Ponamma Lekshmi Narayani v. P. Lalitha Mani and Others

## **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 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944** **R.C.REV.NO. 254 OF 2012** **AGAINST THE JUDGMENT DATED 29.03.2012 IN R.C.A.NO.40 OF 2007 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICDT JUDGE), KOLLAM AND THE ORDER DATED 02.07.2007 IN R.C.P.NO.19 OF 2006 OF THE RENT CONTROL COURT (MUNSIFF),** ## **KOLLAM** ## **REVISION PETITIONER/ADDITIONAL 2ND APPELLANT/LR OF THE** **PETITIONER:** **PONNAMMA LEKSHMI NARAYANI AGED 36 YEARS, D/O.LATE BHARATHAN PILLAI, SREEVILAS, THAMARAKULAM, KOLLAM.** **BY ADVS. SRI.LEO GEORGE SRI.T.T.RAKESH** ## **RESPONDENTS/ADDITIONAL RESPONDENTS 2 TO 4/LEGAL REPRESENTATIVES OF COUNTER PETITIONER*:** |**1**|**P.LALITHA MANI,**| |---|---| ||**VELOOR VEEDU, SREE KRISHNA NAGAR-231, ASRAMAM,**| ||**KOLLAM - 691 002.**| |**2**|**[B.PRASAD]****| ||**VELOOR VEEDU, SREE KRISHNA NAGAR-231, ASRAMAM,**| ||**KOLLAM-691 002.**| |**3**|**B.PRATHEESH**| ||**VELOOR VEEDU, SREE KRISHNA NAGAR - 231, ASRAMAM,**| ||**KOLLAM - 691 002.**| 2 R.C.Rev.No.254 of 2012 - **4** NARAYANI SOBHANA BHARATHAN, W/O LATE P.BHARATHAN PILLAI, SREEVILAS, THAMARAKULAM, KOLLAM.** - **5** PARAMESWARAN BHARATHAN, S/O LATE P.BHARATHAN PILLAI, SREEVILAS, THAMARAKULAM, KOLLAM.** - **6** NARAYANAN BHARATHAN, S/O LATE P.BHARATHAN PILLAI, SREEVILAS, THAMARAKULAM, KOLLAM.** - **7** NARAYANI LAKSHMI SOBHAN, D/O LATE P.BHARATHAN PILLAI, SREEVILAS, THAMARAKULAM, KOLLAM.** - ***THE WORDS “RESPONDENTS/ADDITIONAL RESPONDENTS 2 TO 4/LEGAL REPRESENTATIVES OF COUNTER PETITIONER” OCCURRING IN THE CAUSE TITLE OF THE R.C.R. IS SUBSTITUTED AS “RESPONDENTS/ ADDITIONAL RESPONDENTS 2 TO 4 AND ADDITIONAL APPELANTS 3 TO 6/LEGAL REPRESENTATIVES OF COUNTER PETITIONER AND LEGAL HEIRS OF DECEASED LANDLORD EXCEPT THE APPELLANT”.** - ****THE NAME OF THE SECOND RESPONDENT “B.PRASAD” IS SUBSTITUTED AS “B.PRADEEP” AND ADDL.RESPONDENTS 4 TO 7 ARE ADDED VIDE ORDER DATED 16.12.2015 IN I.A.NO.108 OF 2015.** **BY ADVS.** - **SMT.K.G.BINDU SMT.T.S.MAYA THIYADIL** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 04.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.254 of 2012 ## **O R D E R** ## Ajithkumar, J. This is a revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner is the legal representative of the landlord, who filed R.C.P.No.19 of 2006, seeking eviction of the tenant under Section 11(3) of the Act. The R.C.P. was dismissed. The landlord preferred an appeal under Section 18(1)(b) of the Act. During pendency of the appeal, the landlord died and his legal representative came on record. The appeal was also dismissed. Hence, this revision was preferred. 2. This Revision was admitted to file and ordered notice to the respondents on 26.07.2012. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. Eviction was sought on the ground that the landlord, who is a partner of a partnership firm, which has been engaged in cashew processing and export, wants to 4 R.C.Rev.No.254 of 2012 establish a laboratory for certification of cashew kernels, for which vacant possession of the petition schedule shop rooms is needed. Stating that the laboratory is proposed to be established in the petition schedule shop rooms and the adjoining vacant room, eviction was sought. The tenant, who is now no more, resisted the petition by filing a counter. It was contended that the need was not bona fide. The upstair portion of the building and also several other shop rooms are available vacant with the landlord which can be conveniently utilised for the proposed need. The tenant has been depending for his livelihood on the income derived from the business in the petition schedule shop rooms. On such grounds, the tenant took a stand that the petition is liable to be dismissed. 5. During pendency of the appeal, the tenant also died. His legal representatives are the present respondents. In the trial, PWs.1 and 2 were examined and Exts.A1 to A5 were marked on the side of the landlord. RWs.1 and 2 were examined and Exts.B1 to B4 were marked on the side of the tenant. 