Punathil Moidu v. Mariyakutty 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** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **R.C.REV.NO. 56 OF 2019** **AGAINST THE JUDGMENT DATED 10.10.2018 IN R.C.A.NO.165 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), KOZHIKODE AND THE ORDER DATED 31.07.2017 IN R.C.P.NO.64 OF 2015 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF-II), KOZHIKODE** ## **REVISION PETITIONER:** ## **PUNATHIL MOIDU** **AGED 46 YEARS, S/O.PUNATHIL IBRAYI, RESIDING AT THOTTAPPALLI AMSOM DESOM, VATAKARA TALUK, POST KOTTAPPALLY, KOZHIKODE-673101.** **BY ADVS. V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENTS:** **1 MARIYAKUTTY, AGED 70 YEARS, W/O.CHENNIKKATTU MAMMEDKOYA, NALLALAM AMSOM DESOM OF KOZHIKODE TALUK, POST NALLALAM, KOZHIKODE-673027.** - **2 ABDURAHIMAN** **AGED 54 YEARS, S/O.CHENNIKKATTU MAMMEDKOYA, NALLALAM AMSOM DESOM OF KOZHIKODE TALUK, POST NALLALAM, KOZHIKODE-673027.** 2 R.C.Rev.No.56 of 2019 - **3 ASHRAF,** **AGED 52 YEARS, S/O.CHENNIKKATTU MAMMEDKOYA, NALLALAM AMSOM DESOM OF KOZHIKODE TALUK, POST NALLALAM, KOZHIKODE-673027.** ## **4 SHAMSHAD** **AGED 49 YEARS, D/O.CHENNIKKATTU MAMMEDKOYA, NALLALAM AMSOM DESOM OF KOZHIKODE TALUK, POST NALLALAM, KOZHIKODE-673027.** - **5 MUMTHAZ** **AGED 48 YEARS, D/O.CHENNIKKATTU MAMMEDKOYA, NALLALAM AMSOM DESOM OF KOZHIKODE TALUK, POST NALLALAM, KOZHIKODE-673027.** - **6 SHAHINA** **AGED 46 YEARS, D/O.CHENNIKKATTU MAMMEDKOYA, NALLALAM AMSOM DESOM OF KOZHIKODE TALUK, POST NALLALAM, KOZHIKODE-673027.** - **7* NAJEEB** - **AGED 61 YEARS,V/532, HOTEL NEW STAR, AREEKKAD, NALLALAM AMSOM DESOM OF KOZHIKODE, POST NALLALAM,KOZHIKODE.** ***R7 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 05/07/2019.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL** **HEARING ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.56 of 2019 ## **O R D E R** ## Ajithkumar, J. The petitioner has filed this revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the legality, regularity and propriety of the judgment dated 10.10.2018 of the Rent Control Appellate Authority (II Additional District Judge), Kozhikode in R.C.A.No.165 of 2017. As per the said judgment, the Appellate Authority reversed the order of the Rent Control Court (Additional Munsiff-II), Kozhikode, dated 31.07.2017 in R.C.P.No.64 of 2015. The Rent Control Court had dismissed the petition for eviction filed under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act. But the Appellate Authority reversed the order with respect to Section 11(3) of the Act. 2. On 12.02.2019, this Revision was admitted to file and notice was ordered to be served on the respondents. Execution of the order of eviction was stayed by the order dated 12.02.2019 in I.A.No.1 of 2019 for a period of one month. The order has been extended from time to time and is still in force. 4 R.C.Rev.No.56 of 2019 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 4. The need for which eviction under Section 11(3) of the Act sought is that the 2[nd] respondent, one among the landlords, wants to start a hotel in the petition schedule shop room. The petitioner resisted the said claim by contending that the 2[nd] respondent is a person employed abroad for quite a long period and now employed in M/s PVS Ford. It was further contended that the petitioner has been conducting a hotel accommodating in the petition schedule shop room and the adjoining premises as a single unit. The well, waste tank, staff room, etc., which are essential for the functioning of the hotel are situated in the said adjoining land, which belongs to one Smt.Sainaba. The income from the said hotel is the sole source of livelihood of the petitioner. There is no other building available in the locality to shift the business. Thus, the benefit of the second proviso to Section 11(3) of the Act has also been claimed. 5 R.C.Rev.No.56 of 2019 5. The evidence in the case consists of oral testimonies of PW1 and RW1, and Exts.A1 to A4 and B1 to B12. The Rent Control Court after considering the said evidence took the view that PW1, the 2[nd] respondent, did not know about the requirements of a hotel, and therefore, the need urged by him could not be said to be bona fide. The Appellate Authority considered the evidence on record in detail in order to decide whether the said finding was justifiable or not. After a detailed discussion on the evidence, the Appellate Authority found that the evidence let in by the respondents was sufficient to prove that the need urged by them was bona fide. Further, holding that the respondents have no other building of their own, which can be used for the purpose and that the petitioner did not adduce evidence to prove the ingredients of the second proviso to Section 11(3) of the Act, ordered eviction of the petitioner under Section 11(3) of the Act. 6. The learned counsel appearing for the petitioner would contend that the respondents categorically pleaded that 6 R.C.Rev.No.56 of 2019 PW1 had enough experience in conducting the hotel, but in the evidence he made a total go-by by admitting that he did not have even basic know-how of hotel business. In view of that, the learned counsel for the petitioner submitted that although prior experience may not be a requirement for a landlord to claim eviction of his tenant, when it is pleaded that the landlord has enough experience and the evidence says otherwise, the need urged by him becomes suspicious. It is also contended that PW1 has other employment, but that fact has been suppressed. 