R.C.Rev.No.363 of 2019

## **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 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943** **R.C.REV.NO.363 OF 2019** **AGAINST THE JUDGMENT DATED 24.06.2019 IN R.C.A.NO.212 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-V), KOZHIKODE AND THE ORDER DATED 23.07.2016 IN R.C.P.NO.8 OF 2014 OF THE RENT CONTROL COURT (MUNSIFF),** ## **KOYILANDY** ## **REVISION PETITIONERS:** - **1 A.T.IMBICHI PATHU, AGED 68 YEARS, D/O. ABDULKHADER HAJI, RESIDING AT MANAR HOUSE, PANTHALAYANI AMSOM, KOTHAMANGALAM DESOM, EAST ROAD, KOYILANDY, KOZHIKODE [DIED]** - **2 A.T. MOHAMMED, AGED 63 YEARS, S/O. ABDULKHADER HAJI, RESIDING AT SAHEEH HOUSE, PARAPPALLY ROAD, KOLLAM DESOM, KOYILANDY, KOZHIKODE DISTRICT.** - **3 A.T. AYISHA,** - **AGED 61 YEARS, D/O. ABDULKHADER HAJI, RESIDING AT SAMSAM HOUSE, PANTHALAYANI AMSOM, KOTHAMANGALAM DESOM, EAST ROAD, KOYILANDY, KOZHIKODE DISTRICT.** - **4 A.T. ABDURAHIMANKUTTY,** - **AGED 60 YEARS, S/O. ABDULKHADER HAJI, RESIDING AT SANA HOUSE, NEAR UP SCHOOL, KAPPAD POST, KOYILANDY TALUK, KOZHIKODE.** - **5 A.T. AALIKUTTY,** - **AGED 58 YEARS, S/O. ABDULKHADER HAJI, RESIDING AT BAVAS, PANTHALAYANI AMSOM, KOTHAMANGALAM DESOM, EAST ROAD, KOYILANDY, KOZHIKODE.** 2 R.C.Rev.No. 363 of 2019 ## **6 A.T. RAHIYA,** - **AGED 55 YEARS, D/O. ABDULKHADER HAJI,** **RESIDING AT ONB HOUSE, NEAR CHEMBATH SCHOOL, BEYPORE AMSOM, NADAVATTAM DESOM, KOZHIKODE TALUK.** - **7 A.T. SARA,** - **AGED 53 YEARS, D/O. ABDULKHADER HAJI, RESIDING AT KUTTYKANDY HOUSE, NEAR AMHA SCHOOL, POST ERVADIMUKKU, KINALUR AMSOM, KOZHIKODE TALUK.** - **8 A.T. ISMAIL,** **AGED 48 YEARS, S/O. ABDULKHADER HAJI, RESIDING AT AVARANKATH, PARAPPALLY ROAD, KOLLAM DESOM, KOYILANDY, KOZHIKODE.** - **9 A.T. ABDULLAKUTTY,** **AGED 66 YEARS, S/O. ABDULKHADER HAJI, RESIDING AT FASILAS, PUTHIYANGADI, NEAR B.M.SHOOL, PUTHIYANGADI AMSOM DESOM OF KOZHIKODE.** - **10* VAHEED, AGED 54 YEARS, D/O IMBICHIPATHU, RESIDING AT MARVA, PO KACHERIKUNNU, POKKUNNU, KOZHIKODE.** - **11* BUSHRA, AGED 50 YEARS, D/O IMBICHIPATHU, RESIDING AT RAOF MANZIL, PO ELATHUR, KOZHIKODE.** - **12* SHAHIRA, AGED 48 YEARS, D/O IMBICHIPATHU, RESIDING AT MANAR HOUSE, KOTHAMANGALAM, KOYILANDY, KOZHIKODE.** - ***LEGAL HEIRS OF 1ST REVISION PETITIONER ARE IMPLEADED AS ADDITIONAL PETITIONERS 10 TO 12 AS PER ORDER DATED 14.03.2022 IN I.A.NO.1 OF 2021.** **BY ADVS.** - **V.V.SURENDRAN** **SRI.P.A.HARISH** 3 R.C.Rev.No. 363 of 2019 ## **RESPONDENT/S:** - **1 VELLANTAKATH IMBICHIMAMMU** - **AGED 58 YEARS, S/O. VALIYA MOIDEENKUTTY, RESIDING AT MAPPILAKATH HOUSE, VIYYUR AMSOM, KOLLAM DESOM, KOYILANDY, KOZHIKODE, REPRESENTED BY POA HOLDER MAPPILAKATH FOUSIYA, AGED 48 YEARS, D/O. AHAMMED, RESIDING AT MAPPILAKATH HOUSE, VIYYUR AMSOM, KOLLAM DESOM, KOYILANDY, KOZHIKODE-673305.** - **2 A.T. NASEEFA, AGED 65 YEARS, D/O. ABDULKHADER HAJI, RESIDING AT ARAFA HOUSE, NEAR PRESTIGE SCHOOL, MANKAV AMSOM DESOM, POST MANKAV, KOZHIKODE-673 007 (DELETED)**** - ****(RESPONDENT NO.2, DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER THE ORDER DATED 19/01/2021 IN IA NO.2/2021)** - **3 A.T. IBRAHIM, AGED 48 YEARS, S/O. ABDULKHADER HAJI, RESIDING AT AVARANKATH, PARAPPALLY ROAD, KOLLAM, KOYILANDY, KOZHIKODE-673 305.** - **SUPPL.R4 RASHEED, AGED 52 YEARS, S/O IMBICHIPATHU,** - ***** RESIDING AT AAIRAH HOUSE, KOTHAMANGALAM, KOYILANDY, KOZHIKODE – 673305.** - *****SUPPLEMENTARY 4TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 14.03.2022 IN I.A.NO.1 OF 2021. BY ADVS.** **R1 BY SRI.B.KRISHNAN** **R1 BY SRI.R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL** **HEARING ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 R.C.Rev.No. 363 of 2019 ## **O R D E R** ## Ajithkumar, J. The respondents-tenants in R.C.P.No.8 of 2014 on the file of the Rent Control Court (Munsiff), Koyilandy are the revision petitioners. The 1st respondent is the landlord. He filed the rent control petition seeking eviction under Section 11(2)(b), 11(3) and (11)(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered by the Rent Control Court on all the three grounds. An appeal was preferred by the petitioners under Section 18(1)(b) of the Act as R.C.A.No.212 of 2016 before the Rent Control Appellate Authority (Additional District Judge-V), Kozhikode. That appeal was dismissed. Feeling aggrieved thereof, this revision petition is filed under Section 20 of the Act. 2. Sri.Abdul Khader Haji was the tenant in the petition schedule shop room. After his death, his heirs continued as tenants. The petitioners and respondents 2 and 3 are the heirs. On the allegation that rent at the rate of Rs.1,500/- per month since February 2011 has been kept in arrears, the 5 R.C.Rev.No. 363 of 2019 demand of the 1[st] respondent to surrender vacant possession of the room for being occupied by his wife for conducting a tailoring business was declined by the tenants and also the tenants acquired other rooms reasonably sufficient for their purpose, petition for eviction was filed. Respondent Nos.2 and 3 remained exparte throughout. Other co-tenants, who are the petitioners herein, filed a counter statement. Their contentions are the following: 3. Rent till May 2013 was already paid. The 1[st] respondent as well as his wife are employed abroad and very rich. The projected need that the wife of the 1[st] respondent wanted to start a tailoring business is not bona fide and it was set forth as a pretext for eviction. The 4[th] petitioner is now conducting a grocery shop in the petition schedule shop room. He is depending for his livelihood solely on the income derived from that business. No other suitable room is available in the locality to shift his business. Whereas, the 1[st] respondent is in possession of several other buildings, suitable for his purpose. The allegation that the petitioners acquired other buildings is incorrect. 