RCREV.NO.25 OF 2024 (Rent Control Revision) High Court of Kerala, Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024/16TH MAGHA, 1945 ``` ## **`RCREV.NO.25 OF 2024`** ``` AGAINST THE JUDGMENT DATED 12.10.2023 IN RCA NO.63 OF 2017 OF RENT CONTROL APPELLANTE AUTHORITY (ADDITIONAL DISTRICT COURT), KOZHIKODE- II, ARISING OUT OF RCP NO.33 OF 2014 DATED 21.01.2017 OF RENT CONTROL COURT (ADDITIONAL MUNSIFF), KOZHIKODE-I ``` ``` REVISION PETITIONERS/RESPONDENTS 2 TO7/L.RsOF RESPONDENT: ``` ``` 1CHANDRAMATHI AGED 77 YEARS, W/O. THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE., PIN – 673 611 ``` ``` 2BAIJUNATH.T AGED 58 YEARS, S/O. THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE., PIN – 673 611 ``` ``` 3JAYAMOHAN.T AGED 54 YEARS, S/O. THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE., PIN – 673 611 ``` ``` 4MANOJ.T AGED 52 YEARS, S/O. THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE., PIN – 673 611 ``` ``` 5VIJESH.T AGED 50 YEARS, S/O. THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE, PIN – 673 611 ``` - **`6 SHAJI.T AGED 48 YEARS, S/O. THAZHATHEL SREEDHARAN, RESIDING AT THAZHATHEL HOUSE, POST MAKKADA, KAKKODI, KOZHIKODE., PIN – 673 611`** 2 R.C.(Rev.)No.25 of 2024 ``` BY ADVS. P.B.SUBRAMANYAN P.B.KRISHNAN SABU GEORGE ``` ``` MANU VYASAN PETER ``` ``` RESPONDENTS/APPELLANTS/PETITIONER No.1 AND SUPPLIMENTAL PETITIONERS 3 TO 6: ``` ``` 1PANDIKASALA NIYAS AGED 48 YEARS, S/O. PANDIKASALA MUHAMMED KUTTY, RESIDING AT "NIYAS NIVAS" IN FEROKE AMSOM, NALLUR DESOM OF KOZHIKODE TALUK, KOZHIKODE., PIN-673 631 ``` ``` 2KARATTIYATTIL BEERAN AGED 69 YEARS, S/O. MUHAMMED, RESIDING AT KARATTIYATTIL HOUSE, CHANDAKADAVU, FEROKE P.O., KOZHIKODE., PIN – 673 631 ``` ``` 3KUZHIYAMBADATH SAIDA AGED 59 YEARS, W/O.BEERAN, RESIDING AT KARATTIYATTIL HOUSE, CHANDAKADAVU, FEROKE P.O., KOZHIKODE., PIN – 673 631 ``` ``` 4AIYSHA NIYAS AGED 21 YEARS, D/O. PANDIKASALA NIYAS, KARATTIYATTIL HOUSE, CHANDAKADAVU, FEROKE P.O., KOZHIKODE., PIN – 673 631 ``` ``` 5FATHIMA NIYAS AGED 20 YEARS, D/O. PANDIKASALA NIYAS, KARATTIYATTIL HOUSE, CHANDAKADAVU, FEROKE P.O., KOZHIKODE, PIN – 673 631 ``` ``` BY ADV SRI.R.RAMADAS ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.C.(Rev.)No.25 of 2024 ## **ORDER** ## **Anil K. Narendran, J.** The petitioners are respondents-tenants in RCP No.33 of 2014 on the file of the Rent Control Court (Additional Munsiff-I), Kozhikode, a petition filed by the respondents herein-landlords under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenants from the petition schedule shop room, where the original tenant was conducting a bakery. The petition schedule shop room forms part of a four-storied commercial complex namely ‘Simax Tower’. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the landlords for the purpose of parking of vehicles coming to the commercial complex, for which the petition schedule shop room has to be demolished. Before the Rent Control Court, the tenants entered appearance and filed counter, opposing the order of eviction sought for. On the side of the landlords, the 1[st] respondent herein was examined as PW1 and Exts.A1 to A8 were marked. On the side of the tenants, the 5[th] petitioner herein was examined as RW1 and Exts.B1 to B3 series were marked. The report and sketch of the Advocate Commissioner along with photographs were marked as Exts.C1 to C3. After considering 4 R.C.(Rev.)No.25 of 2024 the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the need projected in the Rent Control petition for seeking an order of eviction under Section 11(3) of the Act is not bona fide. However, the findings of the Rent Control Court on the first and second proviso to Section 11(3) of the Act were against the tenant. By the order dated 21.01.2017, the Rent Control Court granted an order of eviction under Section 11(2)(b) of the Act, however, declined an order of eviction under Section 11(3). 2. Challenging the order of the Rent Control Court to the extent of declining an order of eviction under Section 11(3) of the Act, the landlords filed R.C.A.No.63 of 2017 before the Rent Control Appellate Authority (Additional District Judge -II), Kozhikode. By the judgment dated 12.10.2023, the Appellate Authority allowed that appeal, whereby the finding of the Rent Control Court that the need projected in the Rent Control petition for seeking an order of eviction under Section 11(3) of the Act is not bona fide was reversed. During the pendency of that appeal, the landlords pointed out certain additional facts regarding the area occupied by ‘Cafe Malabary’. That aspect was also taken note of by the Appellate Authority, while reversing the finding of the Rent Control Court on the order of eviction sought for under 5 R.C.(Rev.)No.25 of 2024 Section 11(3) of the Act. Accordingly, by the judgment dated 12.10.2023, the Appellate Authority granted an order of eviction under Section 11(3) of the Act and directed the petitioners herein, who are the legal representatives of the deceased original tenant, to surrender vacant possession of the petition schedule shop room, within the time limit specified in that judgment. Feeling aggrieved, the petitioners-tenants are before this Court in this Rent Control Revision filed under Section 20 of the Act. 3. Heard the learned counsel for the petitioners-tenants and the learned counsel for the respondents-landlords. 4. During the course of arguments, the learned counsel for the petitioners-tenants would confine the challenge made in this Rent Control Revision against the finding of the Rent Control Appellate Authority that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. 5. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. 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 6 R.C.(Rev.)No.25 of 2024 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 suitable building available in the locality for such person to carry on such trade or business. 6. 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 7 R.C.(Rev.)No.25 of 2024 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. 7. In **Nalakath Saidali Haji v. Kalluparamba Musthafa and others [2015 (4) KHC 815]** , a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in **Kizhakkayil Suhara v.** **Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19]** that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has considered the need put forward by the landlord in accordance with the principles laid down in the 8 R.C.(Rev.)No.25 of 2024 decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord. 8. 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. 9. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016** **(2) KLJ 164]** , a Division Bench of this Court relied on the 9 R.C.