Peter Shelton v. Ashkar Khan Musaliar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 R.C.REV.NO.298 OF 2018 AGAINST THE JUDGMENT DATED 13.04.2018 IN R.C.A.NO.13 OF 2016 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), KOLLAM AND THE ORDER DATED 28.01.2016 IN R.C.(OP) NO.42 OF 2011 OF RENT CONTROL COURT (ADDITIONAL MUNSIFF), KOLLAM** ## **REVISION PETITIONER:** **PETER SHELTON** **AGED 59 YEARS, PROPRIETOR, QUILON REFRIGERATOR, AUTHORISED VOLTAS DEALERS APPLIANCE AND REFRIGERATOR DIVISION, NEAR HOTEL AMBADI, AMSM BUILDINGS, BEACH ROAD, KOLLAM.** **BY ADVS. SHERRY J. THOMAS ARUN ALEX** ## **RESPONDENT:** **ASHKAR KHAN MUSALIAR, S/O.LATE A.M.SAINULABDEEN MUSALIAR, SHAFI MANZIL, KARICODE, KOLLAM, PIN-691 014.** **BY ADV K.P.RAMACHANDRAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.298 of 2018 ## **O R D E R** ## Ajithkumar, J. This Revision under Section 20 of the Act was preferred by the tenant, who is the respondent in R.C.(OP) No.42 of 2011 of the Rent Control Court (Additional Munsiff), Kollam. The respondent-landlord sought eviction of the petitioner and other co-tenants on the ground of arrears of rent and bonafide need. The Rent Control Court ordered eviction as per order dated 28.01.2016. Among the co-tenants, the petitioner alone preferred appeal before the Rent Control Appellate Authority (Additional District Judge-II), Kollam. The appeal, R.C.A.No.13 of 2016, was dismissed as per judgment dated 13.04.2018. Feeling aggrieved thereof, the petitioner has come up with this revision. 2. It was on the basis of the averments that rent since April, 2010 had been in arrears and the respondent is in need of the petition schedule shop room for conducting a retail business in cashew nuts, eviction was sought. The petitioner resisted the petition for eviction on the grounds that 3 R.C.Rev.No.298 of 2018 there was no arrears of rent and the need urged was not bonafide. The petitioner would also contend that the respondent is in possession of several other rooms and the petitioner is entitled to get protection from eviction under the second proviso to Section 11(3) of the Act, since he is depending for his livelihood solely on the income derived from his business in air conditioners in the petition schedule shop room and no other room is available in the locality suitable for shifting his business. 3. The Rent Control Court recorded oral testimonies of PWs.1 and 2 and RW1. Exts.A1 to A10, B1 to B17 and C1 and C1(a) were marked. After considering the said evidence and hearing both sides, the Rent Control Court ordered eviction on the ground of bonafide need and declined the plea for eviction on the ground of arrears of rent holding that in pursuance of the proceedings under Section 12 of the Act, the petitioner had paid the arrears of rent. The Appellate Authority did not favour the petitioner, in R.C.A.No.13 of 2016. Now, reiterating the same contentions, the petitioner has preferred this revision. 4 R.C.Rev.No.298 of 2018 4. On 08.10.2018 the matter was admitted and notice to the respondent was ordered. Execution of order of eviction was stayed initially for three weeks. The stay has been extended from time to time. 5. Today, we heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6. The learned counsel appearing for the petitioner would contend that the respondent failed to prove the need urged by adducing sufficient evidence and he has been in possession of several other rooms, for which reasons, he is not entitled to get vacant possession of the petition schedule shop room. It is contended that both the courts below placing undue reliance on the evidence of PWs1 and 2, ordered eviction, and it is unsustainable in law. A challenge to the maintainability, that the respondent being only a co-owner is not entitled to seek eviction without impleading other coowners, has also been raised. 7. There is no dispute as to the fact that the 5 R.C.Rev.No.298 of 2018 respondent is one of the heirs of the original landlord, late Sainuladbeen Musaliar. Exts.B3(a) to B3(c) rent receipts would show that the same were issued in the name of four children of the late Sainulabdeen Musaliar. Therefore, it is proved that the respondent is one among the persons, who used to receive rent from the petitioner for the petition schedule shop room. When a co-owner seeks eviction of the tenant, it cannot be resisted on the ground that the coowner has no such right. If any of the other co-owners raises any objection, of course, it may be possible for the tenant to challenge the petition on that ground. Reliance can be had on this aspect on the decision in **Sai Service Station Ltd.** ## **v. Dileep Ganesh [2022 (1) KLT 845],** wherein it was held,- “The law on the point was thus settled. Even if the eviction is sought for own occupation of the suing coowner and the petition is filed by him without junction of the other co-owner/s, it is maintainable as long as it is not objected by the non-suing co-owner/s.” Therefore, we hold that the petition filed by the respondent, who is a co-owner, is maintainable. 