RCREV Nos. 451/2019, 453/2019, 450/2019 and 452/2019, Kerala High Court

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA,** **1944** **RCREV. NO.451 OF 2019** **AGAINST THE ORDER IN RCP NO.22/2014 OF MUNSIFF COURT,** **THALASSERY** **R.C.A.NO.82/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS** **COURT - III, THALASSERY** ## **REVISION PETITIONERS/S:** - 1 **N.K.RAIHANA, AGED 58 YEARS, W/O.MEER MUHAMMED, RAITHAN, S.S.ROAD, P.O.CHIRAKKARA, THALASSERY-670104.** - 2 **N.K.MUHAMMAD SAJID, AGED 39 YEARS, S/O.LATE MEER MUHAMMED, RAITHAN, S.S.ROAD, P.O.CHIRAKKARA, THALASSERY-670104.** - 3 **N.K.MUHAMMED SADIQUE, AGED 39 YEARS, S/O.LATE MEER MUHAMMED, RAITHAN, S.S.ROAD, P.O.CHIRAKKARA, THALASSERY-670104.** 4 **N.K.MUHAMMED SHAHID, AGED 39 YEARS, S/O.LATE MEER MUHAMMED, RAITHAN, S.S.RAOD, P.O.CHIRAKKARA, THALASSERY-670104. BY ADVS. B.KRISHNAN SRI.R.PARTHASARATHY** **RESPONDENT/S:** **PATHALAYINTAVIDA USMAN, AGED 56 YEARS, S/O.ABDULLA, ONDATH HOUSE, KAIVELIKKAL, P.O.PUTHOOR, THALASSERY TALUK, KANNUR DISTRICT-670692.** **BY ADV SRI.K.P.HAREENDRAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH RCRev.450/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCR No.451/2019 and conn.cases 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA,** ## **1944** **RCREV. NO.453 OF 2019** **AGAINST THE ORDER IN RCP NO.13/2014 OF MUNSIFF COURT,** ## **THALASSERY** **R.C.A.NO.83/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS** ## **COURT - III, THALASSERY** ## **REVISION PETITIONERS/S:** - 1 **A.FATHIMA, AGED 53 YEARS, D/O.LATE ABDULLA, NUSRATH MANZIL, CHOKLI, P.O.OLAVILAM, THALASSERY-673313.** - 2 **AMINA, AGED 51 YEARS, D/O.LATE ABDULLA, NUSRATH MANZIL, CHOKLI., P.O.OLAVILAM, THALASSERY-673313.** - 3 **SALAM, AGED 49 YEARS, S/O.LATE ABDULLA, NUSRATH MANZIL, CHOKLI., P.O.OLAVILAM, THALASSERY-673313.** - 4 **VAHID, AGED 47 YEARS, S/O.LATE ABDULLA, NUSRATH MANZIL, CHOKLI., P.O. OLAVILAM, THALASSERY-673313.** - 5 **AFSAT, AGED 45 YEARS, D/O.LATE ABDULLA, NUSRATH MANZIL, CHOKLI., P.O.OLAVILAM, THALASSERY-673313.** - 6 **NOORAJAHAN, AGED 43 YEARS, D/O.LATE ABDULLA, NUSRATH MANZIL, CHOKLI., P.O. OLAVILAM, THALASSERY-673313.** - 7 **NOORDEEN, AGED 41 YEARS, S/O.LATE ABDULLA,,NUSRATH MANZIL, CHOKLI., P.O.OLAVILAM, THALASSERY-673313.** RCR No.451/2019 and conn.cases 3 8 **NISHAD, AGED 40 YEARS, S/O.LATE ABDULLA, NUSRATH MANZIL,CHOKLI., P.O. OLAVILAM, THALASSERY-673313.** **BY ADVS. B.KRISHNAN R.PARTHASARATHY** ## **RESPONDENT/S:** **PATHALAYINTAVIDA USMAN, AGED 56 YEARS, S/O.ABDULLA, ONDATH HOUSE, KAIVELIKKAL, P.O.PUTHOOR, THALASSERY TALUK, KANNUR DISTRICT-670692.** **BY ADV SRI.K.P.HAREENDRAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH RCRev..451/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCR No.451/2019 and conn.cases 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA,** **1944** **RCREV.NO.450 OF 2019** **AGAINST THE ORDER IN R.C.P.NO.12/2014 OF MUNSIFF COURT,** ## **THALASSERY** **R.C.A.NO.81/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS** **COURT - III, THALASSERY** ## **REVISION PETITIONER/S:** **P.P.MUKUNDAN, AGED 56 YEARS, S/O.LATE KUNHIKUTTY, PUTHENPURAYIL HOUSE, DHARMADAM P.O., THALASSERY, KANNUR DISTRICT - 670 106.** **BY ADVS. B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/S:** **PATHALAYINTAVIDA USMAN,** **AGED 56 YEARS, S/O.ABDULLA, ONDATH HOUSE, KAIVELIKKAL, P.O.PUTHOOR, THALASSERY TALUK, KANNUR DISTRICT - 670 692.** **BY ADV SRI.K.P.HAREENDRAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH RCRev..451/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCR No.451/2019 and conn.cases 5 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA,** **1944** **RCREV. NO. 452 OF 2019** **AGAINST THE ORDER IN R.C.P.NO.15/2014 OF MUNSIFF COURT,** ## **THALASSERY** **R.C.A.NO.80/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS** **COURT - III, THALASSERY** **REVISION PETITIONER/S:** **C.V.VASU, AGED 79 YEARS, S/O.CHATHUKUTTY, TAILORING WORK, C.V.NIVAS, CHONADAM, P.O.ERANHOLI, THALASSERY TALUK, KANNUR DISTRICT - 670 107.** **BY ADVS. B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/S:** **PATHALAYINTAVIDA USMAN,** **S/O.ABDULLA, AGED 56 YEARS, ONDATH HOUSE, KAIVELIKKAL, P.O.PUTHOOR, THALASSERY TALUK, KANNUR DISTRICT - 670 692.** **BY ADV SRI.K.P.HAREENDRAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH RCRev.451/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCR No.451/2019 and conn.cases 6 ## **ORDER** **[RCRev. Nos.451/2019, 453/2019, 450/2019, 452/2019]** ## **A. Muhamed Mustaque, J.