Nisamudheen v. Kunjumon

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ``` RCREV.NO.62 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 17.11.2021 IN RCA NO.4 OF 2019 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT-I), MAVELIKKARA ARISING OUT OF THE ORDER DATED 30.01.2019 IN RCP NO.5 OF 2017 OF THE RENT CONTROLLER (MUNSIFF COURT, KAYAMKULAM) ``` ``` REVISION PETITIONER/APPELLANT/PETITIONER: ``` ``` NISAMUDHEEN, AGED 57 YEARS S/O IBRAHIMKUTTY, VELIKKAKATHU VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE, PIN-690 502. ``` ``` BY ADVS. K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI SACHIN RAMESH ``` ## **`RESPONDENT/RESPONDENT/COUNTER PETITIONER:`** ``` SRI.KUNJUMON, AGED 59 YEARS S/O SAINUDHEEN KUNJU, ALIPURAYIDATHIL, KAYAMKULAM MURI, KAYAMKULAM VILLAGE, PIN-690 502. ``` ``` BY ADVS. HARIKUMAR T.S P.B.SAHASRANAMAN(K/121/1984) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev).No. 62 of 2022 ## **O R D E R** ## G. Girish, J. The landlord in R.C.P.No.5 of 2017 of the Rent Control Court, Kayamkulam, is the revision petitioner herein. The petition filed by him seeking eviction of the respondent-tenant on the ground of arrears of rent and bona fide need, was partly allowed by the Rent Control Court by limiting the order of eviction to one under Section 11(2)(b) Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') alone. The request for possession of the petition schedule building for the use of the father of the landlord for conducting a paint shop, was declined by the Rent Control Court, stating the reason that it was beyond comprehension to expect that person in his age of seventies, involving in paint business, instead of opting peaceful retirement life. The Rent Control Appellate Authority (Additional District Judge-I), Mavelikkara also followed the suit, upholding the observation of the Rent Control Court in the above regard, and dismissed the appeal filed by the landlord as R.C.A.No.4 of 2019. Aggrieved by the above concurrent findings of the Rent Control Court and the Appellate Authority, declining eviction under Section 11(3) of the Act, the landlord is here with this revision petition. 3 R.C.(Rev).No. 62 of 2022 2. Heard the learned counsel for the revision petitionerlandlord and the learned counsel for the respondent-tenant. 3. The Rent Control Court as well as the Appellate Authority are seen to have drawn the conclusion that in a practical approach instructed by the realities of life, it cannot be expected that the petitioner’s father, a retired Government High School Teacher, aged 83 years, would consider commencing a business of the sale of paints, after a long span of 28 years after retirement in the year 1990. It is on the basis of the above conclusion that the Rent Control Court and the Appellate Authority found that the need projected by the petitioner-landlord for the eviction of the respondent-tenant, is not bona fide. 4. It has to be stated at the outset that the trial court, as well as the Appellate Authority outreached their authority and harped upon extraneous considerations in arriving at conclusions on the basis of unfounded assumptions and personal conceptions. It was none of the concern of the Rent Control Court or the Appellate Authority to fix the age limit for the conduct of paint business by the landlord’s father. In the absence of any medical evidence pointing to the physical or intellectual incapability of the landlord’s father, the Rent Control Court and the Appellate Authority were not expected to assume that the landlord’s father might not be able to conduct paint 4 R.C.(Rev).No. 62 of 2022 business, as sought for in the Rent control petition. So also, the opinion expressed by the Rent Control Court and the Appellate Authority about the improbability of a retired Government High School Teacher at the age of 83 years resorting to paint business, was totally unwarranted. It is apposite to state here that this Court had observed in **Sunny Padamadan Rafael v. Vijaya Shenoy** **[2019 (2) KLT SN 12]** , that old age or affluency cannot be a ground to doubt bona fide need. In the above case, this Court had upheld the eviction in favour of a widow, aged 63 years, who wanted to carry on the business of hardwares in the leasehold building. In **K.P.Komalam v. Mohammed and others [2002(1)KLT 284]** this Court has held that there is no presumption that a retired person is incompetent to start a business. 5. In **Jerry Joseph v. Selvaraj [2002(2)KLT 129]** , a Division Bench of this Court has held that the tenant cannot dictate to the landlord regarding his need or choice of building. 6. In **Sait Nagee Purushotham and Co. Ltd. v. Vimalabai Prabhulal (2005) 8 SCC 252]** , the Apex Court held that it is always the privilege of the landlord to choose the nature of the business and the place of business and that the tenant cannot dictate the terms to the landlords and advice him what he should do and what he should not. 5 R.C.(Rev).No. 62 of 2022 7. Going by the law laid down by the Apex Court and this Court in the aforesaid decisions, the findings of the Rent Control Court and the Appellate Authority about the absence of logic and impossibility of the landlord’s father preferring a paint shop at his advanced age, is totally unfounded. 