Neeratti Muhammed Ashraf v. Kunnumbrath Beevi 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 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 R.C.REV.NO. 93 OF 2022** **AGAINST THE JUDGMENT DATED 11.03.2022 IN R.C.A.NO.83 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERY AND THE ORDER DATED 22.02.2020 IN R.C.P.NO.121 OF 2014 OF THE RENT CONTROL COURT (MUNSIFF), THALASSERY** ## **REVISION PETITIONER:** **NEERATTI MUHAMMED ASHRAF AGED 66 YEARS, S/O. MOOSA, ASHIRVAD, GOODS SHEED ROAD, THALASSERY AMSOM, VADIKAGHAM DESOM, THALASSERY - 670571.** **BY ADVS. T.P.SAJID SHIFA LATHEEF MUHAMMED HAROON A.N. MUHAMMED MUSTHAFA. K** ## **RESPONDENTS:** - **1 KUNNUMBRATH BEEVI AGED 69 YEARS, W/O. MOIDEEN, BUSHARA MANZIL, NARANGAPURAM, THALASSERY - 670101.** - **2 MAJEED, AGED 58 YEARS, S/O. BEEVI, BUSHRA MANZIL, NARANGAPURAM, THALASSERY - 670101.** - **3 BUSHARA, AGED 56 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY - 670101.** 2 R.C.Rev.No.93 of 2022 - **4 SABAIRA, AGED 53 YEARS, D/O. BEEVI, BUSHRA MANZIL, NARANGAPURAM, THALASSERY - 670101.** - **5 SAMEERA AGED 52 YEARS, D/O. BEEVI, BUSHRA MANZIL, NARANGAPURAM, THALASSERY - 670101.** - **6 SAHIRA, AGED 50 YEARS, D/O. BEEVI, BUSHRA MANZIL, NARANGAPURAM, THALASSERY-670101.** - **7 MUHAMMAD SAFAR,** - **AGED 48 YEARS, S/O. BEEVI, BUSHRA MANZIL, NARANGAPURAM, THALASSERY - 670101.** - **8 RIYAS AGED 46 YEARS, S/O. BEEVI, SAHAH, PO THIRUVANGAD, THALASSERY-670101.** - **9 BERSANA** - **AGED 44 YEARS, D/O. BEEVI, BUSHRA MANZIL, NARANGAPURAM, THALASSERY - 670101.** - **10 MUHAMMAD NAVAS,** - **AGED 42 YEARS, S/O. BEEVI, BUSHRA MANZIL, NARANGAPURAM, THALASSERY - 670101.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON 22.06.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.93 of 2022 ## **O R D E R** ## Ajithkumar, J. This is a Revision Petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner is the tenant. The respondents-landlords filed R.C.P.No.121 of 2014 before the Rent Control Court (Munsiff), Thalassery, seeking eviction under Section 11(3) of the Act. The rent control petition was allowed. The petitioner preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority(Additional District Judge-IV), Thalassery as R.C.A.No.83 of 2020. The appeal failed. Hence, the petitioner filed this revision. 2. When this matter came up for admission on 09.06.2022, we heard the learned Counsel appearing for the petitioner in detail. 3. The respondent filed R.C.P.No.121 of 2014 together with R.C.P.No.122 of 2014. The respondents sought eviction of the respective tenants on similar grounds, which is that the 10[th] respondent, Sri.Muhammad Navas wanted to start a crockery business making use of the tenanted premises involved in both 4 R.C.Rev.No.93 of 2022 cases. These are two adjoining shop rooms. 4. The petitioner resisted the rent control petition by filing a counter statement. He contended that Sri.Muhammad Navas has many other businesses at Thalassery and also abroad. There is no need for him to start a crockery business. Such a need was urged as a pretext to evict the petitioner and the reason was rent claimed by the respondents at an exorbitant rate was declined. The respondents are in possession of many other shop rooms and buildings which are suitable for the projected purpose. The petitioner is depending on the income derived from the business from the petition schedule shop room. No other suitable room/building is available in the locality to shift his business. Accordingly, he sought to dismiss the petition. 5. The Rent Control Court tried both cases jointly. PW1, RW1 and RW2 were examined. Exts.B1 to B3 were marked. After considering the evidence, the Rent Control Court found that the need urged by the respondents was bona fide. Finding further that the first or second proviso to Section 11(3) does not bar the respondents' plea of eviction, the petitioner was directed to surrender vacant possession of the petition schedule shop room 5 ## R.C.Rev.No.93 of 2022 within two months from the date of that order. Before the Appellate Authority, similar contentions were raised by the petitioner. But the Appellate Authority did not accept and accordingly dismissed the appeal. 6. The learned counsel appearing for the petitioner would submit that from the oral testimony of PW1, Sri.Muhammad Navas, for whose need the eviction is sought, it can be seen that without any bona fides the plea for eviction was put forward. He deposed before the court that he was in the Gulf and last came home in 2018. PW1 has further stated that he used to help in the business of the children of his aunt in the Gulf. The learned counsel would contend that on a holistic reading of the oral testimony of PW1, what can be gathered is that he is engaged in business ventures abroad and at Thalassery, and without any bona fides he is seeking eviction of the petitioner. 7. PW1 deposed that he did not have any employment and only to help children of his aunt, he went abroad and it was not as an employee. His categoric version is that he has no employment and it is necessary for him to start a business of his own. RWs.1 and 2, who are the respective tenants, deposed that 6 R.C.Rev.No.93 of 2022 PW1 has employment and sources of income. Other than that a few shop rooms were let out and deriving income therefrom by the respondents together, who are co-owners, there is absolutely no evidence to show that PW1 has any employment or independent sources of income. That being the nature of evidence, it is not able to say that PW1 has put forward the need without any honesty or sincerity. 