Ramesh v. SHERAFFUNISA (R.C.Rev.No.36 of 2020)

## **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 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** **R.C.REV. NO. 36 OF 2020** **AGAINST THE JUDGMENT DATED 16.10.2019 IN R.C.A.NO.8 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THIRUVANANTHAPURAM AND THE ORDER DATED 30.01.2019 IN R.C.P.NO.34 OF 2016 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), THIRUVANANTHAPURAM** ## **REVISION PETITIONER:** ## **RAMESH,** **AGED 62 YEARS, S/O.SUBBAYYAN, T.C.38/848, GANDHI HOTEL LANE, CHENTHITTA, MARAKKADA ROAD, CHALAI P.O., THIRUVANANTHAPURAM - 695 036.** **BY ADV RAJESH P.NAIR** ## **RESPONDENT:** ## **SHERAFFUNISA,** **AGED 72, T.C.21/1859(6), KARAMANA P.O., THIRUVANANTHAPURAM - 695 002.** **BY ADV SRI.R.V.SREEJITH** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.36 of 2020 ## **O R D E R** ## Ajithkumar, J. The respondent in R.C.P.No.34 of 2016 on the file of the Rent Control Court (Additional Munsiff), Thiruvananthapuram is the petitioner in this revision petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. 2. In a row building belonging to the respondentlandlady there are five shop rooms. There are tenants in each of the said rooms. The landlady filed five rent control petitions, including present one, for eviction of the respective tenants under Section 11(3) of the Act. The need urged is that the daughter of the landlady, Smt.Nabila, who is conducting a hotel in a tenanted building, is in need of all the five rooms for shifting her hotel. 3. The respective tenants resisted the eviction petitions on common grounds. They contended that the need urged was not bonafide, the landlady has other building which can be used for the purpose, the pleadings are insufficient to 3 ## R.C.Rev.No.36 of 2020 make out a ground under Section 11(3) of the Act and the petitioners are entitled to get the benefit of the second proviso to Section 11(3) of the Act. 4. The Rent Control Court tried all the five rent control petitions jointly and held that the need urged by the landlady was bonafide and the petitions were allowed. The petitioner preferred an appeal before the Rent Control Appellate Authority (District Judge), Thiruvananthapuram under Section 18(1)(b) of the Act. But the appeal, R.C.A.No.8 of 2019 was dismissed. Feeling aggrieved thereof, the petitioner filed this revision petition. 5. On 13.02.2020, notice was ordered. Execution of the order of eviction was stayed, initially for one month. The order has been extended from time to time. 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 7. The submissions of the learned counsel appearing for the petitioner are essentially with respect to the bonafides 4 R.C.Rev.No.36 of 2020 of the need urged by the respondent and plea under the second proviso to Section 11(3) of the Act. That the building in question is a very old one consisting of a row of rooms and it is not amenable to any modification. Even if converted, it would not suit to accommodate a hotel. The landlady or Smt.Nabila did not give evidence. Oral testimony of PW1, who is the power of attorney of the landlady, is totally insufficient to prove the need projected. The respondent is a person having several other buildings and to any one of which Smt.Nabila can conveniently shift her business. For those reasons the need can only be said not to be bonafide. 8. The learned counsel appearing for the respondent, on the other hand, would contend that both the courts below considered the question in detail and correctly held that the need was bonafide. The said findings of the courts below are well justified in law and supported by sufficient reasons. The learned counsel accordingly would contend that the said findings are not liable to be interfered with. 9. Section 11 of the Act deals with eviction of tenants. 5 R.C.Rev.No.36 of 2020 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 6 ## R.C.Rev.No.36 of 2020 suitable building available in the locality for such person to carry on such 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 7 ## R.C.Rev.No.36 of 2020 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 materials to the contra. 12. PW1 is the husband of the respondent’s daughter. He deposed that he along with his wife, as a partnership firm, is conducting a hotel in a rented premises. It is his further version that owing to the burden of making payment of rent, they are unable to do the business profitably and that is the immediate necessity to shift the hotel to their own building. When the landlady wants her dependent daughter to shift her hotel business from a rented premises to own building in the above situation, it cannot be said that it is without bonafides. The reasons, such as old age of the building, conversion/ 8 R.C.Rev.No.36 of 2020 modification required to the building, space constraints, etc. are all the concerns of the landlady to which she and her dependent have to adjust with. If she, with all such constraints, wants to make use of the building for own use, the tenant cannot have any say in it. Both the courts below considered these aspects after due marshaling of entire evidence and reached the conclusion that the need is bonafide. 