PANDARAVALAPPIL THAJUDHEEN v. BINDU KL

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` **==> picture [8 x 7] intentionally omitted <==** ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945 ``` ``` RCREV. NO.62 OF 2024 ``` ``` AGAINST THE JUDGMENT IN RCA NO.26 OF 2019 OF ADDITIONAL DISTRICT COURT - II, THALASSERY ARISING OUT OF THE ORDER IN RCP NO.284 OF 2017 OF ADDITIONAL MUNSIFF COURT, KANNUR ``` ## **`REVISION PETITIONER/RESPONDENT/RESPONDENT:`** ``` PANDARAVALAPPIL THAJUDHEEN, AGED 54 YEARS S/O KP KAMAL, RESIDING AT BUILDING NO.ELP XXIX 588, NEAR FORCE MOTORS, SN COLLEGE JUNCTION, THOTTADA.P.O, KANNUR TALUK, PIN - 670007 ``` ``` BY ADV P.P.MUBASHIR ALI ``` ``` RESPONDENT/APPELLANT/PETITIONER: ``` ``` BINDU KL, AGED 48 YEARS WO M.KISHOR KUMAR, AGED 48 YEARS, RESIDING AT KRISHNA, THALAP P.O, KANNUR, KANNURTALUK, KANNUR DISTRICT.670002. THROUGH POWER OF ATTORNEY HOLDER M.KISHOR KUMAR, S/O. LATE KUNHIKANNAN, AGED 52 YEARS, RESIDING AT KRISHNA, THALAP P.O, KANNUR, KANNURTALUK, KANNUR DISTRICT, PIN - 670002 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev)No.62 of 2024 ## **O R D E R** ## G. Girish, J. The tenant in R.C.P.No.284 of 2017 of the Rent Control Court, Kannur is the revision petitioner. He suffered an adverse finding from the said court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') on 30.11.2018. However, he escaped from getting evicted since the Rent Control Court accepted his argument that the proceedings are premature in view of the directions contained in the decision of the Apex Court in **Mohammad Ahmad and Another v. Atma Ram Chauhan and Others [AIR 2011 SC 1940]** . In the appeal preferred by the landlord before the Rent Control Appellate Authority (Additional District Judge-II), Thalassery, the finding of the Rent Control Court was reversed, and eviction was ordered under Section 11(3) of the Act. Aggrieved by the above verdict of the Appellate Authority, the petitioner-tenant has approached this Court with this revision. 2. The petition schedule building in R.C.P.No.284 of 2017 was let out to the petitioner-tenant for commercial purpose. The fair rent of the above building was fixed by the Rent Control Court with effect from 25.09.2013. The respondent-landlord sought possession of the above building for accommodating her husband, a lawyer, who wanted to set up his office there. The tenant resisted the rent control 3 R.C.(Rev)No.62 of 2024 proceedings contending that the need projected by the landlord was not bona fide, and that the provisos to Section 11(3) of the Act were in his favour. After analysing the evidence adduced by the landlord through the oral testimony of her husband, examined as PW1 and the documents marked as Ext.A1 from the part of the landlord, and Exts.B1 to B3 from the part of the tenant, Rent Control Court found that the need of the landlord was bona fide, and that the tenant failed to establish the requirements of provisos (1) and (2) of Section 11(3) of the Act in his favour. However, the request for eviction was declined by accepting the argument of the tenant that the petition for eviction was premature in view of the directions of the Apex Court in **Mohammad Ahmad [AIR 2011 SC 1940]** . The Rent Control Appellate Authority reversed the above finding of the Rent Control Court in R.C.A.No.26 of 2019, observing that the relevant directions of the Apex Court in **Mohammad Ahmad [AIR 2011 SC 1940]** would operate only against eviction of the tenant within a period of five years from the date of fixing fair rent, and that there was absolutely no legal embargo in instituting a petition for eviction within the period of five years from the date of fixing fair rent, if the actual eviction of the tenant is sought to be made after the elapse of five years from the date of payment of revised rent as fixed by the court. Accordingly, the petitioner-tenant was directed to hand 4 R.C.(Rev)No.62 of 2024 over vacant possession of the petition schedule building to the respondent-landlord on the ground of bona fide need envisaged under Section 11(3) of the Act. 3. Heard the learned counsel for the revision petitioner. 4. The point to be decided in this revision is whether the impugned judgment of the Rent Control Appellate Authority directing eviction of the petitioner-tenant from the petition schedule building under Section 11(3) of the Act, is liable to be interfered with. 5. Before going into the question whether the requirements of Section 11(3) of the Act were established in this case, it is highly necessary to decide whether the proceedings initiated by the landlord for the eviction of the tenant is hit by any of the directions of the Apex Court in **Mohammad Ahmad [AIR 2011 SC 1940]** . Among the seven guidelines enumerated by the Apex Court in the said decision to minimise landlord-tenant litigation at all levels, the guideline No.(v) is extracted as follows: “(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of five years. Thus for a period of five years the tenant shall enjoy immunity from being evicted from the premises.” 6. The wordings in the aforesaid guideline are loud and clear that the legal embargo outlined therein is only against eviction of 5 ## R.C.(Rev)No.62 of 2024 the tenant within a period of five years from the time when the prevalent market rent assessed and fixed between the parties was being paid by the tenant. 7. As far as the present case is concerned, the final order of the Rent Control Court in the R.C.P was on 30.11.2018 which was 2 months and 5 years past 25.09.2013, the date when the tenant was mulcted with the liability to pay fair rent as per the order passed by the Rent Control Court in the relevant petition filed for fixation of fair rent. Therefore, the observation of the Rent Control Court that the petition for eviction was premature, was prima facie unsustainable. The Rent Control Appellate Authority has observed in the impugned judgment dated 15.09.2023 that, when the said appeal was being considered, 10 years have already been elapsed from the relevant date of fixation of fair rent, and hence the legal embargo in the eviction of the tenant within a period of five years from the relevant date of payment of market rent fixed by the Rent Control Court, was having no applicability at all. The finding of the Rent Control Appellate Authority in the above regard is perfectly in order. 