Nanu V.O.K. v. Beena, Shijin and Adithya

## **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 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **R.C.REV.NO. 57 OF 2021 AGAINST THE JUDGMENT DATED 13.01.2021 IN R.C.A.NO.116 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), KOZHIKODE AND THE ORDER DATED 15.06.2019 IN R.C.P.NO.30 OF 2011 OF THE RENT CONTROL COURT (MUNSIFF), VATAKARA** ## **REVISION PETITIONER:** **NANU V.O.K., AGED 58 YEARS, S/O.KANARAN, RESIDING AT VADAKE ODIKKUNI HOUSE, ERAMALA AMSOM, ORKATTERY DESOM, VATAKARA TALUK, KOZHIKODE, PIN-673 501.** **BY ADVS. NIRMAL. S SMT.VEENA HARI** ## **RESPONDENTS:** **1 BEENA AGED 45 YEARS, D/O. KRISHNAN, SWASTHAM, KOLOKKOTTU KANDIYIL HOUSE, CHORODE AMSOM, CHENNAMGANALAM DESOM, VATAKARA TALUK, KOZHIKODE-673 106.** - **2 SHIJIN** **AGED 26 YEARS, S/O. CHANDRAN, KANDIYIL HOUSE, KOLOKKOTTU CHORODE AMSOM, CHENNAMGANALAM DESOM, VATAKARA TALUK, KOZHIKODE-673 106.** 2 R.C.Rev.No.57 of 2021 **3 ADITHYA, AGED 23 YEARS, D/O. CHANDRAN, KOLOKKOTTU KANDIYIL HOUSE, CHORODE AMSOM, CHENNAMGANALAM DESOM, VATAKARA TALUK, KOZHIKODE-673 106.** **BY ADVS. B.KRISHNAN R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.57 of 2021 ## **O R D E R** ## Ajithkumar, J. The tenant is the revision petitioner. R.C.P.No.30 of 2011 was filed by the respondents-landlords seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 before the Rent Control Court (Munsiff), Vatakara. The Rent Control Court ordered eviction by allowing the rent control petition. The petitioner-tenant carried the matter in appeal by filing R.C.A.No.116 of 2019 and the Rent Control Appellate Authority (Additional District Judge-III), Kozhikode, dismissed the appeal. Feeling aggrieved thereof, this Revision under Section 20 of the Act is filed by the petitioner. 2. On 29.03.2021, this Court admitted this revision petition and ordered to serve notice on the respondents. Execution of the order of eviction was stayed initially for aperiod of three months. The order was extended from time to time. 3. Heard the learned counsel appearing for the 4 R.C.Rev.No.57 of 2021 petitioner and the learned counsel appearing for the respondents. 4. Revision petition in this matter has reached this Court second time. Initially, the Rent Control Court, after trial, allowed the rent control petition by granting an order of eviction under Section 11(3) of the Act. But, in the appeal preferred by the petitioner herein, the Appellate Authority reversed the order and dismissed the rent control petition. The respondents filed a revision petition before this Court as R.C.Rev.No.267 of 2013. As per order dated 18.01.2019, this Court set aside the judgment of the Appellate Authority holding that the death of the original landlord has brought about fundamental changes in the need projected in the petition, and accordingly remitted the matter to the Rent Control Court. The respondents herein, were permitted to get the petition for eviction amended. Accordingly, an amendment was carried out in the petition. The Rent Control Court, after hearing both sides, ordered eviction again. An appeal was preferred by the petitioner as R.C.A.No.116 of 2019. The 5 R.C.Rev.No.57 of 2021 Appellate Authority did not interfere in the findings of the Rent Control Court. 5. The learned counsel appearing for the petitioner would contend that after the remand, no serious amendment was made to the rent control petition, nor any further evidence was let in by the respondents. This Court as per order in R.C.Rev.No.267 of 2013 held that the death of the original landlord brought about fundamental change to the need urged in the rent control petition, and allowed the respondents to effect required amendments in the petition. However, they opted to have a namesake change in the petition and, not to adduce any further evidence. The learned counsel contends, therefore, that the Rent Control Court would not have ordered eviction. On the factual aspects, it has been contended that the need urged first time was essentially that of the husband of PW1, whereas after his death, such a need would not survive, and therefore, in the absence of necessary pleading and evidence, no eviction could have been ordered. 6 R.C.Rev.No.57 of 2021 6. The learned counsel appearing for the respondents, on the other hand, would contend that the need originally projected was to start a vegetable business in the petition schedule shop room by PW1. Since her husband, the original landlord, was an ailing man, although the need projected was that of the landlord, being the wife, PW1, for and on behalf of her husband, would have to conduct the vegetable business. PW1 deposed in court that starting such a business has become inevitable since the rental income was absolutely insufficient for the livelihood of her family. Therefore, the nature of the need originally also was that the vegetable business would be started by PW1, of course, with the consent and assistance of her husband. After his death, the amendment carried out in the petition is that PW1 would conduct the business with the help of