P.P. Anupkumar v. A.K. Sribunesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943 RCREV.NO. 194 OF 2019** **AGAINST THE JUDGMENT DATED 19.01.2019 IN R.C.A No.28 OF 2016 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY, ADDITIONAL DISTRICT JUDGE - II, THALASSERY FILED AGAINST THE ORDER DATED 31.10.2015 IN R.C.P.No.32 OF 2012 ON THE FILES OF RENT CONTROL COURT(MUNSIFF), THALASSERY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **P.P.ANUPKUMAR AGED 41 YEARS S/O.RAGHAGVAN, BUSINESS, BUILDING NO.VIII/150, NEAR DOSTH GUARAGE, ERANHILI BRIDGE, P.O. ERANHOLI, ERANHOLI AMSOM DESOM, THALASSERY TALUK.** **BY ADV. ASHWIN SATHYANATH** ## **RESPONDENT/RESPONDENT/PETITIONER:** **A.K.SRIBUNESH S/O.CHANDRAN, AGED 44 YEARS, ERANHOLI AMSOM, VADAKKUMBAD DESOM, THALASSERY TALUK, REPRESENTED THROUGH POWER OF ATTORNEY HOLDER A.T.CHANDRAN, S/O. KANNAN, AGED 68 YEARS, BUSINESS, CHANDROTH VEEDU, ERANHOLI AMSOM, VADAKKUMBAD DESOM, THALASSERY TALUK. BY ADVS. SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SRI.BALU TOM SRI.BONNY BENNY SHRI.BEJOY JOSEPH P.J.** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 23.02.2022, THE COURT ON 10.03.2022 DELIVERED THE FOLLOWING:** 2 R.C.R No.194 of 2019 ## **O R D E R** ## Ajithkumar, J The revision petitioner is the respondent-tenant in R.C.P No.32 of 2012 on the file of the Rent Control Court (Munsiff), Thalassery. The respondent had filed the R.C.P seeking eviction of the petitioner from the petition schedule shop room under sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Rent Control court ordered eviction under 11(3) of the Act. The petitioner preferred an appeal before the Rent Control Appellate Authority (Addl. District Judge-II), Thalassery under Section 18(1)(b) of the Act, which was dismissed. Feeling aggrieved thereof, the petitioner filed this revision under Section 20 of the Act. 2. Respondent filed R.C.P Nos.32 of 2012, and 33 of 2012 which was against the tenant in the neighbouring room, together. Eviction was ordered in both R.C.Ps under Section 11(3) of the Act. Order of eviction in R.C.P No.33 of 2012 has become final. 3. Eviction was sought by the respondent for the reason that his father who is a dependent on the respondent needs the petition schedule shop room for the purpose of his starting a 3 R.C.R No.194 of 2019 charcoal business on a large scale. Petitioner resisted the claim contending that the need urged is not bonafide. The respondent is in possession of several other vacant rooms. The respondent and his father are very rich who do not want to start such a business. The need urged is only a ruse for eviction. Only income for the livelihood of the petitioner is what is derived from his business in the petition schedule shop room and no suitable alternative building or room is available in the locality. The petitioner is therefore entitled to get the benefit of the 2nd proviso to Section 11(3) of the Act. 4. In the joint trial of R.C.P Nos. 32 and 33 of 2012, oral evidence of PW1, the landlord and Rws. 1 and 2, the respective tenants was recorded. Exts.A1 to A21, B1 to B10, C1 and C2 were marked.(Though Exts.C1 and C2 were marked through RW1 and referred to in the order, Rent Control Court omitted to include it in the Appendix). The Rent Control Court after considering the aforesaid evidence, found that the need urged by the respondent was bonafide and the petitioner was not entitled to get protection from eviction under the provisos 1 and 2 to Section 11(3) of the Act. Consequently, eviction was ordered which was challenged by 4 R.C.R No.194 of 2019 the petitioner before the Appellate Authority, but without any success. 5. On 29.08.2019, this Court stayed execution of the order of eviction till 30.09.2019. The order has been extended from time to time. 6. Heard the learned counsel appearing for the petitioner and learned counsel appearing for the respondent. 7. The learned counsel appearing for the petitioner would contend that both the courts below failed to appreciate the evidence in the proper perspective resulting in failure of justice. Out of the nine rooms owned by the respondent, at least one room has been lying vacant going by the admission of PW1 and as evidenced by Ext.B1, but that fact was ignored by the courts below. Exts.A13 to 19 would show that many convenient rooms were let out by the respondent in 2011, after his father decided to start the charcoal business. The courts below failed to appreciate the said fact which would decry bonafides of the need urged by the respondent. The courts, instead, gave undue importance to an inadvertent statement made by RW1 that one Mr.Suresh Babu is in occupation of that room to find that no vacant room was available with the respondent. Accordingly the learned counsel 5 R.C.R No.194 of 2019 for the petitioner would submit that this is a case where the findings of both the authorities went wrong warranting interference of this Court. 