RCRev. Nos. 52/2017, 131/2017 & 298/2016 (C.P. Shafi vs Mariyambi; C.P. Shaji vs Mariyambi; Pradeep Kumar vs Mariyambi) High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 RCREV. NO. 52 OF 2017** **[AGAINST THE JUDGMENT IN RCA 113/2015 OF ADDITIONAL DISTRICT COURT-III, KOZHIKODE/ RCP 157/2013 OF RENT CONTROL COURT (ADDITIONAL MUNSIFF-II), KOZHIKODE]** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** C.P SHAFI AGED 31 YEARS S/O.USMANKOYA, AGED 31 YEARS, 23/1380, "SHANAS HOUSE",CHERUKANDIPARAMBIL, PARVATHIPURAM ROAD, KANNACHERI P.O.,KALLAI, PANNIYANKARA, KOZHIKODE TALUK BY ADVS. SRI.LAL GEORGE SMT.P.A.MENISHA SRI.SEBASTIAN VARGHESEK1412000 ## **RESPONDENT/RESPONDENT/PETITIONER:** MARIYAMBI, D/O.IMBICHIKOYA, AGED 44 YEARS, THOPPIL HOUSE, NAGARAM AMSOM DESOM, KOZHIKODE- 673 001. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH RCRev..298/2016, 131/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR Nos.52/2017, 131/2017 & 298/2016 :-2-: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944** **RCREV. NO. 298 OF 2016** **[AGAINST THE JUDGMENT DTD.20.1.2016 IN RCA 106/2014 OF ADDITIONAL DISTRICT COURT-III, KOZHIKODE /JUDGMENT DTD.13.6.14 IN RCP 158/2013 OF ADDITIONAL MUNSIFF COURT-II , KOZHIKODE]** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** PRADEEP KUMAR AGED 40 YEARS S/O. CHANDRAN, CORPORATION ROOM NO.21/2402, KANNANCHERI, P.O.KALLAI, PANNIYANKARA AMSOM AND DESOM, KOZHIKODE TALUK-673 003. BY ADV SRI.JACOB ABRAHAM ## **RESPONDENT/RESPONDENT/PETITIONER:** MARIYAMBI D/O. IMBICHI KOYA, THOPPIL HOUSE, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK-673 003. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH RCRev..52/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR Nos.52/2017, 131/2017 & 298/2016 :-3-: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944** **RCREV. NO. 131 OF 2017** **[AGAINST THE JUDGMENT DTD.13.12.2016 IN RCA 112/2015 OF ADDITIONAL DISTRICT COURT-III,KOZHIKODE AND JUDGMENT DTD.25.6.2015 IN RCP 156/2013 OF ADDITIONAL MUNSIFF COURTII,KOZHIKODE]** ## **REVISION PETITIONER//APPELLANT/RESPONDENT:** C.P. SHAJI,S/O. USMANKOYA, AGED 39 YEARS, 23/1380, "SHANAS HOUSE, "CHERUKANDIPARAMBIL,PARVATHIPURAM ROAD,KANNACHERI PO., KALLAI,PANNIYANKARA KOZHIKODE TALUK BY ADVS. SRI.LAL GEORGE SMT.P.A.MENISHA SRI.SEBASTIAN VARGHESEK1412000 ## **RESPONDENT/RESPONDENT/PETITIONER:** MARIYAMBI D/O. IMBICHIKOYA,AGED 44 YEARS,THOPPIL HOUSE, NAGARAM AMSOM DESOM, KOZHIKODE, PIN-673001 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH RCRev..52/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR Nos.52/2017, 131/2017 & 298/2016 **==> picture [37 x 9] intentionally omitted <==** **O R D E R 'C.R.'** ## Shoba Annamma Eapen J. The tenants are the revision petitioners. They filed the Rent Control Revisions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), challenging the the common judgment dated 13.12.2016 in R.C.A.Nos.112/2015 & 113/2015 of the Rent Control Appellate Authority (III Additional District Judge, Kozhikode) arising from the common order dated 25.06.2015 in R.C.P.Nos.156/2013 & 157/2013 of the Rent Control Court/Additional Munsiff-II, Kozhikode and the judgment dated 20.01.2016 in R.C.A.No.106/2014 of the Rent Control Appellate Authority (III Additional District Judge, Kozhikode) arising from the order dated 13.6.2014 in RCP No. 158/2013 of the Rent Control Court/Additional Munsiff-II, Kozhikode. The Appellate Authority confirmed the orders of eviction RCR Nos.52/2017, 131/2017 & 298/2016 :-5-: granted by the Rent Control Court (Additional Munsiff-II), Ernakulam, in favour of the respondent-landlady under Section 11(3) of the Act. 2. Rent control petitions were filed by the landlady under Sections 11(2)(b), 11(3) (in RCP No. 158/2013) and under Sections 11(2)(b), 11(3) and 11(4)(i) (in RCP No.156/2013 & 157/2013)of the Act. The petition schedule buildings belong to Mariyambi, the respondent herein and Simi Ummer Koya. It is stated by the landlady that the rent control petitions were filed after obtaining consent from the co-owner Simi Ummerkoya. Rent was kept in arrears by the tenants. The need projected by the landlady is for the landlady's husband named Muhammed Arif, to start a business in furniture. It was also stated that the landlady's husband depends on her and the other co-owner for the petition schedule building. The tenants have sublet the RCR Nos.52/2017, 131/2017 & 298/2016 :-6-: petition schedule building without the consent of the respondent/landlady herein or the co-owner. The Rent Control Court allowed the eviction petitions under Sections 11(2)(b) and 11(3) and dismissed the prayer for eviction under Section 11(4)(i) on the ground that sub-lease was not proved. The tenants went in appeal and the appellate authority affirmed the order of the Rent Control Court. 