5 R.C.Rev.No.254 of 2012 6. In order to prove that there exists a genuine need for the landlord to get vacant possession of the petition schedule shop rooms, evidence of PWs.1 and 2 is mainly relied on. PW1 is the original landlord. PW2 is the officer-incharge and Chief Microbiologist in the local office of the Export Promotion Council of India. PW1 deposed that presently cashew kernels are being tested in the laboratory of the Export Promotion Council of India, which takes much time and brings about inconvenience. Every lot of products for export has to be tested in the laboratory and its quality to be ensured. If a laboratory is established by the partnership firm of the petitioner, the same would be of great help to the firm business. It was in the said circumstances, he decided to establish a sophisticated laboratory for testing the quality of cashew kernels in his own building. The petition schedule shop rooms, which bear door Nos.MC.2263 and 2264, along with door No.2266, which is already vacant are proposed to be used. 6 R.C.Rev.No.254 of 2012 7. PW2 deposed that it is possible for PW1 to establish such an establishment and an area of 2500 sq.ft. is ideal for such a laboratory. It is also his version that testing being done in the laboratory of the Export Promotion Council that takes time and establishing a laboratory by the petitioner would be helpful to his business. The learned counsel appearing for the petitioner would contend that the said evidence sufficiently has established the need of the landlord to be bonafide. The learned counsel appearing for the respondents, on the other hand, would submit that the very evidence of PW2 is enough to find that the need is not a genuine one. It is pointed out that going by the version of PW2, the area required to establish a laboratory is 2500 sq.ft.; whereas the actual area available, if all the three rooms together are put in use, is below 2000 sq.ft. Further, it is contended that the oral testimony of PW1 is not cogent and definite insofar as, whether he personally or the partnership firm wants to establish the laboratory. Further, the necessity to establish such a laboratory is not established through his evidence. 7 R.C.Rev.No.254 of 2012 8. Finding of the Rent Control Court was that the evidence let in by the landlord was sufficient to prove that the need urged was bona fide. The Appellate Authority after reappreciating the evidence reached a finding that the said finding of the Rent Control Court was incorrect. In that regard, the learned counsel appearing for the respondents would contend that in the absence of a cross-objection the Appellate Authority would not have interfered with the finding of the Rent Control Court. _Per contra_ , the learned counsel appearing for the petitioner contends that it was only a finding and even without filing a cross-objection the petitioner could assail the same. ## 9. In **Mangada Susheela and others v. Thavarayil Balakrishnan and others [2014 (1) KLT 1004]** , this Court considered the requirement of a cross-objection if a respondent in the appeal wants to assail a finding in juxtaposing the correctness of an order allowing or declining eviction on one of the grounds urged by the landlord. Paragraph Nos.11 & 12 read thus.- 8 R.C.Rev.No.254 of 2012 “11. There is no provision in the Act to prefer a Memorandum of Cross-objection in an appeal filed before the Appellate Authority. Section 18 of the Act provides for appeal. Sub-section (3) of Section 18 provides that the Appellate Authority shall send for the records of the case from the Rent Control Court and after giving the parties an opportunity of being heard, and if necessary, after making such further enquiry as it thinks fit either directly or through the Rent Control Court, shall decide the appeal. Sub-section (4) of Section 18 provides that the Appellate Authority shall have all the powers of the Rent Control Court including the fixing of arrears of rent. Section 20A of the Act confers power on the appellate and revisional authorities to remand the case for fresh disposal. Section 22 of the Act states that the provisions of Section 146 and Order XXII of the Code of Civil Procedure shall, as far as possible, be applicable to the proceedings under the Act. Under Section 23, the Rent Control Court and Appellate Authority shall have the powers which are vested in a Court under the Code of Civil Procedure, in respect of the matters mentioned in clauses (a) to (k). The power of remand is specifically conferred on the Appellate Authority, which is one of the powers available to the Civil Court under Section 107 and Rules 23 and 23-A of Order XLI the Code of Civil Procedure. The finding under the second proviso to Section 11 (3) of the Act is not a 9 R.C.Rev.No.254 of 2012 separate order on any of the grounds in the Rent Control Act, but it constitutes a finding which forms part of an order under Section 11 (3) of the Act. When the Rent Control Court found that the landlord did not establish the bona fide need and also found that the tenant failed to establish the ingredients of the second proviso to Section 11(3) of the Act, the necessary consequence is dismissal of the Rent Control Petition. The tenant cannot file an appeal against the finding under the second proviso to Section 11 (3) of the Act, since the ultimate finding in the Rent Control Petition in respect of the ground under Section 11(3) is in favour of the tenant. 