6 R.C.Rev.No. 363 of 2019 4. The Rent Control Court during trial had recorded oral testimonies of PWs.1 and 2 and RW1. Exts.A1 to A10, B1 to B6 and C1 were marked. The defence set forth by the petitioners was not accepted by the Rent Control Court as well as the Appellate Authority. Falling back on the very same contentions and further alleging that the courts below did not consider the evidence on record in its proper perspective, this revision petition has been preferred. 5. On 04.09.2019, this Court admitted the revision and ordered notice to the respondents. Execution of the order of eviction was stayed initially for three months. Order of stay was extended from time to time and is still in force. 6. The 2[nd] respondent was deleted from the party array on the application of the petitioners. The 1[st] respondent-landlord entered appearance through his counsel. 7. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the 1[st] respondent. 8. On the ground of arrears of rent also eviction was 7 ## R.C.Rev.No. 363 of 2019 ordered. The learned Counsel for the petitioner would submit that entire arrears was already deposited during the pendency of the proceedings. That fact is not controverted by the opposite side. In the light of the provisions of section 11(2)(b) of the Act an order of eviction on the ground of arrears of rent is only a tentative one and on deposit of the arrears, that order would not survive any further requiring us to consider its legality. 9. Wife of the 1[st] respondent-landlord is PW1. She deposed that she as well as her husband were working abroad for quite sometime and she has returned abandoning her job abroad. She underwent a course in tailoring and she wanted to start a tailoring shop in the petition schedule shop room. The 1[st] respondent or PW1 does not own or possess any other building, which is suitable for the purpose and therefore, eviction of the tenants from the petition schedule shop room was the only option. The 1[st] respondent produced Ext.A8, which is a copy of the passport of PW1 in support of his contention that she returned home after cancelling her Visa. 8 R.C.Rev.No. 363 of 2019 10. Endorsements in Ext.A8 would reveal that the Visa of PW1 was cancelled. The learned counsel appearing for the petitioners would contend that that was an endorsement made when PW1 returned home on one occasion and the 1[st] respondent withheld production of the subsequent passport, production of which would have proved that the fact is other way around. PW1 deposed that she came back after cancelling her Visa and the same is reflected in Ext.A8. Despite the said version, the petitioners did not take any steps to get production of the passport of PW1, if there is one. In that situation, we hold that the version of PW1 supported by Ext.A8 can be believed and it proved that she returned home after cancelling her Visa. 11. There is no challenge to the version of PW1 that she had had training in tailoring. She remains jobless now. When she asserts that she wants to start a tailoring shop in the petition schedule shop room, which is owned by her husband, it cannot be said that such a projected need is not genuine, sincere and honest. 12. Section 11 of the Act deals with eviction of tenants. 9 R.C.Rev.No. 363 of 2019 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 10 R.C.Rev.No. 363 of 2019 suitable building available in the locality for such person to carry on such trade or business. 13. 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 distinguished from a 11 ## R.C.Rev.No. 363 of 2019 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. 14. 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. In **Gireeshbabu T. P. v. Jameela and others [2021 (5) KHC** **SN 30]** this Court reiterated 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, 12 R.C.Rev.No. 363 of 2019 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, of course, subject to the first and second provisos to Section 11(3) of the Act. 15. Viewed in the light of the principle of law referred to above, we are of the view that the need urged by the 1[st] respondent is genuine. PW1 being the wife, it can only be said that she is a dependent of the 1[st] respondent-landlord. In these circumstances, we find no reason to interfere with the findings of the courts below that the need urged by the 1[st] respondent is proved to be bona fide. 16. The contention of the petitioners that the landlord has many other buildings, which are suitable for the projected need, is not proved. What has been brought in evidence is that the 1[st] respondent was undertaking