3. The learned counsel for the revision petitioners/tenants, assailing the orders of eviction, argued that the rent control petitions were filed by the landlady suppressing material facts. Mr.Mohammed Arif, landlady's husband, is the owner of shop rooms bearing Nos.21/860, 21/861, 21/862, 21/863, 21/864, 21/865 and 21/866 and a big hall in ward No.21 of Kozhikode Corporation and is already in possession of the rooms and has filed rent control petitions for getting vacant possession of shop room Nos. 21/860, RCR Nos.52/2017, 131/2017 & 298/2016 :-7-: 21/863 and 21/864 stating the very same bona fide need for starting furniture business. The learned counsel further submitted that _the_ need projected by the landlady is only a ruse to evict the tenants and there is no _bona fide_ need as alleged. The landlady's husband is not dependent on the respondent herein or the co-owner for the petition schedule rooms to start furniture business. The petitioners in the respective rent control petitions raised similar objections. They contended that the building to which the petition schedule shop rooms form part, is not sufficient to meet the requirements of a furniture shop and that the need is not _bona fide_ . It is totally unsuitable to start a business as proposed by the respondent. It was further contended that the tenants are dependent for their livelihood mainly on the income derived from the business conducted in the tenanted premises and there are no suitable rooms available in the RCR Nos.52/2017, 131/2017 & 298/2016 :-8-: locality for them to carry on the same. 4. Heard the learned counsel appearing for the petitioners in RCR Nos.52/2017 & 131/2017, Sri.Lal George and the petitioner in RCR No.298/2016, Sri. Jacob Abraham, and also the learned counsel appearing for the respondents. 5. PW1 Muhammed Arif, was examined on the side of the landlady and RWs. 1 & 2 on the side of the tenants. Exts.A1 to A8 and B1 to B8 were received in evidence before the Rent Control Court. The petitioners/tenants are conducting business in their respective petition schedule rooms. Both rooms are adjacent rooms. The common contentions raised by the tenants are that the rent control petitions were filed suppressing material facts and the need projected by the landlady lacks _bona fides_ and they also contended that the building is unsuitable for the need now put forth by the landlady and there are no other suitable buildings RCR Nos.52/2017, 131/2017 & 298/2016 :-9-: in the locality for them to shift. 6. The main argument raised by the learned counsel for the revision petitioners is that the need projected by the landlady that her husband Muhammed Arif intends to start furniture business in the petition schedule shop rooms and he is dependent on the landlady or the co-owner for the petition schedule rooms, is not correct. It was contended that the husband of the landlady, who is the owner of other building, which is situated in Kallai, Kozhikode, has filed rent control petitions for eviction of the tenants on the same ground. PW1,Muhammed Arif has tendered testimony, during cross- examination that he is the owner of a building in Kallai, Kozhikode and that he has got vacant possession of one of the rooms and other eight rent control petitions are pending. In order to substantiate the said contentions of the tenants, they produced Exts.B2 to B8 copy of rent control petitions RCR Nos.52/2017, 131/2017 & 298/2016 :-10-: and were also marked. He further deposed that in all these cases, the need projected is the same ie; to start furniture business for PW1. Further, in the rent control petitions, the landlady has stated that there is no other vacant building for the landlady or her husband for conducting furniture business. But the courts below, failed to consider crucial and the relevant aspect that there was suppression of material facts by the landlady. The ownership of the building by the husband of the landlady or the filing of the rent control petitions by the husband of the landlady projecting the very same reason, which were very crucial in these cases, escaped the consideration by the courts below. On the other hand, the courts below came to the conclusion that the tenants failed to prove the contention raised. It was specifically admitted by PW1 that he had filed rent control petitions for eviction of tenants raising the very same _bona_ RCR Nos.52/2017, 131/2017 & 298/2016 **==> picture [44 x 9] intentionally omitted <==** _fide_ need. 7. For eviction under Section 11(3) of the Act, the need of the dependent must be _bona fide_ . In order to prove the _bona fides,_ the landlady need to let in evidence of her necessity, desire etc. for using the petition schedule shop rooms for their need. The need put forth by the landlady was that her husband requires the rooms for starting furniture business. Whether the landlady _bona fide_ requires the rooms can be assessed by the court only by examining the dependent husband. PW1, Muhammed Arif, husband of the landlady has tendered evidence and admitted that he has another building in Kallai, Kozhikode and has filed rent control petitions raising the very same _bona fide_ need. The need projected by the landlady in the rent control petitions that her husband needs the petition schedule buildings for conducting business lacks _bona fides_ . The suppression of RCR Nos.52/2017, 131/2017 & 298/2016 **==> picture [44 x 9] intentionally omitted <==** facts by the landlady in the rent control petitions affects the very genuineness of the need projected. 