R.C.Rev.No.40 of 2016 (Narayani Bharathan and Ponnamma Lekshmi Narayani v. I. Maya Devi and Others)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 ``` ``` R.C.REV.NO.40OF 2016 ``` ``` AGAINST THE JUDGMENT IN R.C.A.No.8 OF 2010 ON THE FILE OF THE III ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, ``` ``` KOLLAM, DATED 30.09.2014 ``` ``` ORDER IN R.C.P.NO.37 OF 2008 ON THE FILE OF THE RENT CONTROL COURT, KOLLAM DATED 16.12.2009 ``` ## **`REVISION PETITIONERS:`** - **`1 NARAYANI BHARATHAN W/O.BHARATHAN PILLAI, SREEVILAS, PALLITHOTTAM, THAMARAKULAM KOLLAM`** - **`2 PONNAMMA LEKSHMI NARAYANI AGED 43 YEARS, D/O.LATE BHARATHAN PILLAI, SREEVILAS, THAMARAKULAM,KOLLAM`** ``` BY ADV. SRI.LEO GEORGE ``` ## **`RESPONDENTS:`** - **`1 I.MAYA DEVI AGED 70 YEARS, KUMARA BHAVANAM, CONVENT ROAD, KOLLAM-691001`** - **`2 T.RADHAKRISHNAN`** - **`KUMARA BHAVANAM, CONVENT ROAD, KOLLAM-691001`** ## **`3 T.MAHALEKSHMI KUMARA BHAVANAM, CONVENT ROAD, KOLLAM-691001`** ## **`4 J.NALINI KUMARA BHAVANAM, CONVENT ROAD, KOLLAM-691001`** 2 ## R.C.R.No.40 of 2016 ## **`5 T.SIVAKUMAR`** ``` KUMARA BHAVANAM, CONVENT ROAD, KOLLAM-691001 ``` - **`6 PARAMESWARAN BHARATHAN S/O.BHARATHAN PILLAI, SREEVILAS GANAPATHI NAGAR, THAMARAKULAM, KOLLAM-691001`** ## **`7 NARAYANAN BHARATHAN`** - **`SREEVILAS GANAPATHI NAGAR, THAMARAKULAM, KOLLAM-691001`** ## **`8 NARAYANI LEKSHMI SREEVILAS GANAPATHI NAGAR, THAMARAKULAM, KOLLAM-691001`** ``` BY ADVS. SMT.K.G.BINDU ``` ``` SMT.T.S.MAYA THIYADIL ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 04.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING: ``` 3 R.C.R.No.40 of 2016 ## **O R D E R** ## Ajithkumar, J Landlords are the revision petitioners. They filed R.C.P No.37 of 2008 before the Rent Control Court (Principal Munsiff), Kollam seeking eviction of the tenant under Sections 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was allowed under Section 11(3) of the Act. The tenant preferred R.C.A No.8 of 2010 under Section 18(1)(b) of the Act. The Appellate Authority (III[rd] Addl. District Judge), Kollam allowed the appeal resulting in the dismissal of the Rent Control Petition. This revision under Section 20 of the Act was filed by the landlords challenging the said judgment. 2. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondents. 3. Petitioners sought eviction on the ground of bonafide need and subletting. The Rent Control Court rejected the plea for eviction on the ground of subletting and ordered eviction on the ground of bonafide need. The tenant 4 ## R.C.R.No.40 of 2016 alone appealed. Therefore the order dismissing the claim for eviction on the ground of subletting became final. Hence the facts with reference to eviction under Section 11(3) of the Act alone need to be mentioned. 4. The 1[st] petitioner is the owner of the petition schedule shop room. The 2[nd] petitioner who is his dependent wife wants to start a cashew oriented business in the petition schedule shop room. On that ground, eviction of the tenant, who is now no more and whose legal representatives are the respondents, was sought. The tenant resisted the petition contending that the need urged was not bonafide and the 2[nd] petitioner was not a dependent of the 1 petitioner. The benefit of the 2[nd] proviso to Section 11(3) of the Act was also claimed by the tenant. 5. The 2[nd] petitioner was examined as PW1. The original tenant was examined as RW1. Exts.A1 to A8 and B1 to B20 were marked. The Rent Control appreciating the evidence concluded that the need urged by the petitioners was bonafide. The tenant has raised a serious contention that room No.MC 2266 which is on the ground 5 R.C.R.No.40 of 2016 floor of the same building and also a hall in the upstairs portion were lying vacant. The Rent Control Court held that the Special reasons set forth by the petitioner for not occupying the said premises were satisfactory. Also, it was found that the tenant was not entitled to get the benefit of the second proviso to Section 11(3) of the Act, without assigning reasons in detail. Resultantly the Rent Control Court ordered eviction. 6. The order of eviction was assailed before the Appellate Authority. The view taken by the Rent Control Court was not accepted by the Appellate Authority. It was held that the 1[st] petitioner landlord shied away from deposing before the court for no reason, that the evidence tendered by PW1 was insufficient to prove her dependency on the 1[st] petitioner and also the bonafides of the need. It was also held that the reason furnished for non-occupation of room no.2266 and the upstairs hall was insufficient to avoid mischief of the first proviso to section 11(3) of the Act. Accordingly, the Appellate Authority reversed the findings of the Rent Control Court and rejected the claim for eviction. 