8. The learned counsel appearing for the respondent, per contra, contends that the respondent did not let out any room anew but tenants already in possession were allowed to continue only. All that the respondent did was, he constructed a shed behind the existing building and let it out. The learned counsel would contend that in the nature of the proposed business, the shed was not at all suitable or convenient. The petition schedule room and the adjacent room that involved in RCP No.33 of 2012 are abutting the public road and therefore the respondent required vacant possession of the said rooms for the business of his father. It is further submitted that no other room has been in possession of the respondent and that fact has been admitted by RW1, the petitioner. As regards Exts.B1, the learned counsel for the respondent would submit that the same cannot be relied on to find vacancy of any room. For such reasons, it is submitted by the learned counsel for the respondent that the findings rendered by the courts below are correct and not liable to be interfered with. 6 R.C.R No.194 of 2019 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 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 7 R.C.R No.194 of 2019 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 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. 8 R.C.R No.194 of 2019 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 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. The definite case of the respondent is that his father had several businesses earlier, but taking into account his age, he 9 ## R.C.R No.194 of 2019 has decided to confine to the charcoal business he had been doing earlier. The respondent as PW1 deposed in court in detail regarding the reason for demanding eviction of the petitioner and the tenant in the adjoining room. These rooms have road frontage and have enough space to store charcoal in large quantities. It was for those reasons, the respondent demanded vacant possession of these two rooms. 13. Oral testimony of the petitioner proves that the said need is bonafide. One cannot say that the respondent and his father being rich, he does not want to conduct any business. It has come out in evidence that the father of the respondent had bus services and like business. He had stopped all such businesses and his plan now is to do trade in charcoal for which he wanted to store charcoal in large quantities. When the landlord gives such detailed reasons in support of his projected need and the necessity to have vacant possession of the petition schedule shop room, it cannot be said that the same is a mere pretext or a fanciful wish. 14. In **Venugopalan Nair v. Mohamedkunhi [2010(1) KLT 971,** this court held that the Rent Control Court is not expected to sit in judgment over the wisdom of the landlord to 10 R.C.R No.194 of 2019 identify one among his various tenanted rooms for conducting the proposed business. The right of pick and choose is conceded to the landlord when he has several tenants, has received recognition in rent control jurisprudence. The Court shall not intervene as long as it is shown that the option chosen by the landlord is smacked by malafides. Therefore it is not available for the petitioner to insist that the respondent could not have chosen the petition schedule shop room, especially when there is nothing on record to show that the respondent has any sort of enmity towards the petitioner. 15. Although there is a contention that the respondent and his father have several other buildings with them, there is no evidence except to prove that they have the building to which the petition schedule shop room forms a part. The learned counsel for the petitioner pointed out that in Ext.B1, room No.152A was shown as not occupied by anyone which is indicative of the fact that the said room has been lying vacant. PW1 admitted to a certain extent that room no.152A is sufficiently large. He however explained that the rooms on the roadside were selected by him for the intended purpose. RW1 during cross examination had submitted that the room suggested to have been lying vacant was, 11 ## R.C.R No.194 of 2019 in fact, in the possession of one Mr.Suresh Babu. He also admitted that all other rooms belonging to the respondent are occupied by the tenants. Alluding to the said aspect, the learned counsel appearing for the petitioner urged that such a solitary statement cannot be picked up and used to disbelieve a witness, for which he placed reliance on **Boramma v. Krishna Gowda and others [(2000) 9 SCC 214].** 16. In **Boramma** the Apex Court considered the nuances of the rule, it is not a sound rule of appreciation of evidence by picking up stray sentences in the oral testimony in isolation to draw inferences. The Apex Court held, '10. xx xx In our view it will not be a sound rule of appreciation of evidence to pick up an answer from the cross-examination of a witness and draw inference taking it in isolation. The Court must see as to how consistent the testimony of the witness is and as to how that answer fits in with the rest of the evidence and probabilities of the case. From the sentence stated in the cross-examination where the question is also not recorded, we are unable to infer inability of the Respondents in performing their part of the contract after filing of the suit nor can we say that the findings recorded by the trial court, first appellate court and the High 12 R.C.R No.194 of 2019 Court that the Plaintiffs have been ready and willing to perform their part of the contract have been erroneously arrived at.' 17. The petitioner is a tenant in one of the rooms in the building in question. He certainly would know in and out details of the said building where he started to occupy a room in 2001. When he deposed in court that all rooms are occupied by the tenants and the room which was earlier suggested to have been vacant was in possession of one Mr.Suresh Babu, the same cannot be brushed aside by saying that it is a stray sentence. When the said version of RW1 is considered in the light of the oral testimony of PW1, it can only be said that no vacant rooms are available with the respondent. 