8. In the decision reported in **Kishan Chand** v. **Jagdish Pershad and others** [2003 KHC 1944 (SC)], it was held that concealment of material facts by landlord seeking eviction on the ground of _bona fide_ need is a sufficient reason for rejecting the petition. It goes without saying that honesty is the hall mark of _bona fide_ need. It is a well settled proposition that _bona fide_ need is not synonymous to dire need or necessity or a mere whim or fancy. A landlord seeking eviction of a tenant under Section 11 (3) of the Act is expected to place all material facts so that the court can make an assessment of the situation about the state of mind of the landlord, who claims eviction on the ground of _bona fide_ need. The landlady herein has suppressed a very material fact which will have a direct RCR Nos.52/2017, 131/2017 & 298/2016 :-13-: impact on the assessment of the _bona fides_ of her need. The suppression of the other rent control petitions filed by the husband of the landlady for the very same need is a material suppression of fact. 9. Having found that the landlady has failed to establish the _bona fide_ need, we are of the definite view that, the question involved in provisos does not arise for consideration in this case. Therefore, we do not venture to decide the aspects involved in the two provisos provided to Section 11 - (3) of the Act. The courts below failed to appreciate the evidence in its correct perspective. In the decision reported in **Shiv Sarup Gupta** v. **Dr.Mahesh Chand Gupta** ((1999) 6 SCC 222) the Supreme Court has observed as follows: _"….............. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is_ RCR Nos.52/2017, 131/2017 & 298/2016 :-14-: _bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord."_ 10. In a decision reported in **Deena Nath v. Pooran** **Lal** [(2001) 5 SCC 705], it was held that _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. The landlady has failed in proving that her need is bonafide for the requirement of the shop rooms for her husband to start business. 11. The fact that the jurisdiction of this Court under Section 20 of the Act is very limited though much wider than RCR Nos.52/2017, 131/2017 & 298/2016 :-15-: the revisional jurisdiction under Section 115 of the CPC is well settled. But the facts and circumstances of the cases and the evidence on record clearly establish that the entire approach made by the authorities below in these revisions regarding the _bona fides_ of the claim made by the landlady for eviction under Section 11(3) of the Act is contrary to law and perverse without proper appreciation of the evidence on record. Therefore, we find that this is an appropriate case wherein we should exercise our revisional jurisdiction under Section 20 of the Act to rectify the illegality, irregularity and impropriety committed by the authorities below in this case. 12. The impugned orders passed by the Rent Control Court confirmed by the Appellate Authority granting eviction under Section 11(3) of the Kerala Building (Lease and Rent Control) Act are set aside. RCR Nos.52/2017, 131/2017 & 298/2016 :-16-: In the result, the Rent Control Revisions are allowed with the following observations:- (a) The common judgment dated 13.12.2016 in R.C.A.Nos.112/2015 & 113/2015 of the Rent Control Appellate Authority (III Additional District Judge, Kozhikode) arising from the common order dated 25.06.2015 in R.C.P.Nos.156/2013 & 157/2013 of the Rent Control Court/Additional Munsiff-II, Kozhikode and the judgment dated 20.01.2016 in R.C.A.No.106/2014 of the Rent Control Appellate Authority (III Additional District Judge, Kozhikode) arising from the order dated 13.6.2014 in RCP No. 158/2013 of the Rent Control Court/Additional Munsiff-II, Kozhikode are set aside. - (b) The tenants shall clear the entire arrears of rent if RCR Nos.52/2017, 131/2017 & 298/2016 **==> picture [44 x 9] intentionally omitted <==** any, within one month from the date of receipt of certified copy of this order and shall continue to pay rent to the landlady. Sd/- **A.MUHAMED MUSTAQUE** JUDGE sd/- **SHOBA ANNAMMA EAPEN** JUDGE MBS/