12. It is well settled that no appeal lies under the Code of Civil Procedure against the finding in a suit. It is also well settled that normally when the ultimate decision in the suit is in favour of the defendant, he is not bound by the findings rendered therein in a subsequent suit, and those findings would not operate as res judicata. The tenant in the present case could not legally challenge the finding against him by filing an appeal. He could challenge it only in the appeal filed by the landlord against the order under Section 11 (3) of the Act. The tenant could do so by challenging the finding under the second proviso and at the same time, supporting the ultimate conclusion arrived at by the Rent Control Court, namely, dismissal of the Rent Control Petition. This the 10 R.C.Rev.No.254 of 2012 tenant can do without filing a Memorandum of CrossObjection. The Appellate Authority was not justified in holding that the tenant having not filed a Memorandum of Cross-Objection, he could not challenge the finding against him under the second proviso to Section 11 (3) of the Act. We set aside that finding of the Appellate Authority.” 10. In the light of the said proposition of law, there cannot be any doubt that an adverse finding with respect to the bona fides of the need urged as a ground for eviction can well be assailed without filing a cross-objection. 11. Section 11 of the Act deals with the 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 building for his own occupation or for the occupation by any member of his family dependent on him. As 11 R.C.Rev.No.254 of 2012 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. 12. 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 12 R.C.Rev.No.254 of 2012 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 **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 13 R.C.Rev.No.254 of 2012 ## **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 provisos to Section 11(3) of the Act. 14. Viewed in the light of the law laid down by the Apex Court and this Court in the decisions referred to above, the question is whether the landlord put forth the need honestly and sincerely. It is undisputed that the landlord and members of his family are involved in the business, including 14 R.C.Rev.No.254 of 2012 export of cashew kernels. Of course, no evidence other than oral testimony of PW1 is available with regard to the existence of a partnership firm. When PW1 deposed that he, as well as the members of his family, are involved in the business and for enhancing the convenience of their business, a sophisticated quality testing laboratory is proposed to be established, it cannot be said that the said desire is dishonest or ingenuine. 15. PW2 only deposed that an area of 2500 sq.ft. would be ideal to establish a laboratory. He did not state that such an area is absolutely necessary for the establishment of a laboratory. There is nothing on record to show that there is any stipulation regarding the area for the establishment of a laboratory for testing quality of cashew kernels. In the light of the said evidence, we are of the view that the need urged by the landlord is genuine and the cause of action survives the death of the original tenant. 16. The Rent Control Court held that vacant space is available with the landlord, and therefore, the demand for 15 R.C.Rev.No.254 of 2012 eviction of the tenant from the petition schedule shop rooms, cannot be allowed. The Appellate Authority stated that the said finding may not be correct; but did not proceed to consider that question in the light of its finding that the need urged was not bona fide. 17. From the evidence, it has come out that the firstfloor area of the building in question has been lying vacant. PW1 admitted that fact. His explanation is that the said space has been provided with locker facility and cabins, where the proposed laboratory cannot conveniently be accommodated. There is not much evidence regarding the existence of such a security system or cabins in the first-floor area. Even if there is, that is not a reason for not utilising that space for the establishment of the laboratory. 