. The petitioner has claimed that his only income to meet the needs of his livelihood is the income derived from the fruit business being conducted by him in the petition schedule shop room. But he did not produce any material evidence with respect to the said fact. 14. 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 **11** **R.C.Rev.No.190 of 2020** 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. 15. This view regarding the burden of proof has been approved by the Apex Court in **Kunhamma @ Lakshmi Ammas Children and another v. Akkali Purushothaman and others [(2007) 11 SCC 181],** where it was observed, “From a perusal of the judgment of the Full Bench of the Kerala High Court reported in Francis v. Sreedevi Varassiar [2003 (2) KLT 230] we observe that the onus lies on the tenant to prove that he was dependent on the income derived from the business being carried on from the demised premises and that there was no other suitable building to which he could shift his business.” 16. The law on the point is clear. It is the absolute burden of the tenant to prove both the limbs of the second **12** **R.C.Rev.No.190 of 2020** proviso to Section 11(3) of the Act. But the petitioner did not adduce any evidence to prove his plea. The inevitable conclusion is that he is not entitled to get the benefit of the second proviso to Section 11(3) of the Act. 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 re-appreciated the 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 **13** **R.C.Rev.No.190 of 2020** - 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 **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. **14** **R.C.Rev.No.190 of 2020** 19. 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 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. 20. The courts below rendered concurrent findings with respect to the bona fides of the need projected by the respondent and on the claim of the petitioner with respect to the first and second proviso to Section 11(3) of the Act. In the light of the proposition of law laid down in the aforesaid decisions, we in the exercise of the jurisdiction under Section 20 of the Act do not propose to interfere with the said findings. Therefore, we dismiss this Revision. 21. The learned counsel for the petitioner has made a **15** **R.C.Rev.No.190 of 2020** request to afford six months' time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. 22. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender 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 petitioner-landlord 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 **16** ## **R.C.Rev.No.190 of 2020** 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 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