6 R.C.Rev.No.298 of 2018 8. The need urged is that the respondent, who is a wholesale trader in cashew nuts, wants to open a retail shop in the petition schedule shop room. It has come out that there are other rooms in the possession of the respondent. But from the evidence on record, it is found that those rooms are not abutting any public road and not suitable for a business proposed by the respondent. The Rent Control Court as well as the Appellate Authority considered the oral evidence of PW1, who deposed in detail regarding those aspects in order to reach a finding that the need urged by the respondent is bonafide. 9. 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 7 R.C.Rev.No.298 of 2018 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 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. 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 8 R.C.Rev.No.298 of 2018 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. 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 9 R.C.Rev.No.298 of 2018 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 entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second proviso to Section 11(3) of the Act. 12. Having considered the entire evidence in the light of the aforesaid principles of law, we are of the view that the findings of the courts below that the need urged by the 10 R.C.Rev.No.298 of 2018 respondent is bonafide, is not illegal, irregular or improper. 13. Regarding availability of other vacant rooms with the respondent also, there cannot be any finding against the respondent, especially when the petitioner could not point out availability of any vacant room with the respondent, which is reasonably suitable for his proposed business. 14. The petitioner is conducting business of air conditioners. He as RW1 deposed that he was an authorised dealer of Voltas Air Conditioners and if his business from the petition schedule shop room is shifted, he would not be able to continue the business. It is his further version that a huge amount is due to him from his creditors, who purchased products from his shop, and therefore, shifting of his business would be disastrous to him. It is also his version that the business in the petition schedule shop room is the sole source of income, upon which he can depend upon for his livelihood. When RW1 states that he is an authorised dealer of Voltas Air Conditioners, it is certainly his burden to prove with sufficient evidence that the same is his sole source of income. Of 11 R.C.Rev.No.298 of 2018 course, he has produced several documents, especially Exts.B8 to B17, which show that he has been getting orders from many institutions. But none of those documents would prove the income he has been deriving and also that his sole source of income is the business in the petition schedule shop room. In order to show that he is an authorised dealer of Voltas Air Conditioners, there is no convincing evidence. Even assuming that he is an authorised dealer, his claim that he should continue his business in the petition schedule premises itself all along cannot be accepted. It is his look out in case of eviction to find alternative accommodation. The report of the commissioner showed that other convenient rooms are available in the locality. Considering the evidence as a whole, it can only be said that the petitioner failed to prove that the sole source of his income is that from the business in the petition schedule shop room and also that no other suitable building is available in the locality to shift business. Therefore, we hold that he is not entitled to the benefit of the second proviso to Section 11(3) of the Act. 12 R.C.Rev.No.298 of 2018 15. Scope of interference to the concurrent finding rendered by the courts below, in exercise of the powers under Section 20 of the Act by this Court, is limited. 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 court can come to a 13 ## R.C.Rev.No.298 of 2018 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. 16. 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. 17. In **Thankamony Amma v. Omana Amma [AIR** 14 ## R.C.Rev.No.298 of 2018 **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. 18. Having considered entire facts, evidence and circumstances in the light of the aforementioned principles of law, we are of the definite view that there is no reason to interfere with the findings in the judgment of the Appellate Authority and also the order of the Rent Control Court on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 19. The learned counsel for the petitioner has made a request to afford nine month's time for vacating the premises pointing out the difficulty in finding another room and making 15 R.C.Rev.No.298 of 2018 necessary arrangements for shifting his business. 20. 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 petitioner-landlord 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 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, 16 ## R.C.Rev.No.298 of 2018 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 petitioner-landlord 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