18. The learned counsel appearing for the petitioner would submit that other than stating that several buildings are available with the landlord, the tenant did not furnish details of such vacant rooms. No doubt, it is the burden of the tenant to point out vacant rooms available with the landlord in order 16 R.C.Rev.No.254 of 2012 to attract the first proviso to Section 11(3) of the Act. 19. In the objection filed by the tenant, it was contended that the petitioners and their son have several other vacant rooms suitable for the need they have urged. It has come out in evidence that the rooms they intended are the room bearing door No.MC 2266 and the upstairs portion which is a hall. 20. It is the burden of the tenant to plead and prove availability of vacant rooms in order to attract the first proviso to Section 11(3) of the Act. In **Kunhamina K v. V.K.T.Aboobacker Haji [2016 (3) KLJ 247],** this court held that the primary burden is on the tenant to prove that the landlord is in possession of another building and if it is proved, the burden shifts to the landlord to give special reasons as to why he has not chosen to occupy that building to the satisfaction of the court. In **Kunju T.P v. Fathima and others [2014 (3) KLT 563]** this court held that the landlord need not give the particulars of all the premises under his possession to claim an order of eviction under Section 11(3) 17 R.C.Rev.No.254 of 2012 of the Act. In **Dineshan Pillai P.B v. Joseph @ Jose [2019** **(3) KLT 104]** this court took the view that it is obligatory on the part of the tenant to plead and prove the identity of the vacant building in the possession of the landlord. In the absence of specific pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be said that the respondent/tenant has not discharged the initial burden of proof under the first proviso to Section 11(3) of the Act. 21. In **Lainakalillath Kooliyangal Kamarunnisa and others v. A. Shabeer [2019 (4) KLJ 508]** , this Court endorsed the said view. However, it was explained that it may be fair and reasonable, though not imperative, for a landlord to disclose in his pleadings specific details of any vacant building in his possession and explain the special reason, as to what prevented him from occupying the building for the purpose of satisfying his alleged bona fide need. 22. In **Chethil Tharemmal Rasheeda v. Peedikayilakath Muhammad [2021 (6) KLT 751]** , the 18 R.C.Rev.No.254 of 2012 view that taken is that it is the burden of the tenant to prove the availability of vacant rooms with the landlord, and only on such proof, the landlord has the liability to show special reasons if to get an order of eviction. While considering a similar question, this Court in **Kakkottakath Puthiyapurayil Muhammad Ali and others v. Kakkottakath Puthiyarambath Mahamood and others [2022(4) KLT 221]** held that the tenant is bound to disclose the identity of vacant building in the possession of the landlord in order for him to pursue his claim for the benefit of the first proviso to Section 11(3) of the Act. 23. Here, the tenant has specifically contended that a vacant area is available in the same building. PW1 admitted that he got vacant possession of the upstairs portion during the pendency of the Rent Control Petition. In the light of that admission, the landlord owes an explanation for not occupying the said space for the projected need. As pointed out above, the explanation offered by the landlord is insufficient. Therefore, we are of the view that the landlord is disentitled 19 R.C.Rev.No.254 of 2012 from claiming eviction of the respondent from the petition schedule shop rooms in view of the first proviso to Section 11(3) of the Act. 24. Coming to the second proviso to Section 11(3) of the Act, both the courts below did not accept the plea of the tenant. RW1, the 2[nd] respondent, admitted before the court that the tenants have another business. He also admitted that other vacant rooms are available in the locality. The respondents examined the Accommodation Controller as RW2 and got Ext.X1, vacancy register, marked. In the light of the categoric admission of RW1, the said evidence has no relevance. Therefore, we do not propose to interfere with the findings of the courts below rejecting the plea of the tenants under the second proviso to Section 11(3) of the Act. 25. Since the petitioner is not entitled to claim eviction of the respondents on account of bar under the first proviso to Section 11(3) of the Act, the concurrent view taken to dismiss the R.C.P. is liable to be confirmed. We do so and dismiss this 20 R.C.Rev.No.254 of 2012 ## Revision. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr