Paryantavida Anshad v. Kolayakkarakath Puthiya Purayil Noorjahan

## **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** **RCREV. NO. 21 OF 2022 AGAINST JUDGMENT DATED 22.12.2021 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THALASSERY IN R.C.A NO.117 OF 2016 AGAINST ORDER DATED 30.03.2016 OF THE RENT CONTROL COURT(MUNSIFF), TALIPARAMBA IN R.C.P.NO.65 OF 2014** ## **PETITIONER-APPELLANT-RESPONDENT:** **PARYANTAVIDA ANSHAD** **AGED 37 YEARS S/O.ASHRAF, EZHAM MILE, TALIPARAMBA AMSOM, THRICHAMBARAM DESOM, P. O. TALIPARAMBA, TALIPARAMBA TALUK, KANNUR DIST., PIN - 670 141. BY ADVS. A.C.VENUGOPAL VIDHYA. A.C** ## **- - RESPONDENT RESPONDENT PETITIONER:** ## **KOLAYAKKARAKATH PUTHIYA PURAYIL NOORJAHAN** **AGED 44 YEARS W/O.C.K.UMMERKUTTY, BADARIYA NAGAR, TALIPARAMBA AMSOM DESOM, P. O. TALIPARAMBA, TALIPARAMBA TALUK, KANNUR DIST., PIN - 670 141. BY ADVS. R.SURENDRAN S.MAYUKHA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.R.No.21 of 2022 ## **O R D E R** ## Ajithkumar, J This revision petition under Section 20 of the Kerala Buildings (Lease and Rent control) Act, 1965 was filed by respondent-tenant in R.C.P.No.65 of 2014 on the file of Rent Control Court, Talipparamba. The respondent landlord sought eviction under Sections 11(3), 11(4)(iii) and 11(4)(v) of the Act. The Rent Control Court ordered evictions under Section 11(3) and 11(4)(v) of the Act. Petitioner challenged the said order by preferring an appeal under section 18(1)(b) of the Act. The Appellate Authority (Additional District Judge-III), Thalassery dismissed the appeal. Feeling aggrieved thereof, this revision petition has been filed. 2. On 24.01.2022, this Court admitted the revision petition and ordered notice to the respondents. Respondents entered appearance through his learned counsel. Execution of the order of eviction was stayed as per order dated 24.01.2022 for a period of one month. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. Grounds for eviction survive for consideration are 3 R.C.R.No.21 of 2022 bonafide need of the petition schedule shop room for own occupation and cessation of occupation of the petition schedule shop room by the petitioner continuously for more than six months without reasonable cause. 5. Husband of the respondent-landlady has been working abroad. He has decided to come back and start a business. He, being a dependent on the respondent in terms of getting a premises for his starting a business, eviction of the petitioner from the petition schedule shop room was necessitated. The respondent is not in possession of any other suitable building. The further allegation is that the petitioner has not been occupying the petition schedule shop room for more than a year next before filing the petition. There is no sufficient reason for not occupying the room. In fact, the petitioner has another business and hence it is not required for him. Those were the broad reasons stated in support of the plea for eviction. 6. The petitioner resisted the eviction petition by filing a counter statement. Contentions are the following: Respondent was laid up due to illness for a period of one week. Making use of that opportunity, the respondent filed the 4 R.C.R.No.21 of 2022 petition and took out a Commission. It was absolutely incorrect that he ceased to occupy the building for more period. Husband of the respondent is abroad. It was falsely stated that he came back and therefore he required the petition schedule shop room to start a stationery business. He, in fact, does not have any intention to start a business. Such a reason is set forth as a pretext for eviction only. The petitioner is depending for his livelihood solely on the income derived from the business in the petition schedule shop room. No other suitable building is available in the locality. In view of those reasons, the respondent is not entitled to claim eviction of the petitioner. 7. The Rent Control Court examined PWs 1 to 3 and RW1 and received Exts. A1, B1 to B5 and C1 in evidence. After hearing both sides, the Rent Control Court ordered eviction under Section 11(3) and 11(4)(v) of the Act, but rejected the claim under Section 11(4)(iii). The Appellate Authority re-appreciated the evidence in detail. Evidence available on record and the relevant case law were considered in the light of the pleadings and held by the Appellate Authority that there was no reason to interfere with the findings entered into by the Rent Control Court. 5 R.C.R.No.21 of 2022 8. The learned counsel appearing for the petitioner assailed the findings regarding bonafides of the respondent mainly on the ground that true facts were not placed before the Court. It was averred in the petition that husband(PW2) of the respondent deserted his job abroad and came back, and that was the immediate requirement of his starting a business. It has, however, come out in evidence that he was still working abroad. 9. PW2 appeared before Court and deposed regarding his decision to start a stationery business. The reason is that he could not continue his job abroad. It is the specific case of the landlady that her husband after abandoning his job abroad wanted to start a stationery business in the petition schedule room. Whether he has already returned to India or he proposes to return only, may not make much difference. What is to be tested is whether the need urged is honest, sincere and therefore bonafide. Not only the landlady, but her husband also deposed in Court regarding the projected need. It is a matter of common knowledge that a private employment abroad is not stable and at one point of time every such person has to return home. When PW2 says that he decided to return and to start a business in the shop room owned by his 6 R.C.R.No.21 of 2022 wife, there is no reason to discard the said assertion saying it to be not bonafide. Both the courts below after considering every such aspect of evidence, have come to the conclusion that the need urged by the respondent is bonafide. We are of the view that the said finding is legal and right. No manifest error is there to the finding. 10. 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.