Ponnamma Lekshmi Narayani v. Mohammed Iqbal 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. 251 OF 2012** **AGAINST THE JUDGMENT DATED 29.03.2012 IN R.C.A.NO.36 OF 2006 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KOLLAM AND THE ORDER DATED 31.07.2006 IN R.C.P.NO.5 OF 2005 OF THE RENT CONTROL COURT (PRINCIPAL** ## **MUNSIFF), KOLLAM** ## **REVISION 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:** - **1 MOHAMMED IQBAL AGED 61 YEARS, S/O.LATE M.M.HANEEFA, NASEEMA MANZIL, ASRAMAM P.O., KOLLAM - 691002.** - **2 MOHAMMED SALIM, AGED 59 YEARS, S/O.LATE M.M.HANEEFA, NASEEMA MANZIL, ASRAMAM P.O., KOLLAM - 691002.** - **3 MOHAMMED SHERIFF, AGED 56 YEARS, S/O.LATE M.M.HANEEFA, NASEEMA MANZIL, ASRAMAM P.O., KOLLAM - 691002.** - **4 NAZEEMA, AGED 52 YEARS, D/O.LATE M.M.HANEEFA, NASEEMA MANZIL, ASRAMAM P.O., KOLLAM - 691002.** 2 R.C.Rev.No.251 of 2012 - **5 SHAMSAR, AGED 46 YEARS, S/O.LATE M.M.HANEEFA, NASEEMA MANZIL, ASRAMAM P.O., KOLLAM - 691002.** - **6 NOORJAHAN, AGED 44 YEARS, D/O.LATE M.M.HANEEFA, NASEEMA MANZIL, ASRAMAM P.O., KOLLAM - 691002.** - **7 MUMTHAZ, AGED 42 YEARS,** - **D/O.LATE M.M.HANEEFA, NASEEMA MANZIL, ASRAMAM P.O., KOLLAM - 691002.** **BY ADVS.** **SRI.HARISH GOPINATH SRI.R.S.KALKURA SRI.M.S.KALESH SMT.A.V.PRIYA** **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.251 of 2012 ## **O R D E R** ## Ajithkumar, J. R.C.P.No.5 of 2005 was filed by the original landlord seeking eviction of the respondents-tenants under Section 11(3) of the Act, 1965, before the Rent Control Court (Principal Munsiff), Kollam. The R.C.P. was dismissed as per the order dated 31.07.2006. An appeal was preferred under Section 18(1)(b) of the Act by the original landlord before the Rent Control Appellate Authority (II Additional District Judge), Kollam. During the pendency of the appeal, the original landlord died and hence additional 2nd appellant (petitioner herein), who is his legal representative, came on record. The appeal was also dismissed as per the judgment dated 29.03.2012. Challenging the said judgment and order, this revision under Section 20 of the Act has been filed. 2. On 26.07.2012, this revision was admitted to file and notice was ordered to be served on the respondents. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 4 R.C.Rev.No.251 of 2012 4. Eviction was sought on the ground that the wife of the original tenant, who is his dependent, needed to open a retail outlet of cashew kernels in the petition schedule shop room. The claim was resisted by the respondents contending that there was no need for the landlord’s wife to start such a business. She does not have any experience or capacity for the same. The landlord and his wife have several other shop rooms, which are suitable for the projected need. The respondents are depending for their livelihood on the income derived from the petition schedule shop room and no other suitable building is available in the locality to shift their business. 5. Before the Rent Control Court, PW1 and 2 were examined on the side of the petitioner. Ext.A1 to A12 were marked. The 3rd respondent in the R.C.P. was examined as RW1. After hearing both sides, the Rent Control Court came to the conclusion that the need urged by the petitioner was not bona fide. The further finding was that the petitioner was in possession of other rooms, which are suitable for the purpose 5 R.C.Rev.No.251 of 2012 projected by them. In regard to the second proviso to Section 11(3) of the Act, the finding was against the respondents. The dismissal of the Rent Control Petition was challenged before the Appellate Authority. During pendency of the appeal, the original landlord died and the additional 2nd petitioner was brought on record. She claimed title of the petition schedule shop room on the basis of a Will and on finding the claim genuine, she was allowed to continue the proceedings. The Appellate Authority confirmed the finding of the Rent Control Court with respect to the need urged by the petitioner. However, the finding that the petitioner has been in possession of other rooms suitable for the purpose, was reversed. The finding with reference to the plea under the second proviso to Section 11(3) of the Act of the Rent Control Court has been confirmed. Thus, the Appellate Authority upheld the order of the Rent Control Court dismissing the petition for eviction on the ground of bona fide need. 6. The learned counsel appearing for the petitioner would submit that the Appellate Authority did not appreciate 6 R.C.Rev.No.251 of 2012 the evidence in the proper perspective and that was why the finding on the bona fides of the need went against the petitioner. PW2 is the wife of the original petitioner. The present landlord, who is the petitioner herein, is the daughter of the original landlord and mother of PW2. This petition has been filed stating that the petitioner wants vacant possession of the petition schedule shop room for the purpose that PW2, who is a dependent of the petitioner, for the purpose of starting a retail outlet in cashew kernels. PW2 deposed in court regarding her proposal to start such a business. All her family members are involved in cashew business. They have business of export in cashew nuts. The idea of PW2 is to start a retail outlet for the sale of cashew kennels, which could not be exported. 7. PW1 is the power of attorney of the original landlord. His evidence has no much relevance insofar as the need urged by the petitioner is concerned. The evidence of PW2 was found sufficient by the Rent Control Court to prove that the need she had urged is bona fide. However, the 7 R.C.Rev.No.251 of 2012 Appellate Authority took a different view by holding that it was not a necessity for PW2 to start such a business and she did not have a definite idea as to the nature of business proposed to start. PW2 has categorically stated that for the sale of non-exportable cashew nuts, she wants to start a retail outlet in the petition schedule shop room. On going through the evidence of PW2, and also the assertions of RW1 it is obvious that the petition schedule shop room is suitable to conduct such a business. Of course, the oral testimony of PW2 contains a few inconsistencies, but a reading of the evidence as a whole, definitely shows that her proposal to start a retail outlet for cashew kernels is a sincere and genuine outcome of her desire. 8. It is contended that PW2 is aged and therefore it is not viable for her to start such a business. Also, it is contended that since it was not at all a need or necessity for her to generate income for her livelihood by conducting a business, it cannot be said that the need put forward is a bona fide one. 8 R.C.Rev.No.251 of 2012 9. This Court in **Gireeshbabu T.P. v. Jameela and others [2021 (5) KHC SN 30]** considered the question whether the financial position of the dependent of the landlord is a consideration for deciding the bonafides of the need. It was held, “16. A reading of the provisions under Section 11(3) of the Act makes it explicitly clear that, the landlord can approach the Rent Control Court seeking an order of eviction, 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. The bona fide need projected in a Rent Control Petition seeking eviction under Section 11(3) of the Act, for own occupation of the landlord or for the occupation by any member of his family dependent on him, need not be for the livelihood of the landlord or any member of his family dependent on him. Therefore, the fact that the landlord is an affluent person is of no consequence, if he proves the bona need for own occupation projected in the Rent Control Petition, for eviction under Section 11(3) of the Act. In Ismail v. Kesavan (2004 KHC 543 : 2004 (2) KLT 56 : 2004 (1) KLJ 579 : ILR 2004 (2) Ker. 342) a Division Bench of this Court, in the context of Section 11(3) of the Act, held that dependency does not 9 R.C.Rev.No.251 of 2012 mean financial dependency, but dependency for the building which belongs to the landlord. Therefore, the fact that the dependent family member of the landlord is an affluent person is of no consequence, if the landlord proves the bona need projected in the Rent Control Petition for occupation of any member of his family dependent on him, for eviction under Section 11(3) of the Act. 17. Since the bona fide need projected in a Rent Control Petition seeking eviction of the petition schedule shop room under Section 11(3) of the Act, for starting jewellery business by the landlords need not be for their livelihood, the fact that the landlords, namely, Kuzhichalil Abdurahiman and his wife Jameela have extensive landed property and getting considerable rental income is of no consequence, if they prove the bona need for own occupation projected in the Rent Control Petition. Therefore, we find no merit in the contention of the tenant that, since the landlords have extensive landed property and getting considerable rental income they have no genuine need for vacant possession of the petition schedule shop room and therefore the bona fide need projected in the Rent Control Petition is only a ruse to evict the tenant from the petition schedule shop room.” 10. Section 11 of the Act deals with the eviction of tenants. As per Section 11(1), notwithstanding anything to the 10 R.C.Rev.No.251 of 2012 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 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. 11 R.C.Rev.No.251 of 2012 ## 11. 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 must be manifested in actual need so as to 12 R.C.Rev.No.251 of 2012 convince the court that it is not a mere fanciful or whimsical desire. 12. 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 entitled for an order of eviction under 13 R.C.Rev.No.251 of 2012 Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 13. The Appellate Authority while reversing the finding of the Rent Control Court has given the reason that it was not necessary for PW2 to start such a business. Also, it is pointed out that PW2 did not know the exact details of the petition schedule shop room, where she proposes to start the business. We are of the view that said reasons are insufficient to discredit the evidence of PW2, with reference to her proposal to start the business. Viewed the above facts in the light of the law laid down in the aforesaid decisions, we hold that the petitioner has established that the need she has projected as a ground for eviction is bona fide. 14. The learned counsel appearing for the respondents would contend that there are several rooms available in the possession of the landlord, and therefore, she is disentitled from claiming eviction. It is contended that no reason whatsoever has been furnished by the petitioner for not occupying such vacant rooms for the purpose. What has come out in evidence is the 14 R.C.Rev.No.251 of 2012 ground floor room and the space on the first floor of the building. Regarding the ground floor room it is contended that the said room is enough for PW2 to do the proposed business. Explanation has been offered for both the premises. The vacant room available on the ground floor along with another room, in respect of which eviction has already been sought by filing another Rent Control Petition, is proposed to be used by the landlord for establishing a cashew nut quality testing laboratory. When the landlord already initiated proceedings saying that the vacant room said to be available is required for him for his own occupation, it cannot be said that the said room is actually available to be spared for the use of PW2. The upstairs area is a hall. PW2 deposed that said area has continuously been used by banking institutions and facilities for occupying by such institutions are available in that space. It is therefore not feasible to put to use for a retail business as proposed by PW2. That is a sufficient explanation for non-occupying the said first-floor area. 15. That apart, the business proposed by PW2 is a retail outlet in cashew kernels. When the space on the ground 15 R.C.Rev.No.251 of 2012 floor is available, which in all probability is convenient for a retail business, it is illogical to ask the landlord to opt for the first-floor area for that business, which obviously is not suitable for such a business. In the said circumstances, we are of the view that availability of one room on the ground floor or the space on the first floor is not a reason to decline the claim for eviction under the first proviso to Section 11(3) of the Act. 16. The original tenant is no more. His legal representatives, respondents 1 to 9 claimed the benefit of the second proviso to Section 11(3) of the Act. RW1, who is the 3rd respondent deposed that he and respondents 2 and 5 are now conducting business in the petition schedule premises. RW1 deposed that they are depending for their livelihood on the income derived from the business there. He also deposed that no other suitable building to shift their business is available in the locality. But in the nature and circumstances of this case, the oral testimony of RW1 alone is totally insufficient to prove that claim. No document or independent 16 R.C.Rev.No.251 of 2012 evidence in proof of the income derived from the business or that of the other respondents has been let in. 17. 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. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003 (2) KLT 230]** held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 18. This view regarding the burden of proof has been approved by the Apex Court in **Kunhamma @ Lakshmi Ammas Children and another v. Akkali Purushothaman and others [(2007) 11 SCC 181],** where it was observed, 17 R.C.Rev.No.251 of 2012 “From a perusal of the judgment of the Full Bench of the Kerala High Court reported in Francis v. Sreedevi Varassiar [2003 (2) KLT 230] we observe that the onus lies on the tenant to prove that he was dependent on the income derived from the business being carried on from the demised premises and that there was no other suitable building to which he could shift his business.” 19. When it is the absolute burden of the respondents to prove the ingredients of the second proviso, the oral testimony of RW1 unsupported by any other evidence, is not sufficient to prove such facts. Non-availability of alternative building in the locality is a fact, which can be established by adducing independent evidence. The respondents did not venture to bring on record any evidence in that behalf. In the said circumstances, we are of the view that the finding of the Appellate Authority that the respondents are not entitled to get the benefit of the second proviso to Section 11(3) of the Act is not liable to be interfered with. 20. We are of the view that the Appellate Authority as also the Rent Control Court went wrong in dismissing the Rent Control Petition. The revision petition is therefore liable to be 18 R.C.Rev.No.251 of 2012 allowed and we do so. The judgment dated 29.03.2012 in R.C.A.No.36 of 2006 of the Appellate Authority and the order dated 31.07.2006 in R.C.P.No.5 of 2005 of the Rent Control Court are set aside. R.C.P.No.5 of 2005 is allowed under Section 11(3) of the Act. 21. Considering the facts and circumstances of the case and the submission of the learned counsel appearing for the respondents to grant a period of atleast six months to surrender vacant possession of the petition schedule shop room, 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 respondents-tenants 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 they will surrender vacant possession of the petition schedule shop room to the petitioner-landlady within six months from the date of this order and that, they shall not induct third parties into possession of the petition 19 R.C.Rev.No.251 of 2012 schedule building and further they 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 respondents-tenants 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 respondents-tenants 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-landlady 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