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 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 7 ## R.C.Rev.No.93 of 2022 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 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 8 ## R.C.Rev.No.93 of 2022 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 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 9 ## R.C.Rev.No.93 of 2022 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. In **Raveendran M.N. & another v. V.V.Sivaprasad** **[2017 (5) KHC 240]** , this Court held that if the need projected is that of a non-resident Indian even, the same has to be considered. If the landlord is able to establish that he put forward the need honestly and sincerely, the same has to be accepted as bona fide. 12. When the evidence brought on record through PW1 and the attending circumstances are considered in the light of the principle of law laid down in the aforesaid decisions, it can only be held that the need urged by the respondents is a bona fide one. We find no reason to interfere with the concurrent findings of the courts below in that regard. 13. The learned counsel appearing for the petitioner vehemently contended that in the light of Ext.B3 and the oral testimonies of RWs.1 and 2, it could only be found that vacant 10 ## R.C.Rev.No.93 of 2022 rooms are available with the respondents, but the courts below erringly found that aspect against the tenant. Ext.B3 is a certified copy of the building tax assessment register obtained from Thalassery Municipality. This document evidences that building/room Nos.44/1044, 1046, 2626, 2627 and 1048 were assessed in the name of Sri.Moideen, who was admittedly the predecessor-in-interest of the respondents. Building No.44/1045 was also seen assessed in the name of the respondents. In the view of the learned counsel of the petitioner, the said facts cast a burden on the respondents to place before the court the actual reasons for non-occupying the said rooms, if to get an order of eviction on the ground of bona fide need. 14. It is the settled law that once a tenant establishes that the landlord is in possession of another vacant building, it is his burden to substantiate the special reasons for not occupying that room for the projected need. The learned counsel for the petitioner in this regard placed reliance on the decision in **Chacko P.Mathew v. Kuttappan [2002 (1) KLT SN 52]** . Here, the evidence to prove that the respondents have in their possession vacant rooms or buildings is practically the entries in 11 ## R.C.Rev.No.93 of 2022 Ext.B3 alone. Oral testimonies of RWs.1 and 2 cannot be acted upon in this respect, since they were not able to specifically state which were all the rooms available vacant. The Rent Control Court observed in its order that RW2 admitted that in the building tax assessment register with respect to the room which his mother is in occupation as the tenant, name of his mother was not entered as the occupant. That fact belies the sanctity of Ext.B3. In **Panoli Alikutty v. Suresh Babu [2019 (1) KLT 110]** a Full Bench of this Court held that,- - “The scheme of the Act does not indicate that the legislature intended the parties to a proceeding for eviction under the Act to prove vacancy or occupancy of a building by producing certified extracts of the property tax or the building tax assessment books of the local authority. The said certified extracts can at best be a piece of evidence and the occupancy of the building needs to be established by the parties by other corroborative evidence.” Therefore, in the absence of any other evidence, entries in Ext.B3 cannot be acted upon to find that vacant rooms are available in the possession of the respondents. The first proviso to Section 11(3) of the Act has, in such circumstances, does not get attracted in this case. 12 R.C.Rev.No.93 of 2022 15. The petitioner is conducting a crockery shop in the petition schedule shop room. It is his contention that he is depending solely on the income derived from that business for his livelihood. The respondents, on the other hand, contended that the petitioner got other businesses from which he gets sufficient income. 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. In order to discharge his burden, RW1 relies on his oral testimony alone. No document or independent evidence with 13 ## R.C.Rev.No.93 of 2022 respect to his income and absence of any other business for him and also non-availability of other building or room for shifting his business has been adduced. In such circumstances, the concurrent findings of the courts below that the petitioner failed to prove the requirements of the second proviso to Section 11(3) of the Act cannot be interfered with. 18. The learned counsel appearing for the petitioner lastly submitted that the petitioner is a handicapped person getting his eyesight impaired gradually, and therefore, his eviction from the petition schedule shop room will result in grave injustice. That may be one of the aspects that can be considered while answering the question whether the tenant is depending solely on the income from his business for his livelihood. But in the light of the finding that the petitioner did not succeed in proving that his only source of income is the business in the petition schedule shop room, the said contention of the petitioner cannot be countenanced. 19. 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 14 R.C.Rev.No.93 of 2022 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 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. 20. 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 15 R.C.Rev.No.93 of 2022 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. 21. 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. 16 ## R.C.Rev.No.93 of 2022 22. 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. 23. At the time of pronouncement of this Order, the learned counsel for the petitioner has made a request to afford one year for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. 24. 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 petitioners-landlords within six months from the date of this 17 R.C.Rev.No.93 of 2022 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 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