8. It is revealed from the impugned order of the Rent Control Court and the judgment of the Appellate Authority, that the landlord and his father tendered oral evidence before the trial court as PW1 and PW2 in support of the bona fide need projected in the rent control petition. There is absolutely no reason to view the above oral evidence tendered by them with suspicion. 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 6 ## R.C.(Rev).No. 62 of 2022 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 **Nalakath Saidali Haji v. Kalluparamba Musthafa** **and others [2015 (4) KHC 815]** , a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra, and held that the question as to whether a particular need is bona fide or not has to be judged by the Court, placing itself in the position of landlord. ## 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 materials to the contra. ## 12. In **Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** , a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that, in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must 7 R.C.(Rev).No. 62 of 2022 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 but, of course, subject to the first and second provisos to Section 11(3). ## 13. In **Aboobacker.C.P v. K.T.Sreelatha Nambiar [2022** **KHC 5100]** also, a Division Bench of this Court in which one among us, [Anil K. Narendran, J.] was a party, has held that once, on the basis of 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 the said Act. 14. In the case on hand, the evidence on record would prima facie establish that the need of the landlord to have possession of the leased out building for the conduct of paint shop by his father, is 8 R.C.(Rev).No. 62 of 2022 natural, real, sincere and honest. The respondent could not bring out anything to show that the above need was only a ruse for eviction. 15. It is also revealed from the evidence on record that the respondent-tenant could not bring out any circumstances, which would afford them with the protection and privilege of provisos 1 and 2 of Section 11(3) of the Act. 16. As regards the onus of proving requirements of provisos 1 and 2 of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, it is well-settled that it is upto the tenant to bring out the requisite particulars through convincing evidence, for seeking the protection of the said provisos. 17. Following various earlier decisions of this Court, it has been held by a Division Bench of this Court in **Chethil Tharemmal** **Rasheeda v. Peedikayilakath Muhammad [2021 (6) KHC** **723]** , in which one among us, [Anil K. Narendran, J.] was a party, that the burden to prove the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, is on the tenant. So also, in **Aboobacker.C.P v. K.T.Sreelatha Nambiar** (supra) it has been held that it is the absolute burden of the tenants to prove both limbs of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. 9 R.C.(Rev).No. 62 of 2022 18. In the light of the discussions aforesaid, the conclusion is irresistible that the Rent Control Court and the Appellate Authority went wrong in declining eviction of the respondent-tenant from the petition schedule building on the ground of bona fide need envisaged under Section 11(3) of the Act. Needless to say, that the impugned order and judgment of the Rent Control Court and the Appellate Authority, mentioned above, are liable to be reversed, and the respondent-tenant liable to be ordered to handover vacant possession of the petition schedule building to the petitionerlandlord. 19. When our view, as above, has been made clear in open court, the learned counsel for the respondent-tenant sought one year for the respondent-tenant to vacate the petition schedule shop room. The learned counsel for the petitioner-landlord opposed the above request stating the reason that such a long period of time would cause further hardship and sufferings to the petitionerlandlord who has been prosecuting this proceedings for the eviction of the respondent-tenant right from the year 2017. Having regard to the submissions of the learned counsel for the respondent-tenant and the learned counsel for the petitioner-landlord on the above aspect, we feel it proper to grant a period of four months’ time to the respondent-tenant to vacate the petition schedule shop room, if 10 R.C.(Rev).No. 62 of 2022 he is ready to abide by the terms and conditions enumerated hereafter in the concluding portion of this order. In such circumstances, this Rent Control Revision is allowed setting aside and reversing the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting four months' time to the respondenttenant, to surrender vacant possession of the petition schedule shop room to the petitioner-landlord, 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 four 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 that 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 two weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; 11 ## R.C.(Rev).No. 62 of 2022 (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/-** **Sd/G. GIRISH, JUDGE** vgd