Premarajan v. Abdulkhader

## **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 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** **RCREV. NO. 215 OF 2019** **AGAINST THE JUDGMENT IN R.C.A NO.171 OF 2017 DATED 13.02.2019 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY(III ADDL.DISTRICT JUDGE), KOZHIKODE WHICH WAS AGAINST THE ORDER IN R.C.P.NO.12 OF 2015 DATED 13.09.2017 ON THE FILE OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-II), KOZHIKODE** ## **REVISION PETITIONER:** **PREMARAJAN AGED 61 YEARS S/O.MUNNASSERI RADHAKRISHNAN NAIR, RESIDING AT ADINILATH, P.O.ERAVANNUR, NARIKUNI, KOZHIKODE-673 585. BY ADVS. V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENTS:** **ABDULKHADER AGED 61 YEARS S/O.AHAMMEDKOYA HAJI, RESIDING AT KAYIPURATH CHALIL HOUSE, PARANNUR AMSOM DESOM, P.O.PARANNUR, KOZHIKODE-673 585.** **BY ADV. SRI.M.MUHAMMED SHAFI** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ## **RCR NO.215 OF 2019** ## **O R D E R** ## Ajithkumar, J Tenant is the revision petitioner. The respondent-landlord filed R.C.P No.12 of 2015 before the Rent Control Court (MunsiffII), Kozhikode seeking eviction of the petitioner under Sections 11(3) of the Kerala Buildings (Lease and Rent Control)Act, 1965. That petition was allowed, ordering eviction as per order dated 13.09.2017. The petitioner preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (III Additional District Court), Kozhikode. The appeal was dismissed as per its judgment dated 13.02.2019. That occasioned in filing this revision petition under Section 20 of the Act. 2. On 07.06.2019, this Court directed to issue notice to the Caveator. Execution of the order of eviction was stayed as per order dated 21.06.2019 for a period of three weeks. That order has been extended from time to time. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. Respondent initiated the proceedings for eviction contending that his son, Favas Ahammad, who is deaf 3 ## **RCR NO.215 OF 2019** and dumb has wife and a child to be looked after and as he remains unemployed, he wants the petition schedule shop room to start a stationery business. The respondent categorically contended that his son is competent to conduct a business and as there is no possibility for him to get any employment, it has become inevitable for him to start a business to eke out his livelihood. It was also contended that no room which can be used for that purpose is available with the respondent and in such circumstances, eviction of the petitioner was inevitable. 5. Petitioner resisted the plea for eviction contending that the need urged was not bonafide and that he is entitled to get protection of the second proviso to Section 11(3) of the Act. The main plank of contention of the petitioner in relation to the need is that the respondent in association with his son, has been conducting a business in photostat, and providing of internet and computer services, etc. in two rooms in the upstair portion of the same building which are in the ownership of the respondent. 6. PW1, the landlord gave evidence in court as PW1. He stated that the only room that can be made available for the need of his son is the petition schedule shop room. This being in the 4 ## **RCR NO.215 OF 2019** ground floor, it is convenient to conduct a stationery business. He conceded that two rooms in the upstairs of the building belong to him, but he denied having conducted the business in the said rooms by him as alleged. It is his definite version that the said room can be used for purposes like godown and not to conduct a business, particularly a stationery shop. 7. The petitioner deposed as RW1 in terms of his contentions. Although he asserted that the said two rooms are now used to conduct a business in photostat, and providing internet and computer services, etc. no independent, either oral or documentary evidence in that regard has been brought on record. If such a business is really being held, there is no difficulty in getting documents to prove that fact. In the absence of any such independent evidence, oral testimony of RW1 cannot be acted upon, when PW1 categorically deposed denying conduct of any such business. Both the courts below after a proper appreciation of evidence held that the said two upstairs rooms are not convenient to conduct a stationery business. No acceptable infirmity to that finding has been pointed out by the learned counsel appearing for 5 ## **RCR NO.215 OF 2019** the petitioner enabling us to interfere with that finding. 8. 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 6 ## **RCR NO.215 OF 2019** 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. 9. 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 7 ## **RCR NO.215 OF 2019** 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. 10. 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 8 ## **RCR NO.215 OF 2019** course, subject to the first and second provisos to Section 11(3) of the Act. 11. When the evidence on record which has been deliberated upon by the courts below in detail, is considered in the light of the proposition of law laid down in the aforesaid decisions, we do not find any reason to hold that the findings of the courts below that the need urged by the respondent in sincere, honest and prove to be bonafide. 12. The petitioner set forth contentions that the respondent has other suitable rooms which can be used for the projected need and that he is entitled to get the benefit of second proviso to Section 11 (3) of the Act. We have pointed out that the two rooms in the upstairs of the building are not suitable for the purpose intended by the respondent. There are a few other rooms also in the same building. But there is nothing to show that such rooms belong to the respondent. In the said circumstances, we are of the view that this is not a case where first proviso to Section 11(3) of the Act can have application. 13. The petitioner is conducting a hotel in the petition schedule shop room. The case of the respondent is that the 9 ## **RCR NO.215 OF 2019** business is only a name sake one and the claim of the petitioner that he can rely for his livelihood on the income derived from the business in the petition schedule shop room is incorrect. 14. 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 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 second proviso to Section 11(3) of the Act, but he failed. 15. The evidence let in by the petitioner, however, is totally insufficient to prove either of the parameters in the second proviso 10 ## **RCR NO.215 OF 2019** to Section 11(3). Exts.B1 to B5 produced by the petitioner would show that he is conducting a hotel, but that is not at all proof for proving his income. Regarding availability of other rooms in the locality to be availed for shifting his business, no evidence is attempted to be brought on record. In the said circumstances, we hold that the plea of the petitioner based on the second proviso to Section 11(3) cannot succeed. The findings of the courts below in this regard do not suffer from any vice. 16. 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 11 ## **RCR NO.215 OF 2019** proceedings before the High Court or District Court under subsection (1) shall be at its discretion. 17. 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 12 ## **RCR NO.215 OF 2019** legality, regularity and propriety of the order impugned before it. 18. 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. ## 19. 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 13 ## **RCR NO.215 OF 2019** 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. 20. The findings of the courts below on the questions relating to bonafide need, provisos to Section 11(3) of the Act are concurrent. No manifest error to such findings is brought out. We accordingly hold that said findings are legal, regular and proper which are not liable to be interfered with by this Court in exercise of the powers under Section 20 of the Act. Therefore this revision petition fails. We, accordingly, dismiss it. 21. 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. 22. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant 14 ## **RCR NO.215 OF 2019** 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 15 ## **RCR NO.215 OF 2019** 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 respondenttenant 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** PV