construction of a building. The said building has been proved to be a residential one. Therefore, there is no reason to invoke the first proviso to Section 11(3) of the Act. 17. It is contended that the 4[th] petitioner is now 13 R.C.Rev.No. 363 of 2019 conducting grocery business in the petition schedule shop room and income therefrom is the sole source of his livelihood. His two sisters, who remain unmarried, are his dependents as well. The 4[th] petitioner is RW1. He admitted that all his sisters are married away and brothers have their independent businesses. No evidence other than the oral testimony of RW1 is adduced to show that he as well as two of his sisters are depending for their livelihood on the income derived from the business in the petition schedule shop room. The evidence on record shows that the petitioners own around 30 shop rooms in the locality. When that being the evidence on record, the contention of the 4[th] petitioner that he can depend upon the income from the business in the petition schedule shop room alone for his livelihood, does not inspire confidence. The report contained in Ext.C1 and the oral evidence of PWs.1 and 2 proved that several vacant rooms are available in the locality. If the 4[th] petitioner wants to avail some other room on rent, the same is very much possible. 18. As per the second proviso to Section 11(3), the 14 R.C.Rev.No. 363 of 2019 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 insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 19. Evidence adverted to above is insufficient to prove the ingredients of the second proviso. In these circumstances, we find that both the courts below have rightly concluded that the petitioners are not entitled to the benefit of the second proviso to Section 11(3) of the Act. 20. The reasons stated by the 1st respondent for claiming eviction under Section 11(4)(iii) of the Act is that the 15 R.C.Rev.No. 363 of 2019 petitioners own and possess 30 shop rooms. The 1[st] respondent asserted particularly that one room, which is in the exclusive possession of the 4[th] petitioner and which is situated in the immediate vicinity of the petition schedule shop room, is available vacant and that dis-entitles him to continue as a tenant. The fact that such a room is there in his possession has been admitted by him during examination in court. PW2, the Commissioner, reported vide Ext.C1 and deposed in court that the said room has double the size of the petition schedule shop room. The explanation of RW1 is that the same is used now as the godown of his business in the petition schedule shop room, and therefore, the same cannot be said to be reasonably sufficient for his purpose. In the opinion of PW2 what the 4[th] respondent conducts in the petition schedule shop room is a business not of such a large volume so as to have a godown. It is beyond dispute that the said room abuts the public road. The learned counsel appearing for the petitioners would contend that that room does not have sufficient ventilation, and therefore, it cannot 16 ## R.C.Rev.No. 363 of 2019 be used to conduct a business. When the shop room is a bigger one and having opening towards the public road, lack of ventilation, cannot be put forth as a reason for its unsuitability. If RW1 feels that more ventilation is required, there is no difficulty to provide the same. Taking into account all such aspects, we are of the view that on account of acquisition of that room which is proved to be reasonably sufficient for his purpose, the petitioners are liable to be evicted from the petition schedule shop room. The findings of the courts below in this regard also do not suffer from illegality, irregularity or impropriety. 21. 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 re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot 17 R.C.Rev.No. 363 of 2019 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. 22. 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 18 R.C.Rev.No. 363 of 2019 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. 23. In **Thankamony Amma 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** , **Ubaiba** 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 re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 24. Viewed in the light of the aforesaid decisions, we 19 R.C.Rev.No. 363 of 2019 find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court. Hence this Revision Petition fails. We, accordingly, dismiss it. 25. The learned counsel for the petitioners has made a request to afford six month's time for vacating the premises pointing out the difficulty to find out another room and making necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant three months’ time. 26. Having considered all the aspects, we deem it appropriate to grant four months’ time to surrender vacant possession of the petition schedule shop room, 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 petitioner-landlord within four months 20 R.C.Rev.No. 363 of 2019 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 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 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 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