18. In **Panoli Alikutty v. Suresh Babu [2019(1) KLT 110],** a Full Bench of this court held that the scheme of the Act does not indicate that the legislature intended the parties to a proceeding for eviction under the Act to prove the vacancy or occupancy of a building by producing certified extracts of the property tax or the building tax assessment books of the local authority. The said certified extracts can at best be a piece of evidence and the occupancy of the building needs to be 13 R.C.R No.194 of 2019 ## established by the parties by other corroborative evidence. 19. In view of the said legal principle, Ext.B1 on its own cannot prove vacancy of room No.152A as argued by the learned Counsel for the petitioner. There is absolutely no other reliable evidence either oral or documentary to show that any room belonging to the respondent has been lying vacant. 20. Further contention of the learned counsel for the petitioner is that the tenancy created as per Exts. A13 to A19 would show that even after arising the projected need, the respondent let out several rooms to others. It may be noted that in Ext.A1, the sale deed as per which the respondent purchased the building in question on 22.12.2010, it has been recited that all the rooms were occupied by tenants. Obviously, one among such tenants is the petitioner and he has no case that any of those tenants was evicted. On a perusal of Exts.A13, A16, and A18, it can be seen that the subject matter of the said rent agreements are sheds put up using sheets which indicates that those were the shed constructed behind the building. Therefore from Exts. A13 to 18 it cannot be said that any room suitable for the projected purpose of the respondent was let out by the respondent. Taking 14 R.C.R No.194 of 2019 all such aspects into account, we are of the view that the respondent proved that the need urged by him is bonafide and the findings of the courts below in that regard do not suffer from any illegality, irregularity or impropriety. The same is the position in respect of the plea under the 1st proviso to Section 11(3) as well. 21. Coming to the 2nd proviso to section 11(3) the evidence let in by the petitioner is scanty. The petitioner is conducting a business in artistic work in the petition schedule shop room. He has 3 employees. He stated that he has registration with the Labour department. Despite existence of such documents, nothing has been produced before court in order to show the volume of his business and the income he has been deriving from that business. Regarding non-availability of alternative buildings in the locality no worthwhile evidence is brought on record. 22. In **Francis** v. **Sreedevi Varassiar [2003 (2) KLT 230 (FB)]** , a Full Bench of this Court held that the burden of proving both the criteria of the second proviso lies with the tenant. In **Thanuja Sunderdas** v. **Sisirkumar Raj [2008 (4) KLT 248]** , this Court again considered this aspect and declared that the burden absolutely lies on the tenant to establish the requirements 15 R.C.R No.194 of 2019 for the protection contained in the second proviso to Section 11(3) of the Act. In **Poolakandi Kumaran** v. **Kulangara Veetil Mathu [2009(1) KLT 607]** this Court reiterated that the two ingredients of the second proviso are in the conjunctive, and in order that a tenant to get the benefit of the proviso, he will have to satisfy both the ingredients. In view of the aforesaid legal principle, the petitioner has the absolute burden to prove both the ingredients of the 2nd proviso to Section 11(3) of the Act, but he failed. 23. 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, 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 sub- 16 R.C.R No.194 of 2019 section (1) shall be at its discretion. 24. 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 the 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 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. 25. In **Hindustan Petroleum Corporation Limited v.** 17 R.C.R No.194 of 2019 **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. ## 26. 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** 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 18 ## R.C.R No.194 of 2019 interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 27. 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. 28. 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 out another room and making necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant four months’ time. 29. 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 19 R.C.R No.194 of 2019 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, 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 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