Poovan Dineshan v. Muhammed Sajil & Aroliyakath Kaitha Valappil Jameela

## **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 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944** **R.C.REV.NO. 99 OF 2022** **AGAINST THE JUDGMENT DATED 05.03.2022 IN R.C.A.NO.2 OF 2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THALASSERY AND THE ORDER DATED 30.10.2019 IN R.C.P.NO.268 OF 2016 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** ## **POOVAN DINESHAN,** **AGED 53 YEARS** **"KANDHI", NEAR ELECTRICITY OFFICE, MANNA, P.O. VALAPATTANAM, THROUGH POWER OF ATTORNEY HOLDER JISHA, AGED 46 YEARS, W/O.DINESHAN, RESIDING AT "KANDHI", NEAR ELECTRICITY OFFICE, MANNA, P.O. VALAPATTANAM, KANNUR-670 010.** **BY ADV MAHESH V RAMAKRISHNAN** ## **RESPONDENTS:** **1 MUHAMMED SAJIL, AGED 42 YEARS, S/O.ABDUL SALAM, RESIDING AT SAJID MANZIL, NEAR ELECTRICITY OFFICE, MANNA, P.O.VALAPATTANAM, KANNUR-670 010.** **2 AROLIYAKATH KAITHA VALAPPIL JAMEELA, AGED 66 YEARS, W/O.ABDUL SALAM, RESIDING AT SAJJIDA MANZIL, NEAR ELECTRICITY OFFICE, MANNA, P.O.VALAPATTANAM, KANNUR-670 010.** 2 ## R.C.Rev.No.99 of 2022 **BY ADV.V. RAMKUMAR NAMBIAR (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.99 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, is filed by the respondent-tenant in R.C.P.No.268 of 2016 on the files of the Rent Control Court (Additional Munsiff), Kannur. The respondents-landlords filed the rent control petition seeking eviction under Sections 11(2)(b) and 11(3) of the Act. The Rent Control Court allowed the rent control petition as per order dated 30.10.2019. The petitioner took up the matter in appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-III), Thalassery. The appeal, R.C.A.No.2 of 2020, was dismissed as per the judgment dated 05.03.2022. The said judgment and the order are under challenge in this revision. 2. On 20.06.2022, when this matter came up for admission, the respondents, who filed a Caveat, entered appearance through their counsel. 3. Heard the learned counsel appearing for the 4 ## R.C.Rev.No.99 of 2022 petitioner and also the learned counsel appearing for the respondents. 4. The respondents allege that the petitioner defaulted payment of rent from April, 2013 onwards. Although the rent was originally fixed as Rs.1,700/-, the rate has been periodically revised by adding 5% every year in terms of the mutual agreement and the rent during the relevant period was Rs.2,679/-. Despite issuing notice, the petitioner did not pay the rent and on that ground, eviction was claimed. Further, the 1[st] respondent claims vacant possession of the petition schedule shop room on the ground that he requires it for him to start a business in building materials saying that income from the flour mill now conducting is insufficient for his livelihood. 5. The petitioner resisted the claim for eviction by contending that the rate of rent he agreed was Rs.1,700/only and presently he was paying Rs.2,637.25, which he had paid till August, 2015. But the respondents did not issue receipts. The 1[st] respondent gets enough income from the 5 R.C.Rev.No.99 of 2022 flour mill which he has been conducting. The eviction now sought by the respondents is a pretext and their intention is only to get a higher rate of rent. The respondents are in possession of several other vacant rooms. On the other hand, the petitioner is depending for his livelihood solely on the income from the business in the petition schedule shop room and he is not able to shift his business for want of any suitable alternative building in the locality. 6. The Rent Control Court examined the 1[st] respondent as PW1 and received in evidence Exts.A1 to A3. On the basis of that evidence, the Rent Control Court found that the rate of rent, which is liable to be paid by the petitioner was Rs.2,637.25 and rent from April, 2013 remains in arrears. Further on finding that the need urged by the respondents was bona fide and none of the provisos to Section 11(3) of the Act gets attracted to the case, the Rent Control Court ordered eviction. 7. Before the Appellate Authority, the petitioner adduced oral evidence. The power of attorney of the petitioner 6 R.C.Rev.No.99 of 2022 was examined as RW1. The Appellate Authority considered the entire evidence on record. After re-appreciation of the evidence, the Appellate Authority found that there was no reason to deviate from the views taken by the Rent Control Court. The appeal was dismissed. 8. The learned counsel appearing for the petitioner would contend that Ext.A1 rent agreement was illegally accepted in evidence and only based on its recitals, the agreed rent was found to be Rs.2,637.25. The contention of the respondents was that going by the terms of Ext.A1, the rent would be Rs.2,679/- and the rent at the said rate should be paid by the petitioner. The courts below took the view that even if Ext.A1 is inadmissible in evidence for want of registration, admission of the petitioner being that he used to pay rent at the rate of Rs.2,637.25, there was no scope for further dispute. It was on the said premises that the Appellate Authority finally held that rent at the rate of Rs.2,637.25 since April, 2013 has been in arrears. The contention raised by the petitioner that he paid rent till August, 2015 was not accepted 7 R.C.Rev.No.99 of 2022 for want of any evidence in support thereof. Although RW1 was examined before the Appellate Authority, no further evidence in that matter has come on record. 