(Rev.)No.25 of 2024 decision of the Apex Court in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** , wherein the Apex Court held that, in order to order eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in **Shiv Sarup Gupta [(1999) 6 SCC 222]** , wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control Legislation. In **Abdul Salam v. Sebastian [2013** **(4) KLT 592]** , a Division Bench of this Court held that, when the landlord has clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control 10 R.C.(Rev.)No.25 of 2024 Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, if there is admission on the part of the landlord of coming into possession of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act. ## 10. In **Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** , a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held 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 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 but, of course, subject to the first and second provisos to Section 11(3). 11 R.C.(Rev.)No.25 of 2024 11. The need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the landlords to demolish the petition schedule shop room and utilize that area as parking space for their multi-storied commercial building by name ‘Simax Tower’. That need is substantiated by the evidence placed on record, which includes the oral testimony of the 5[th] respondent herein as PW1. The Advocate Commissioner, who submitted Ext.C1 Commission Report, has produced Ext.C1(a) to C1(b) photographs, regarding the parking facility available in the shopping complex. Relying on Exts.B2 and B3 series of photographs, the tenant raised a contention that the need projected in the Rent Control Petition is only a ruse to evict the tenants from the petition schedule shop room. After considering the pleadings and evidence on record, the Appellate Authority found sufficient reason for reversing the finding of the Rent Control Court on the above aspect, as stated in paragraphs 8 to 10 of the judgment. While arriving at such a conclusion, the Appellate Authority has taken note of the law laid down by this Court in **Kunhamma v. Akkali Purushothaman** [ **2007 (11) SCC 181], Gopalakrishnan.K. v. K. Maqbool Sha [2019 (4) KHC 521], A.S. Parvathy Krishnan v. Jose and others [2007 (4) KLT 1062]** and **Shajahan and another** 12 R.C.(Rev.)No.25 of 2024 ## **v. Muhammed and others [2017 (5) KHC 584]** , in the context of the need projected in the Rent Control Petition for occupation of the land as parking space for the multi-storied commercial building, after demolishing the petition schedule shop room. The reasoning of the Appellate Authority for reversing the finding of the Rent Control Court on the bona fide need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is neither perverse nor patently illegal, which requires no interference in this Rent Control Revision. 12. 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 13 R.C.(Rev.)No.25 of 2024 under sub-section (1) shall be in its discretion. 13. 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 consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have reappreciated 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 reappreciating 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. ## 14. In **T. Sivasubramaniam v. Kasinath Pujari** **[(1999) 7 SCC 275]** the Apex Court held that, the words ‘to 14 R.C.(Rev.)No.25 of 2024 satisfy itself’ employed in Section 25 of the Tamil Nadu 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. 15. 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, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its 15 R.C.(Rev.)No.25 of 2024 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 re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist. ## 16. 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** 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 16 R.C.(Rev.)No.25 of 2024 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. 17. 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 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. ## 18. In **Abdul Salam v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the 17 R.C.(Rev.)No.25 of 2024 view taken is perverse and the statutory scheme has not been kept in mind and if it requires correction, then Court can reappreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence. ## 19. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016** **(2) KLJ 164]** , a Division Bench of this Court held that, the High Court (in revision) is obliged to test the order of the Rent Control Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. 20. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal. It cannot also be said that, while ordering eviction of the tenant under Section 11(3) of the Act, the 18 R.C.(Rev.)No.25 of 2024 Appellate Authority has committed a manifest error, warranting interference of this Court, in exercise of the revisional jurisdiction under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed by the Appellate Authority under Section 11(3) of the Act. 21. The learned counsel for the petitioners-tenants would submit that the tenants may be granted at least six months’ time to vacate the petition schedule shop room. The tenants are prepared to clear the entire dues, if any, towards arrears of rent, within a time limit that may be fixed by this Court, and they shall continue to pay monthly rent for the remaining period, without any default, till they give vacant possession of the petition schedule shop room to the landlords. 22. The learned counsel for the respondents-landlords would submit that the landlords have no objection in this Court granting a reasonable time to the petitioners-tenants to vacate the petition schedule shop room. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority; however, by granting five months' time to the petitioners-tenants, to surrender vacant 19 R.C.(Rev.)No.25 of 2024 possession of the petition schedule shop room to the respondents-landlords, subject to the following conditions: (i) The respondents-tenants 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 they will surrender vacant possession of the petition schedule shop room to the petitioners-landlords within five months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop room and further they 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 respondents-tenants 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 two 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 respondentstenants 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- 20 R.C.(Rev.)No.25 of 2024 landlords will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** ded