** The landlord approached the Rent Control Court for eviction on various grounds and ultimately was granted an eviction under Section 11(3) of the Kerala Buildings(Lease and Rent Control) Act, 1965 (for short, the 'Act') on the ground of _bona fide_ need. The need projected was to demolish the tenanted premises to pave way for the construction of a commercial complex in a building behind the tenanted premises. Both the courts concurrently found in favour of the landlord. In these Rent Control Revisions, we have to decide on a point of law involved. Can a landlord prove a claim under Section 11(3) of the Act without examining himself or not. In this case, PW1, a person who claimed to be a Manager was examined and based on his oral evidence, both the authorities held in favour of the landlord. RCR No.451/2019 and conn.cases 7 2. This is a case where the landlord seeks eviction for himself and not for any other dependant in his family. 3. Section 11(3) of the Act provides for eviction on the ground of _bona fide_ needs of the landlord or his dependant. Section 11(3) of the Act states as follows: “ _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 dependant on him.”_ 4. It is to be noted under Section 11(10) of the Act states that the Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-sections (3), (4), (7), or sub-section (8) is _bona fide_ , make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so RCR No.451/2019 and conn.cases 8 satisfied, it shall make an order rejecting the application. Perhaps, it is necessary to distinguish between Sections 11(3) and 11(10) of the Act to understand the scope of enquiry in a petition under Section 11(3) of the Act. 5. The legislators' wisdom was to allow a landlord to evict the tenant for any need for himself or the dependant of his family to occupy the tenanted premises after eviction. The legislator while recognising the need for eviction on such needs, prefixed the statutory requirement that it must be _bona fide_ . The _bona fide_ under Section 11(3) of the Act essentially denotes the mind of the landlord or if it is related to someone in the family, to the mind of the dependant. The objective evaluation of such enquiry under Section 11(3) of the Act is essentially related to the subjective mind of a person who speaks about his requirement or need under Section 11(3) of the Act. The quality of need or requirement essentially is RCR No.451/2019 and conn.cases 9 gripped with the virtue of _bona fide_ to allow a claim under Section 11(3) of the Act. On the other hand, the _bona fide_ as referrable under Section 11(10) of the Act only denotes once the ground for eviction is established, if not found to be with any _mala fides, t_ he court can very well grant eviction. In such enquiry under Section 11(10) of the Act the court is not subjecting enquiry to establish any ground to grant an order of eviction but to decline if there exists _mala fide_ or it is actuated ill motive. It is only when the landlord is examined and his mind is opened for scrutiny objectively by the court by allowing the tenant to cross-examine him, the _bona fides_ of the need is verified by the court. The Rent Control legislation is also protective legislation, as far as the tenant is concerned. Denying an opportunity to discredit the claim of _bona fide_ would amount to denying the protection as envisaged under the law. It is for the landlord to demonstrate his mind by RCR No.451/2019 and conn.cases 10 adducing evidence to show that his need is _bona fide_ . The _bona fides_ of the need itself is a condition precedent for eviction under Section 11(3) of the Act. That cannot be bypassed by allowing a third party to adduce evidence on behalf of the landlord who is unconnected with the need projected in the case. The _bona fide_ would be tested vis a vis the need projected in such case. The landlord or the dependant will have to be examined to justify any claim for eviction under Section 11(3) of the Act. 6. The views of this Court in **George Thomas v.** **T.N.Menon and Others [2011 (1) KHC 43] and Gopalakrishnan K. v. K. Maqbool Sha [2019 (4) KHC** **521]** and the Apex Court in **Joseph Mathew v. Jose Thomas [2005 KHC 1834],** fortify the fact that the Rent Controller must be satisfied with the claim is _bona fide_ by examining the person who associated with such need. RCR No.451/2019 and conn.cases 11 Both authorities below placed reliance on the evidence adduced by a person who styled himself as the Manager of the landlord. This is a serious irregularity committed by the authorities below warranting interference invoking revisional jurisdiction. Accordingly, the impugned order is set aside. We remand back the matter for reconsideration by allowing the landlord to examine himself as a witness. The parties are directed to appear before the court below on 19.l2.2022. Thereafter, the petition for eviction shall be disposed of within a period of three months, after allowing both parties to adduce evidence. No costs. ## **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** **Sd/-** ## **SHOBA ANNAMMA EAPEN,** ## **JUDGE** **ln**