8. The Rent Control Appellate Authority has observed in the impugned judgment that the law laid down by the Apex Court in **Ravi Khandelwal v. Taluka Stores (M/S.) [AIR 2023 SC 3240]** 6 R.C.(Rev)No.62 of 2024 [journal citation mistakenly stated] also favoured the above view. Interpreting the scope and ambit of Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Apex Court held in **Ravi Khandelwal [2023 INSC 615 : 2023 KHC OnLine 6700]** that when a legislation affords immunity to the tenant against eviction during a particular period, the spirit of such protection is fulfilled with the passage of prescribed time period, and it cannot be insisted that a fresh proceedings shall be instituted for eviction after the expiry of the above period, since it would lead to unnecessary multiplicity of litigation. 9. A Full Bench of this Court, in which one among us [Anil K. Narendran, J.] presided, has held in **Rahul v. K.Sudheesh** **[2023 (3) KHC 329]** that the statutory right of the landlord under Section 11 to get the tenant evicted from the tenanted premises on any of the grounds under Section 11 is not taken away by the guidelines and norms laid down by the Apex Court in **Mohammad** **Ahmad, [2011 (7) SCC 755]** , which were laid down by the Apex Court to avoid unnecessary litigations in court, that is, litigation initiated before the Rent Control Court on one ground or the other, because the landlords do not get reasonable rent akin to market rent. 7 R.C.(Rev)No.62 of 2024 10. In the light of the principles of law elucidated in the aforesaid decisions, the finding of the Rent Control Court that the institution of the R.C.P before the expiry of the prescribed period of five years from the payment of fair rent fixed by the Rent Control Court, is not permitted by the dictum laid down by the Apex Court in **Mohammad Ahmad [AIR 2011 SC 1940]** , is erroneous, and hence the dismissal of the R.C.P for the above reason was apparently wrong. The Rent Control Appellate Authority has rightly held the above aspect in the impugned judgment. 11. As already stated above, the bona fide need projected for the eviction of the tenant was that the husband of the landlady, a lawyer by profession, was in need of the petition schedule building for the functioning of his Advocate’s office. He tendered oral evidence before the trial court as PW1 in support of the above need. The petitioner-tenant could not bring out anything in evidence to show that the need of the landlady in the above regard was not bona fide, or that it was so claimed as a ruse for his eviction. It is pertinent to note that the tenant did not even choose to appear before the Rent Control Court and adduce evidence against the claim of the landlady. 12. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated that, 8 R.C.(Rev)No.62 of 2024 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 must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. ## 13. 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. 9 R.C.(Rev)No.62 of 2024 14. 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. ## 15. 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 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). ## 16. 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 10 ## R.C.(Rev)No.62 of 2024 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. 17. As far as the present case is concerned, the evidence adduced by the husband of the landlady as PW1 would convincingly establish that his need to have the petition schedule building for the use as Advocate’s office, is real, natural, sincere and honest. Thus, the findings of the trial court and Appellate Authority about the bona fides of the need projected by the landlady to have possession of the petition schedule building, are perfectly right. 18. 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. 19. 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, 11 ## R.C.(Rev)No.62 of 2024 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. 20. It is true that PW1, the husband of landlady, had admitted in his oral evidence before the trial court about the availability of vacant rooms belonging to the landlady in the upper floors of the building. However, the above witness also made it clear that the above rooms which are in the upper floors of the building are not convenient for his purpose since he wants the petition schedule room and the adjoining two rooms in the ground floor to be utilised for setting up Advocate’s office. PW1 further stated about his inability to climb stairs as the special reason why he could not utilise the vacant rooms on the upstairs for the functioning of Advocate’s office. Therefore, the 1[st] proviso to Section 11(3) of the Act is of no avail for the tenant for resisting the eviction sought for by the landlady. 21. Coming to the 2[nd] proviso to Section 11(3) of the Act, there is absolutely no evidence brought on record by the tenant to show that he is mainly depending on the income derived from the business being conducted in the petition schedule building for his 12 R.C.(Rev)No.62 of 2024 livelihood. Nor had the petitioner-tenant adduced any evidence pertaining to the non-availability of suitable buildings in the locality to shift his business. Thus it has to be held that the petitioner-tenant could not succeed in establishing that the provisos (1) and (2) of Section 11(3) of the Act favoured his continued occupation of the petition schedule building. 22. In the light of the discussions aforesaid, the conclusion is irresistible that there is absolutely no scope for any interference with the impugned judgment of the Rent Control Appellate Authority. 23. Accordingly, we find no merit in this revision, and order its dismissal. However, the respondent-tenant in the Rent Control Petition will be granted five months’ time to vacate the petition schedule building if he is ready to abide by the conditions stipulated hereunder: - (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 building to the petitioner-landlord within five months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop building; 13 ## R.C.(Rev)No.62 of 2024 - (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; - (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 building will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. Sd/- Sd/- **G. GIRISH, JUDGE** jsr/vgd