P.V. Raveendran v. C.V. Ushakumari

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 RCREV. NO. 135 OF 2022 AGAINST THE ORDER/JUDGMENTRCP 30/2014 OF MUNSIF COURT, KUTHUPARAMBA RCA 26/2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THALASSERY ## REVISION PETITIONER/S: P.V.RAVEENDRAN AGED 55 YEARS SON OF GOPALAN, KEEZHUR AMSOM, DESOM, PO. KEEZHUR, IRITTY TALUK, KANNUR, PIN - 670703 BY ADVS. R.PARTHASARATHY SEEMA ## RESPONDENT/S: C.V.USHAKUMARI AGED 54 YEARS D/O.SANKARAN NAMBIAR, AVINASH HOUSE, KEEZHUR AMSOM, DESOM, PO.KEEZHUR, KANNUR, PIN - 670703 BY ADVS. R.SURENDRAN(k/000220/1987) (CAVEATOR) R.SURENDRAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.Rev.No. 135 of 2022 ## **:-2-:** **==> picture [198 x 10] intentionally omitted <==** Shoba Annamma Eapen, J. Concurrent orders of eviction of the revision petitioner/tenant under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short, 'the Act'), passed by the Rent Control Court, Kuthuparamba and the Rent Control Appellate Authority/ Addl.District Judge-IV, Thalassery are challenged in this Revision Petition. 2. The rent control petition was filed by the respondent-landlady claiming eviction under Section 11(2) (b) and 11(3) of the Act. The need urged by the landlady was to start a business in the petition schedule building by her husband, who retired from service. That claim was resisted by the tenant. The Rent Control Court, after deliberating upon the evidence adduced and on hearing both sides, found that the need urged by the landlady was bona fide and that the tenant is liable to be evicted. The tenant paid the entire rent arrears and hence no order was passed under Section 11(2)(b) of the Act. The challenge made by the petitioner to the order of eviction by filing an appeal before the Appellate Authority was not successful. R.C.Rev.No. 135 of 2022 ## **:-3-:** That occasioned in filing this revision. 3. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondent. 4. According to the learned counsel for the revision petitioner, both the authorities erred in granting eviction. The learned counsel appearing for the revision petitioner raised contentions that the need urged by the landlady lacks bona fides since the details of the proposed business are not stated in the petition and the husband of the landlady is not in a position to do any hard work since he had undergone a bypass surgery and also that the landlady had earlier filed rent control petition alleging bona fide need, which was dismissed. It was further contended that the nonexamination of the landlady to prove the bona fide need is fatal. It is submitted that the revision petitioner is entitled to the protection under the provisos to Section 11(3) of the Act. 5. Per Contra, the learned counsel appearing for the respondent/landlady, argued that the omission to specify the nature of the business in the petition is not the ## R.C.Rev.No. 135 of 2022 ## **:-4-:** requirement of law and in Ext.A1 lawyer notice, it was specifically stated that the husband of the landlady intends to start stationery shop and during cross- examination, PW1 has clearly deposed that he intends to start stationery business. It was further submitted that the earlier rent control petition was filed in the year 1999 that she wanted to start a fancy shop and now there is change of circumstances since the husband of the landlady retired from service and is without any job. The landlady has filed the present petition for eviction in the year 2014, after 15 years. It was further contended that the need put forth was for the husband of the landlady to start a business and in order to prove the bona fides, the husband was examined as PW1. Hence, the non-examination of the landlady is not at all necessary. Further, it was contended that in order to claim the benefit of protection under the provisos to Section 11(3) of the Act, the burden is on the tenant which he failed to prove. Accordingly, the learned counsel for the respondent maintains that the eviction ordered by the Rent Control Court and concurred by the Appellate Authority is supported by sufficient evidence and in consonance with the ## R.C.Rev.No. 135 of 2022 ## **:-5-:** settled legal principles. 6. The learned counsel for the revision petitioner submits that the non-disclosure of the nature of business proposed to be conducted in the rent control petition was deliberate and it was only intended to make a suitable nature of business during the trial to surprise the appellant. 7. On a perusal of Ext.A1 lawyer notice, it is seen that the landlady had specifically mentioned that the eviction sought is for her husband to start a stationery business. Hence the tenant cannot contend that he was taken by surprise at the time of trial. 