N. Babu Raj v. Sai Narayanan A.P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944 RCREV. NO. 143 OF 2022** **[AGAINST THE JUDGMENT DATED 22.07.2021 IN RCA NO.110 OF 2019 OF 1[st] ADDITIONAL DISTRICT COURT (RENT CONTROL APPELLATE AUTHORITY), KOZHIKODE AND ORDER IN RCP NO.127 OF 2017 DATED 12.04.2019 OF ADDITIONAL MUNSIFF COURT-I,(RENT CONTROL COURT),KOZHIKODE]** ## **REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT IN RCP:** N. BABU RAJ, AGED 59 YEARS S/O. LAKSHMI, LAKSHMI JEWELLERY & PHOTOSTAT, ROOM NO. 27/717, KUTHIRAVATTOM P.O, KOZHIKODE PIN - 673016 BY ADVS. K.M.FIROZ M.SHAJNA ## **RESPONDENT/RESPONDENT IN RCA/PETITIONER IN RCP:** SAI NARAYANAN A.P AGED 65 YEARS S/O A.P.BALAKRISHNA PILLAI, BRAHMANANDA BHAVAN, KUTHIRAVATTOM P.O, KOZHIKODE , PIN - 673016 BY ADVS. Sudhish M.MANJU(K/003562/1999) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR No.143/2022 2 ## **O R D E R** ## SHOBA ANNAMMA EAPEN, J. This Rent Control Revision is filed by the revision petitioner/tenant, challenging the judgment dated 22.7.2021 in R.C.A.No.110/2019 of the Rent Control Appellate Authority, Kozhikode/1[st] Additional District Court, Kozhikode and the order dated 12.4.2019 in R.C.P.No.127/2017 of Rent Control Court/Court of Additional Munsiff-I, Kozhikode. 2. The respondent-landlord filed RCP No.127 of 2017 seeking eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act') of the petitioner, who is the tenant, from the petition schedule shop room. The Rent Control Court/Additional Munsiff Court-I, Kozhikode, allowed the petition under Section 11(2)(b) & 11(3) of the Act. An appeal was RCR No.143/2022 3 preferred under Section 18(1)(b) of the Act against the aforesaid order of the Rent Control Court. The Rent Control Appellate Authority (1[st] Additional District Judge), Kozhikode, dismissed the appeal. Hence, the petitioner-tenant came up with this revision under Section 20 of the Act. 3. Today, when the matter came up for admission, we heard the learned counsel appearing for the petitioner in detail. 4. The petition for eviction was filed contending that the revision petitioner-tenant defaulted payment of rent since August, 2014 and that the respondent-landlord's elder son, who is dependent on him, needs the shop room to start a whole sale and retail outlet for his coffee distribution unit. The revision petitioner-tenant resisted the prayer for eviction contending that he earns his livelihood from the jewellery business and the photostat RCR No.143/2022 4 work carried out in the shop room and there was no willful default in paying the rent and the rent was in arrears only because of the laches on the part of the agent to collect the rent. He further contended that the need put forth by the respondent for his elder son is not _bona fide_ and there are a number of vacant rooms in the possession of the respondent. 5. PW1 and RW1 were examined and Exts.A1 series, B1 series, B2 and C1 were received as evidence before the Rent Control Court. 6. The contentions raised by the revision petitioner/tenant that the respondent/ landlord's agent failed to collect rent on time and that there is no _bona fide_ need for the respondent's son, were turned down by the Rent Control Court. Further, it was found that the tenant has kept the rent in arrears and the need RCR No.143/2022 5 urged by the landlord for his son was _bona fide_ and that there is no vacant shop room in the possession of the respondent for the _bona fide_ need of his son and that the respondent-landlord was entitled to get an order of eviction under Section 11(2)(b) of the Act and the petitionertenant did not succeed in proving the requirements of first and second proviso to Section 11(3) of the Act. The order of eviction thereby passed by the Rent Control Court was assailed before the Appellate Authority. The Appellate Authority considered the matter in detail and after re-appreciation of evidence, confirmed the findings of the Rent Control Court. Now, the revision petitioner would contend that the said concurrent findings are unsustainable in law and against facts. 7. The learned counsel appearing for the revision petitioner would contend that one RCR No.143/2022 6 of the agents of the respondent used to collect rent and since the agent did not approach the petitioner for monthly rent, some rent fell in arrears. 8. However, admittedly, the rent is in arrears from August, 2014 onwards. The courts below had rightly allowed the claim under Section 11(2)(b) of the Act. Moreover, the petitioner has not so far paid the arrears of rent. 9. Section 11 of the Act deals with eviction of tenants. As per Section 11(1) of the Act, 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 RCR No.143/2022 7 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) of the Act, 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) of the Act, 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 RCR No.143/2022 8 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 the principle laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** that 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_ RCR No.143/2022 9 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 **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 material 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_ RCR No.143/2022 10 _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. 12. PW1 deposed that his son is conducting coffee distribution unit in partnership with his friends and the shop room occupied by him in Cherooty Road, Calicut is RCR No.143/2022 11 being used as office. Since his son intends to start a wholesale business and retail outlet, the petition schedule shop room is required. During the cross examination of PW1, no material was brought out to disbelieve the evidence of PW1. Further, it was found by the court below that the tenant failed to prove that there is vacant room for the landlord in his possession for the _bona fide_ need of his elder son. The court below further found that the tenant is not primarily or substantially dependent on the income derived from the business being carried on in the petition schedule shop room. In the said circumstances, it can only be found that the need urged by the respondent is _bona fide_ . There is nothing on record to doubt his honesty or sincerity in the need projected by him. Therefore, we hold that the finding rendered by the courts below that the rent was in arrears RCR No.143/2022 12 and the eviction ordered under Section 11(2)(b) of the Act are sustainable in law. Further, we hold that the need put forth by the respondentlandlord is genuine, real and honest and that the revision petitioner-tenant has failed to satisfy the first and second provisos to Section 11(3) of the Act. It is out of an honest and genuine desire, the respondent-landlord has approached the court below with a prayer for eviction and that cannot be interfered with by this Court in exercise of its revisional jurisdiction under Section 20 of the Act. 13. In the said circumstances, the concurrent findings of the courts below cannot be found fault with and hence, we are not inclined to interfere with the impugned judgment. ## 14. Having considered the entire matter in detail, this revision fails and hence, we RCR No.143/2022 13 dismiss it. 15. Taking note of the request made by the learned counsel for the revision petitionertenant to grant sufficient time for vacating the premises, we grant time up to 30.06.2023 to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition (revision petitioner herein) shall file an undertaking before the Rent Control Court or the Execution Court, as the case may be, within one month from today, that he will vacate the shop room, on or before - 30.06.2023. - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent within 45 (forty five) days from today and shall continue to pay rent RCR No.143/2022 14 till 30.06.2023, without any default; (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any 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 in the Rent Control Petition will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** ## **JUDGE** ## **Sd/-** ## **SHOBA ANNAMMA EAPEN** ## **JUDGE** MBS/