** 7 R.C.R.No.21 of 2022 **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. 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. 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 8 R.C.R.No.21 of 2022 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. 12. In the light of the principles of law mentioned above, we do not intend to interfere with that finding of the Rent Control Court and the Appellate Authority which, in our view, are not suffering from any illegality, irregularity or impropriety. 13. The petitioner has no serious contention with reference to the first and second provisos to Section 11(3) of the Act. From the evidence, we find that the respondent is not in possession of any other vacant room, which can be used for the projected purpose. It is found prima facie that the petitioner has other sources of income and other vacant rooms are available in the locality. The petitioner, although deposed before Court as RW1, did not venture to let in any independent evidence to prove the ingredients of the second proviso to Section 11(3). Taking all such matters into account, we find that the order of eviction under Section 11(3) of the Act passed by the Rent Control Court, which stands confirmed by the Appellate Authority is not liable to be interfered with. 9 R.C.R.No.21 of 2022 14. The Apex Court in **Dunlop India Limited v. A.A Rahna and another [(2011) 5 SCC 778)]** , held that the word “occupy” used in Section 11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. This Court in **Kurian Thomas v. Sreedharan Menon (2004** **(3) KLT 326]** held that the tenant need not abandon the building so as to attract S.11(4)(v) of the Act. Landlord is also not expected to establish that the tenant has abandoned the building so as to attract S.11(4) (v) of the Act. In **Mahesh Babu v. Kuttiyil Meethal Moidu [2017(4) KLT 884]** this Court reiterated the principle in the aforesaid decisions and, further held that occupation in the context of Section 11(4)(v) of the Act with respect to a commercial building means occupation by conducting of business and not a mere physical presence in the shop and the word 'occupy' has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. 15. This Court in **Simon v.Rappai [2008 (3) KLT 121)** held that as far as the ground available under Section 11(4)(v) is 10 ## R.C.R.No.21 of 2022 concerned, it is well settled that if the landlord has discharged the initial burden, it is upto the tenant to lead evidence in the matter to show that he has been conducting business in the premises. In **Abbas v. Sankaran Namboodiri [1993(1) KLT 76]** , while examining the question, this Court held that, the word 'occupation' is used to denote the tenant's actual physical use of the building either by himself or through his agents or employees and legal possession is not sufficient. 16. The petitioner was conducting a business in the petition schedule shop room. In order to prove the allegation that the petitioner ceased to occupy the petition schedule room for more than a year before filing of the Rent Control Petition, a Commission was taken out. The Commissioner vide Ext.C1 reported that at the time of his visit, the petition schedule shop room was found closed. PW1 deposed that the shop has been remaining closed for more than a year. From the said evidence, it was prima facie proved that the respondent ceased to occupy the shop room for quite a long period. In such circumstances, it is the burden of the petitioner to prove either that he did not cease to occupy or that the cessation of occupation was for sufficient 11 R.C.R.No.21 of 2022 reason. The petitioner has produced Exts.B1 to B5 in order to substantiate that he has been conducting business continuously. He deposed before Court that for a short period only, the shop was closed. He asserted on the strength of Ext.B1, a medical certificate that as he was ailing during that period, he could not open the shop for hardly a week. The Rent Control Court and the Appellate Authority considered the said evidence in detail. Both the authorities found that the shop was kept closed for more than a year. The said finding is supported by sound reasoning and supported by sufficient evidence. The law on the point referred to above sufficiently justify also the said finding. We do not find any reason to hold that the said finding is not legal, regular or proper. 17. 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, 12 R.C.R.No.21 of 2022 regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (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 at its discretion. 18. 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 13 R.C.R.No.21 of 2022 court can come to a different conclusion but not on a reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 19. 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 a 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 ‘propriety’ in - Section 20 of the Act, the revisional court will not be entitled to re 14 R.C.R.No.21 of 2022 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 landlord-tenant did not exist. 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 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 R.C.R.No.21 of 2022 ## 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** by 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. 22. In the light of the said legal principles, we are of the view that there is no reason to interfere with the order of the Rent Control Court or the judgment of the Appellate Authority which are not suffering from any illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 23. The learned counsel for the petitioner has made a request to afford six months' time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting his business. 24. Having considered all the aspects, we deem it 16 R.C.R.No.21 of 2022 appropriate to grant three 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 petitioner-landlord within three 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 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 17 ## R.C.R.No.21 of 2022 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** PV