8. The need put forth was known to the tenant at the time of receipt of lawyer notice. Further, during cross examination, PW1 has deposed that he is intending to start a business. In Raj Kumar Khaitan and others v. Bibi Zubaida Khatun and another (AIR 1995 SC 576) and in Narayani v. District Judge (1991 KHC 173), it was held that, precise nature of the business proposed to be conducted is not required to be stated in the pleading and that is a matter for evidence. Hence, we hold that question of lack of pleading does not arise. ## R.C.Rev.No. 135 of 2022 ## **:-6-:** 9. The further contention of the learned counsel for the revision petitioner that the need projected by the landlady was not genuine since the landlady was not examined and the husband of the landlady is doing real estate business and he is unable to do any hard work and business since he has undergone a bypass surgery. The need projected was for the husband of the landlady to conduct business and he was examined as PW1. Merely because the husband of the landlady had undergone surgery or that he is doing real estate business is not a bar to conduct another business or that PW1 is incompetent or unable to do other business. 10. In Adil Jamshed Frenchman (Dead) by LRs. v. Sardar Dastur Schools Trust and Others [(2005) 2 SCC 476], the Apex Court reiterated the principle laid down in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] that 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 R.C.Rev.No. 135 of 2022 ## **:-7-:** 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. 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 material to the contra. 12. The further contention of the learned counsel for the petitioner is that the landlady had earlier filed rent control petition in the year 1999 for eviction of the tenant and hence the landlady is barred from filing the present rent R.C.Rev.No. 135 of 2022 ## **:-8-:** control petition for eviction. The earlier rent control petition was filed in the year 1999 and that the need projected by the landlady was that she wanted to start a fancy shop. The said petition was withdrawn by the landlady on the basis of a settlement arrived between the parties. Now there is a change of circumstances. The bona fide need is for the husband of the landlady to start a stationery shop since he had retired from service. This Court in Moideenkutty.K v. Maniparambil Viswanadhan Nair (2022 (7) KHC 93) which was rendered by the very same bench that in rent control matters, there is no res judicata when circumstances have changed and when the landlord has shown that there is a change of circumstance, it can be held that the issues are not substantially the same in the two petitions. In the present case, the landlady has specifically averred that her husband retired from service and needs the petition schedule building for him to start a stationery shop. In the earlier rent control petition in the year 1999, the need was for the landlady to start a fancy shop. Hence the contention of the tenant that the petition is hit by res judicata also fails. 13. On the basis of the materials on record, the R.C.Rev.No. 135 of 2022 ## **:-9-:** 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 landlady will certainly be entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second proviso to Section 11(3) of the Act. The appellate court found that the tenant has succeeded in proving the first part of the second proviso but failed to prove the second part of the second proviso and did not adduce evidence to prove that there was no suitable room available in the locality for him to carry on business. In the said circumstances, we hold that the contention of the learned counsel for the petitioners with reference to the second part of the 2[nd] proviso to Section 11(3) of the Act is untenable. 14. 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 v. Kallyani Sulochana [(1993) 1 SCC 499], the Apex Court reiterated that even the wider language of Section 20 of the ## R.C.Rev.No. 135 of 2022 ## **:-10-:** Act cannot enable the High Court to act as a first or a second court of appeal. It was further held 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. 15. In Thankamony Amma and Ors. 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 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 reappreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 16. In the light of the said legal principles, we are of the definite 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 ## R.C.Rev.No. 135 of 2022 ## **:-11-:** Petition fails. We, accordingly, dismiss it. 17. At the time of pronouncement of this Order, the learned counsel for the petitioner has made a request to afford six month's time for vacating the premises. 18. 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 room to the petitioner-landlady within six months from the date of this order; - (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 ## R.C.Rev.No. 135 of 2022 ## **:-12-:** one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule room will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. Sd/- A.MUHAMED MUSTAQUE JUDGE sd/- SHOBA ANNAMMA EAPEN JUDGE MBS/