her children, who are respondents 2 and 3. On account of the death of the original landlord, change that had taken place is only that earlier PW1 with the help of her husband, but now, she with the help of her children, wants to start the business. In view of that 7 R.C.Rev.No.57 of 2021 matter, it cannot be said that there occurred any serious change to the nature of the need set forth by the respondents. Of course, as held by this Court in the Order dated 18.01.2019, there occurred a fundamental change in the need projected in the petition. By bringing about the amendment that the business would be commenced by the 1st respondent with the help of her children, that change has been carried out in the petition. Nature of evidence required to prove such a need earlier and subsequent to the amendment is the same. The contention of the learned counsel for the petitioner that failure to adduce any further evidence after the amendment, is fatal to the case of the respondent in the above circumstances, is untenable. 7. 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 8 R.C.Rev.No.57 of 2021 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. 8. 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.** 9 R.C.Rev.No.57 of 2021 **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 convince the court that it is not a mere fanciful or whimsical desire. 9. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled 10 R.C.Rev.No.57 of 2021 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 Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 10. In this case, a widow wants to start a vegetable business with the aid and support of her two children. PW1 11 R.C.Rev.No.57 of 2021 stated that she has no much income other than the rent from the petition schedule shop room. When she urges that it is her necessity to start a business in her own building, which undoubtedly would augment her income, it can only be said that the need is not merely a desire or wish. It is certainly a need necessitated by the circumstances and it is bona fide. There is absolutely no reason to interfere with the findings in this regard of the courts below. 11. The petitioner has no case that the respondents own or possess any other building, which can be used for proposed need. Coming to the second proviso to Section 11(3) of the Act, evidence brought on record by the petitioner is insufficient to prove the ingredients. The petitioner is conducting a tailoring shop in the petition schedule shop room. It is his version that he employs four persons in his shop. Of course, he, as RW1, deposed that the income derived from the tailoring shop is the sole source of not only his, but also his employees' livelihood. When there are four employees and the business is of such a nature, documents regarding the 12 R.C.Rev.No.57 of 2021 licence and permission for conducting the business and also maintenance of the statement of accounts are necessary. But no such document has been produced before the court. In such circumstances, it is not possible to hold that the petitioner is depending for his livelihood on the sole income derived from the tailoring shop in the petition schedule shop room. 12. PW1 during his examination in court pointed out a few vacant rooms available in the locality. RW1 stated evasively that no vacant room is available for shifting his business. When put to him the details of the rooms stated to be available on rent, he feigned ignorance about availability of such rooms. When it is his absolute burden to prove nonavailability of suitable other rooms in the locality, which he can avail on rent, his evasive statements in court are insufficient to prove that matter. In such circumstances, we hold that the petitioner failed to prove any of the ingredients of the second proviso to Section 11(3) of the Act. Hence, the finding of the courts below on this point also does not call for any interference. 13 R.C.Rev.No.57 of 2021 13. 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 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 14 R.C.Rev.No.57 of 2021 propriety of the order impugned before it. 14. 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. 15. 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** 15 R.C.Rev.No.57 of 2021 **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. 16. Viewed in the light of the aforesaid decisions, we find no reason to interfere with any of 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. 17. The learned counsel for the petitioner has made a request to afford ten month's time for vacating the premises pointing out the difficulty to find out another room and making necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant four months’ time. 18. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant 16 ## R.C.Rev.No.57 of 2021 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 they 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 17 R.C.Rev.No.57 of 2021 this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioners-landlords 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