Musthafa v Abdul Majeed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 R.C.REV.NO. 46 OF 2022** **AGAINST THE JUDGMENT DATED 21.12.2021 IN R.C.A.NO.30 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), TIRUR AND THE ORDER DATED 09.08.2019 IN R.C.P.NO.54 OF 2014 OF THE RENT CONTROL COURT (MUNSIFF), PARAPPANANGADI** ## **REVISION PETITIONER:** **MUSTHAFA,** **AGED 59 YEARS, S/O KADANGAL BEERANKUTTY, MUNEERA HARDWARE, MAIN ROAD, CHEMMAD, TRIKKULAM AMSOM DESOM, P.O.TIRURANGADI, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676 306.** **BY ADVS. T.KRISHNANUNNI (SR.) VINOD RAVINDRANATH MEENA.A. M.R.MINI K.C.KIRAN M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K.** 2 R.C.Rev.No.46 of 2022 ## **RESPONDENT:** ## **ABDUL MAJEED** **AGED 49 YEARS, S/O.RAYINKUTTY HAJI, CHETTALI HOUSE, TRIKKULAM AMSOM, DESOM, TIRURANGADI, P.O., TIRURANGADI TALUK, PIN-676 306, REP BY POWER OF ATTORNEY HOLDER, ISMAIL , AGED 39 YEARS, S/O.RAYINKUTTY HAJI, CHETTALI HOUSE, TRIKKULAM AMSOM, DESOM, TIRURANGADI, P.O., TIRURANGADI TALUK, PIN-676 306.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.46 of 2022 ## **O R D E R** ## Ajithkumar, J. This is a revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent-landlord filed R.C.P.No.54 of 2014 before the Rent Control Court (Munsiff), Parappanangadi, seeking eviction of the petitioner-tenant under Section 11(3) and 11(4)(ii) of the Act. The Rent Control Court ordered eviction under Section 11(3) and declined the claim for eviction under Section 11(4) (ii) of the Act. In the appeal filed by the petitioner under Section 18(1)(b) of the Act as R.C.A.No.30 of 2019, the Rent Control Appellate Authority (Additional District Judge), Tirur, confirmed the order of eviction. Feeling aggrieved thereof, the petitioner has filed this revision petition. 2. The petition schedule shop room is a part of a larger building, which has five rooms; two in the ground floor and three in the first floor. One of the ground floor rooms is the petition schedule shop room. The petitioner as a tenant has been conducting a hardware business in that room. The 4 R.C.Rev.No.46 of 2022 respondent was employed in Saudi Arabia. He has now returned and settled at his native place. He wants to start a wholesale and retail business in parda and parda materials, for which he needs both the ground floor rooms. His plan is to remove the separating wall and by converting both rooms into one to start the business. Therefore, he moved for eviction of the tenants in both the rooms. The tenant in the other room eventually had surrendered vacant possession. 3. The claim for eviction was resisted by the petitioner by filing a counter statement. He contended that the need urged by the respondent was not bona fide, he has other vacant rooms in his possession and the petitioner is entitled to get protection from eviction under the second proviso to Section 11(3) of the Act. 4. The contentions of the petitioner relating to lack of bona fides of the respondent and the first and second provisos to Section 11(3) of the Act were not accepted by both the courts below. Evidence of PW1, the landlord, and 5 R.C.Rev.No.46 of 2022 RW1, the tenant was considered by both the courts below in the light of Exts.A1 and C1 to C6 documents before arriving at the conclusion that the petitioner is liable to be evicted. Same contentions are reiterated in this revision as well. 5. When this matter came up for admission today, we heard the learned counsel for the petitioner in detail. 6. The point that arises for consideration is as to whether the order of the Rent Control Court and the judgment of the Appellate Authority ordering eviction, require interference on the ground of illegality, irregularity or impropriety. 7. PW1 deposed in detail regarding the projected need. After returning from Saudi Arabia, he remains unemployed, and therefore, he wants to start a business of his own. He has admitted that upper floor rooms in the building are vacant. He, however, gave a detailed explanation why the said rooms are not put to use for the proposed business. RW1, the petitioner, admitted that the respondent 6 R.C.Rev.No.46 of 2022 after his return from Saudi Arabia remains unemployed. In view of the said evidence, it cannot be said that the need projected by the respondent is not a mere wish or fanciful idea. A person hitherto had been working and earning his livelihood, now remains jobless. When such a person says that he wants to start such a business in his own building, his intention cannot be doubted. The categoric version of PW1 that the proposed business cannot be successfully conducted in the upstairs rooms can only be said genuine even on a common sense point of view. 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 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 7 R.C.Rev.No.46 of 2022 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. 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 8 R.C.Rev.No.46 of 2022 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. 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 9 R.C.Rev.No.46 of 2022 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 Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 11. Viewed in the light of the above principles of law, we are of the view that the need urged by the respondent is true, genuine and bona fide. 10 R.C.Rev.No.46 of 2022 12. There is no evidence to show that the respondent is in possession of any room, other than the building in question. The reason for not occupying the upstairs rooms for the proposed purpose has been sufficiently explained. Therefore, the petitioner cannot claim the benefit of the first proviso to Section 11(3) of the Act. 13. 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. 11 R.C.Rev.No.46 of 2022 14. The petitioner deposed before court that the sole income he is having to eke out his livelihood is the income from the business in the petition schedule shop room. He is conducting a hardware business. He cannot conduct such a business without maintaining accounts. No documentary evidence has been produced before the court regarding that. In the absence of any such evidence, which obviously could have been produced by him, the ipse dixit of RW1 alone cannot be acted upon to render a finding that his only source of income is the business in the petition schedule shop room. In Ext.C1 report, the Commissioner has reported regarding availability of vacant rooms in the locality. PW1 asserted that so many such rooms are available in the locality on rent. When those facts were put to RW1, the tenant, he either feigned ignorance or answered that did not enquire. From the said evidence the inference that could be drawn is that several vacant rooms are available in the locality. In the light of such evidence, it can only be said that the petitioner is not entitled to get the benefit of second proviso to section 11(3) of the Act. 12 R.C.Rev.No.46 of 2022 15. 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 jurisdiction will get obliterated. Hence, the High Court was not right in reappreciating 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. 13 R.C.Rev.No.46 of 2022 16. 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. 17. 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 14 R.C.Rev.No.46 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. 18. 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. 19. The learned counsel for the petitioner has made a request to afford nine months’ time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting his business. 20. 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: 15 R.C.Rev.No.46 of 2022 (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 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 16 ## R.C.Rev.No.46 of 2022 and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. **1.** ## **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr