Pallikkandy Moosa v. Panichikkadavath Ibrahim

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 ``` ``` RCREV. NO. 101 OF 2022 ``` ``` AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE -IV), THALASSERY IN IN R.C.A. NO.164 OF 2016 DATED 16.12.2021 CONFIRMING THE ORDER DATED 29.07.2016 IN R.C.P. NO.36 OF 2015 OF THE RENT CONTROL COURT (MUNSIFF), KUTHUPARAMBA ``` ``` REVISION PETITIONER: ``` ``` PALLIKKANDY MOOSA AGED 61 YEARS S/O.ABDULLA HAJI, BUSINESS, RESIDING AT P.K.HOUSE, MANGATTIDAM AMSOM, KANDERI DESOM, THALASSERY TALUK, PIN - 670 643. ``` ``` BY ADVS. K.V.PAVITHRAN JAYANANDAN MADAYI PUTHIYAVEETTIL JITHIN S SUNDARAN P.P.RAMACHANDRAN ``` ## **`RESPONDENT:`** ``` PANICHIKKADAVATH IBRAHIM, AGED 65 YEARS, S/O.MUHAMMED, PENSIONER, MANGATTIDAM AMSOM, KANDERI DESOM, THALASSERY TALUK, PIN - 670 643. ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCRev.101 of 2022 ``` 2 ``` ## **O R D E R** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.36 of 2015 on the file of the Rent Control Court (Munsiff), Kuthuparamba, a petition filed by the respondent herein-landlord under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the landlord to start stationery business in the petition schedule shop room in which the tenant is conducting grocery-cum-stationery business. The tenant entered appearance and filed counter opposing the order of eviction sought for. Before the Rent Control Court, the landlord was examined as PW1 and Exts.A1 to A4 were marked on his side. On the side of the tenant, RWs.1 and 2 were examined and Exts.B1 to B3 were marked. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide; that the first proviso to Section 11(3) of the Act has RCRev.101 of 2022 ``` 3 ``` no application on the facts of the case; and that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. The order of eviction sought for under Section 11(2)(b) of the Act was declined, since the tenant paid rent up to the date of filing counter and no further claim was made by the landlord on that ground. Accordingly, by the order dated 29.07.2016, the Rent Control Court allowed R.C.P.No.36 of 2015 in part and the tenant was directed to vacate the petition schedule shop room under Section 11(3) of the Act, within the time limit stipulated in that order. 2. Challenging the order of eviction granted under Section 11(3) of the Act, the tenant filed R.C.A.No.164 of 2016 before the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery. That appeal ended in dismissal by the judgment dated 16.12.2021. Challenging the order dated 29.07.2016 of the Rent Control Court in R.C.P.No.36 of 2015 and the Judgment dated 16.12.2021 of the Rent Control Appellate Authority in R.C.A.No.164 of 2016, the tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act. 3. Heard the learned counsel for the petitioner-tenant. RCRev.101 of 2022 ``` 4 ``` 4. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction concurrently passed by the authorities below under Section 11(3) of the Act, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 5. The learned counsel for the petitioner-tenant would raise a contention that, the respondent cannot be treated as the landlord of the petition schedule shop room, since he claims right over the said shop room on the strength of the Will executed by his father, who is a Muslim. 6. As per Section 2(3) of the Act ‘landlord’ includes the persons who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. As per Explanation to Section 2(3), a tenant who sublets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant. 7. In the instant case, the tenant is admittedly paying the rent of the petition schedule shop room to the respondent- RCRev.101 of 2022 ``` 5 ``` landlord. Along with the filing of counter in R.C.P.No.36 of 2015, the tenant paid rent of the said shop room to the landlord. The Rent Control Court noticed the said fact in the order dated 29.07.2016. Therefore, we find no merit in the contention of the learned counsel for the petitioner-tenant that the respondent cannot be treated as the landlord of the petition schedule shop room. 8. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. 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 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 RCRev.101 of 2022 ``` 6 ``` 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 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 RCRev.101 of 2022 ``` 7 ``` 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 decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in **Kizhakkayil** **Suhara v. Manhantavida Aboobacker (dead) by Lrs.** **[(2001) 8 SCC 19]** that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has considered the need put forward by the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or RCRev.101 of 2022 ``` 8 ``` the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the 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 **Regy V. Edthil v. Hubert Leslie D'Cruz [2016** **(2) KLJ 164]** , another decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the decision of the Apex Court in **Deena Nath v. Pooran Lal** **[(2001) 5 SCC 705]** , wherein the Apex Court held that, in order to order eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual RCRev.101 of 2022 ``` 9 ``` pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in **Shiv Sarup Gupta [(1999) 6 SCC 222]** , wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control Legislation. In **Abdul Salam v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, when the landlord has clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, if there is admission on the part of the landlord of coming into possession RCRev.101 of 2022 ``` 10 ``` of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act. 13. In **Gireeshbabu T.P. v. Jameela and others [2021 (5) KHC SN 30]** , a decision relied on by the learned counsel for the petitioner-tenant, 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 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). 14. In the instant case, the need projected in the Rent RCRev.101 of 2022 ``` 11 ``` Control Petition, for seeking an order of eviction under Section 11(3) of the Act is that of the landlord to start stationery business in the petition schedule shop room. The said need was proved by the oral testimony of the landlord as PW1. The Rent Control Court and the Appellate Authority found that, the fact that the landlord, who is a retired Government employee, is getting monthly pension and that, he has other source of livelihood are not grounds which will disentitle him from seeking an order of eviction under Section 11(3) of the Act. It has come out in evidence that the landlord is conducting the very same business in a nearby shop room, which is taken on lease in the name of his wife. The Appellate Authority found that it is not a material fact which has any bearing on the issue involved in the Rent Control Petition. The Appellate Authority noticed that the tenant has no case that the landlord is having any other shop room in his possession, in order to attract the first proviso to Section 11(3) of the Act. Insofar as the second proviso to Section 11(3) of the Act is concerned, the Appellate Authority on appreciation of the evidence on record, confirmed the finding of the Rent Control Court that the tenant failed to prove the second limb of the said proviso. Since the tenant failed to prove both RCRev.101 of 2022 ``` 12 ``` limbs conjunctively, he is not entitled to the protection under the second proviso to Section 11(3) of the Act. 15. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per subsection (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion. 16. 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 RCRev.101 of 2022 ``` 13 ``` 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. ## 17. In **T. Sivasubramaniam v. Kasinath Pujari [(1999)** **7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not RCRev.101 of 2022 ``` 14 ``` an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 18. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression RCRev.101 of 2022 ``` 15 ``` ‘propriety’ in Section 20 of the Act, the revisional court will not - be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist. 19. 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 RCRev.101 of 2022 ``` 16 ``` ## propriety of the order impugned before it. 20. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 21. In **Abdul Salam v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the view taken is perverse and the statutory scheme has not been kept in mind and if it requires correction, then Court can reappreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said RCRev.101 of 2022 ``` 17 ``` that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence. 22. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016** **(2) KLJ 164]** , a Division Bench of this Court held that, the High Court (in revision) is obliged to test the order of the Rent Control Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. 23. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Rent Control Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal. It cannot also be said that, while ordering the eviction of the tenant under Section 11(3) of the Act, the Rent Control Court or the Rent Control Appellate Authority has committed a manifest error, warranting interference in exercise of the revisional RCRev.101 of 2022 ``` 18 ``` jurisdiction of this Court under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act. 24. The learned counsel for the petitioner-tenant would submit that considering the situation prevailing in the country on account of COVID-19 pandemic, the tenant may be given atleast six months' time to give vacant possession of the petition schedule shop room. 25. On the above request made by the learned counsel for the tenant, the learned counsel for the respondent-landlord would submit that a reasonable period for surrendering the vacant possession of the petition schedule shop room can be granted, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default. 26. The learned counsel for the tenant would submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the RCRev.101 of 2022 ``` 19 ``` petition schedule shop room to the landlord. 27. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting six months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlord, considering the situation prevailing in the country on account of COVID-19 pandemic, 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 petitionerlandlord 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 RCRev.101 of 2022 ``` 20 ``` 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 months, without any default; - (iii) Needless to say, in the event of the respondenttenant 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 petitionerlandlord will be at liberty to proceed with the execution of the order of eviction. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** nk