7. The learned counsel appearing for the respondents, on the other hand, contended that if the oral testimony of PW1 is appreciated in its proper perspective, there is no reason to dis-own his honestly and sincerely in advancing the plea that he wanted to start a hotel. It is submitted that prior experience for the landlord is not a precondition for claiming eviction of a tenant and if the projected need is reasonable and cannot be said to be mala fide, the same has to be accepted. 7 R.C.Rev.No.56 of 2019 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 8 R.C.Rev.No.56 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** 9 ## R.C.Rev.No.56 of 2019 **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. 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 10 R.C.Rev.No.56 of 2019 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. 11. PW1 deposed the reasons why he decided to start a hotel business. The petitioner is conducting a hotel in the petition schedule premises. Of course, he is making use of the neighbouring property also for the said business. That is for the convenient conduct of the business. That can never be a reason to reject the plea for eviction. It is also not possible to say that the landlord cannot conduct the hotel unless the neighbouring property is also available. It is for the landlord to decide in what manner he has to devise his business. If he is of the view that he can conduct the proposed business in his own room, the court or the tenant need not doubt it by saying that the convenience in the premise is less. If the proposed business is of such a nature that the same cannot be conducted in the tenanted premises on account of some 11 R.C.Rev.No.56 of 2019 statutory or other restrictions, the position is different. No statutory requirements with respect to the area to conduct a hotel is brought to our notice. Therefore, the need urged by the respondents that PW1 wants to start a hotel in the petition schedule shop room, cannot be said to be an oblique or mala fide one. The finding entered into by the Appellate Authority in this respect in favour of the respondents cannot be said to be incorrect or perverse, in the light of the law laid down in the decisions referred to above. Therefore, we do not propose to interfere with the said finding in exercise of the jurisdiction of this Court under Section 20 of the Act. 12. A plea that the respondents have other buildings of their own has been raised, but no evidence in that regard was let in. Insofar as the plea under the second proviso to Section 11(3) of the Act is concerned, the petitioner gave oral evidence as RW1 before the Court. He deposed that the income from the hotel being conducted in the petition schedule shop room is the sole source of his livelihood. The Appellate Authority took the view that the petitioner did not 12 R.C.Rev.No.56 of 2019 succeed in proving the parameters of the second proviso to Section 11(3) of the Act. Suffice it to say that the oral testimony of RW1 unsupported by any other evidence is insufficient to prove that his only source of income is the business in the petition schedule shop room and also that no other suitable building is available in the locality to shift his business. Hence, we find no reason to interfere with the finding of the Appellate Authority that the petitioner is not entitled to the benefit of the second proviso to Section 11(3) of the Act as well. 13. In view of what are stated above, we hold that the findings of the Appellate Authority, resulting in ordering eviction of the petitioner under Section 11(3) of the Act require no interference. The revision therefore fails and hence, the same is dismissed. 14. The learned counsel for the petitioner has made a request to afford nine months' time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. The 13 ## R.C.Rev.No.56 of 2019 learned counsel for the respondents is agreeable to grant six months’ time. 15. 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 building 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 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 14 ## R.C.Rev.No.56 of 2019 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