9. The learned counsel appearing for the petitioner contended that although Ext.A1 was executed for a period of 11 months, there is a clause agreeing between the parties for yearly enhancement of the rent, and therefore, it requires registration. In order to exemplify that contention, he placed reliance on the decisions in **Chandrakala v. Soman [2004 (3) KLT 432]** and **Joseph Vilangadan and others v. M/s P.N.Writer & Co.Pvt.Ltd. [2010 (2) KHC 127]** . As per Section 17(1)(d) of the Registration Act, 1908, a document of lease of immovable property for a term exceeding one year alone requires registration. Ext.A1 is for a period of 11 months. Of course, there is a recital by which the parties mutually agreed on yearly enhancement of the rent. The period of lease has to be governed by the express agreement between the parties, which has been written down in the document. The provision for enhancement of the rent is a 8 R.C.Rev.No.99 of 2022 conditional one, depending upon the continuance of the lease. If the contention of the learned counsel for the petitioner is accepted, Ext.A1 becomes a perpetual lease in the light of the clause agreeing on yearly enhancement. That is not a logical interpretation of the document, and therefore, not acceptable. In **Chandrakala's** case, the lease in question was for a period of two years. In **Joseph Vilangadan's** case, the period of lease in question was three years. In respect of those documents only, the court took the view that the documents were compulsorily registrable, and therefore, the same could not be received in evidence. The said principle is not applicable in this case, since the period of Ext.A1 is only 11 months. In the view of that matter, we are of the view that there is nothing wrong with the courts below finding that the rate of rent due to be paid by the petitioner is Rs.2,637.25. The admission of the petitioner in that regard also justifies the said finding. 10. PW1, the 1[st] respondent, deposed in court regarding his desire to start a business in building materials in 9 R.C.Rev.No.99 of 2022 the petition schedule shop room. The petitioner is now conducting an automobile workshop in the petition schedule shop room. Regarding suitability of the said room for conducting a business as proposed by the respondents, there is no much dispute. The contention of the petitioner is that PW1 is getting sufficient income from the flour mill he has been conducting now, and therefore, there is no need or necessity for him to start a new business. The said contention was turned down by the courts below stating sufficient reasons. The fact that the landlord is already having a business is not a bar for his starting a new venture. The question then is only whether the need urged can be a ruse as alleged by the petitioner. 11. 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 10 ## R.C.Rev.No.99 of 2022 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. 12. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court 11 R.C.Rev.No.99 of 2022 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 convince the court that it is not a mere fanciful or whimsical desire. 12 R.C.Rev.No.99 of 2022 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 **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. 13 R.C.Rev.No.99 of 2022 14. Viewed in the light of the principle of law discussed above, we hold that the respondents successfully established that the need they have projected is bona fide. Hence, we confirm the finding of the courts below in that regard. 15. The contention of the petitioner that respondents are in possession of other vacant rooms is not supported by required pleadings or any evidence. It has not been pointed out that any particular room or building is available vacant with the respondents. No evidence is let in also in that regard. Therefore, we hold that the petitioner is not entitled to the benefit of the first proviso to Section 11(3) of the Act. 16. It is an admitted fact that the petitioner is abroad now. His wife, as his power of attorney, has been conducting the business. She is RW1. She admitted during her examination before the Appellate Authority that her husband is abroad for quite a long period. Although she claimed that he went abroad not for any employment, but for a different purpose, it is not supported by any evidence. The tenant has been abroad for years together, entrusting 14 R.C.Rev.No.99 of 2022 the business in the tenanted premises with his wife. So he cannot contend that his sole livelihood is the said business. 17. Regarding the second limb of the second proviso to Section 11(3) there is absolutely no evidence. Needless to say that the burden is on the tenant to prove both the limbs of the second proviso. 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. 15 R.C.Rev.No.99 of 2022 18. The petitioner did not adduce any reliable evidence to prove that no other building is available in the locality to which he can shift his automobile workshop. Hence, we are of the view the petitioner did not discharge his burden to claim the benefit of the second proviso to Section 11(3) of the Act. 19. 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 16 R.C.Rev.No.99 of 2022 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 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. 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 17 R.C.Rev.No.99 of 2022 confined to find out legality, regularity and propriety of the order impugned before it. ## 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 (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. 22. In the light of the above principles of law, the findings rendered by the Appellate Authority that the respondents are entitled to get an order of eviction of the petitioner under Section 11(2))b) and 11(3) of the Act from the petition schedule building is not liable to be interfered with by this Court in exercise of the powers under Section 20 of the Act. Hence, we hold that this rent control revision is 18 R.C.Rev.No.99 of 2022 devoid of merits, and the same is dismissed. 23. The learned counsel for the petitioner has made a fervent request to afford one year time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. The learned counsel for the respondents is agreeable to grant six months’ time. 24. 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 petitioners-landlords 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 19 ## R.C.Rev.No.99 of 2022 - 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 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 petitioners-landlords 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