13. Non-examination of the landlady or her daughter is highlighted to contend that need urged does not really exist and that is the reason why neither of them was examined. The Apex Court in **Gulraj Singh Grewal v. Dr. Harbans Singh [(1993) 2 SCC 68]** while dealing with a petition for eviction on the grounds, including personal need under Section 13(3)(a)(i)(a) of East Punjab Urban Rent Restriction Act, 1949, examined the question whether non-examination of the son as such would be fatal to the petition for eviction. Apex Court held as follows: 'Respondent 1, who is the father of respondent 2, has 9 R.C.Rev.No.36 of 2020 supported and proved the need of respondent 2, who also is a landlord. The fact that for want of suitable accommodation in the city of Ludhiana, respondent 2 is at present carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlord’s need. In these circumstances, the non- examination of respondent 2 also, when respondent 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened.' 14. This Court in **Devayani v. Pulickaparambil** **Hamsa Haji [1997 (1) KLJ 230]** held that merely because the landlord's son was not examined, it cannot be said that bonafide requirement cannot be proved. Whether bonafide need is established on the basis of the evidence is a question depending upon the facts of each case. This view was reiterated in **Abdul Asees v. Sahadevan and another [2019 (2) KHC 936].** So far as this case is concerned, we are convinced that non-examination of the landlady or her daughter is not fatal since evidence of PW1 is sufficient to prove the need urged by the respondent. 10 R.C.Rev.No.36 of 2020 15. The learned counsel appearing for the petitioner did not stress much on the first proviso to Section 11(3) of the Act. It has come out in evidence that the landlady has another building at a different place, but in the same city. The said building is essentially a lodge and not conveniently to house a hotel. In the light of the said evidence, the courts below found that this is not a case where the first proviso can have application. We find no reason to interfere with the said finding. 16. 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 11 R.C.Rev.No.36 of 2020 insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 17. The petitioner did not produce any evidence with respect to the income he is drawing from the business being conducted by him. So it cannot be found that the sole income on which he can depend for his livelihood is the income from his business in the petition schedule shop room. 18. It has come out in evidence that several vacant rooms are available in the locality. A two-storied building and another building, named Siji's Plaza, both having several rooms, are stated to be available vacant in the locality. PW1 deposed in court pointing out the availability of those rooms. CPWs 1 or 2 did not state that they have made any serious enquiry about availability of vacant rooms in the nearby area. The petitioner did not adduce evidence in this regard as well. In the said circumstances, the inevitable conclusion is that the petitioner failed to prove both limbs of second proviso to Section 11(3) of the Act. The findings of the courts below on 12 R.C.Rev.No.36 of 2020 this score also are legally and factually correct. 19. 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 subsection (1) shall be at its discretion. 20. 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 13 R.C.Rev.No.36 of 2020 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 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. 21. In **T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu 14 R.C.Rev.No.36 of 2020 Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 22. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, 15 R.C.Rev.No.36 of 2020 however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to reappreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional - court will not be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 23. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench 16 R.C.Rev.No.36 of 2020 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. 24. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said 17 R.C.Rev.No.36 of 2020 - to be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 25. In view of what are stated above, we are of the view that the order of eviction passed by the Rent Control Court in R.C.P.No.34 of 2016, which stand confirmed by the Appellate Authority in the appeal, R.C.A.No.8 of 2019, is not liable to be interfered with by invoking the jurisdiction of this Court under Section 20 of the Act. The revision petition is therefore dismissed. 26. The learned counsel appearing for the petitioner submitted that a reasonable time is required for the petitioner to shift his business from the petition schedule shop room for which till the end of the year may be granted. 27. Having heard the learned counsel appearing for both the petitioner as well as the respondent, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the 18 ## R.C.Rev.No.36 of 2020 following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court 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 that he will 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 respondents-tenants in the Rent Control Petitions 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 19 R.C.Rev.No.36 of 2020 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** dkr