6 R.C.R.No.40 of 2016 7. There is no evidence to show that the 2[nd] petitioner who was examined as PW1 did have a building or room of her own that is suitable for the need projected by her. She can depend on her husband only for the purpose of getting a room for starting a business. The learned counsel appearing for the petitioners would point out those facts and submit that the second petitioner is proved to be a dependent of the 1[st] petitioner for the purpose of Section 11(3) of the Act. 8. In **Sumathi T.K and others v. Kundantavida Rabia and others [2012(1) KLT 595]** this Court held that the landlord has the right to apply for eviction under 11(3) of the Act either for his own occupation or for the occupation of any member of the family dependent on him. In **Prathapan v. Rama Warrier [2004 (2) KLT 559]** a Division Bench of this Court held that Section 11(3) of the Act uses the expression "any member of his family dependent on him". The word "dependent" is used as an adjective and it literally means, the person who depends on or looks to another for support or favour or for his 7 R.C.R.No.40 of 2016 maintenance or livelihood. Since dependent means depending upon something else, that is, dependent has to satisfy that he is a member of the family. Dependent member must be a member of the landlord's family. With regard to that, two tests have to be satisfied; that he must be a member of the family and consequently that member must be dependent on the landlord and dependency is not financial dependency, but dependency so far as the tenanted premises is concerned. Viewed so PW1 is certainly a dependent of the 1[st] petitioner. 9. The Appellate Authority did not accept the evidence of PW1 in order to find the need to be a genuine one. One reason stated is that the landlord did not mount the box. Of course, having lost his plea for eviction in R.C.P No.45 of 2005, the petitioners have come up with a fresh petition seeking eviction. When petitions are filed in quick succession, the bonafides of the landlords, become shaky. However the evidence on record has to be appreciated independently and if the need urged is real, genuine and honest, filing of a petition for eviction on a different ground 8 R.C.R.No.40 of 2016 would not fail the present claim for eviction. PW1 is the person who requires the room for own occupation. It is evident that room No.2266 became vacant, and the hall upstairs also was available vacant for some period. Therefore an impression is created that keeping the said premises vacant, the petitioners wanted to evict the tenant from the petition schedule shop room. Naturally, explanation is needed from the landlord if he has to get eviction. 10. On going through the entire evidence of PW1, it can be seen that room No.MC 2266 was required for the landlord to use it for some other purpose. She had deposed that cashew testing lab proposed to be started by the 1[st] petitioner, regarding which another R.C.P has been filed, has to be accommodated in that room and its adjoining room. Of course, the oral testimony of PW1 is not very cogent and she often gives unclear answers to the questions put to her. But as regards her need to have the petition schedule shop room for the purpose of starting a cashew related business is definite and convincing. The facts that another Rent Control Petition filed earlier for evicting on another ground was 9 R.C.R.No.40 of 2016 dismissed, the 1[st] petitioner failed to mount the box, etc. are not reasons sufficient to throw overboard the oral testimony of PW1 with respect to the need she had urged. 11. Section 11 of the Act deals with eviction of tenants. 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 10 R.C.R.No.40 of 2016 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. 12. 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 11 R.C.R.No.40 of 2016 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. ## 13. 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 12 R.C.R.No.40 of 2016 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, of course, subject to the first and second provisos to Section 11(3) of the Act. 14. Viewed in the light of the law laid down in the aforesaid decisions the evidence tendered by the petitioners through PW1 sufficiently has proved that they genuinely had put forward the need to have vacant possession of the petition schedule shop room. We are of the view that the finding of the Appellate Court in this regard is incorrect and liable to be reversed. 15. In the objection filed by the original tenant, it was contended that the petitioners and their son have several other vacant rooms suitable for the need they have urged. It has come out in evidence that the rooms they intended as vacant are rooms bearing door no.MC 2266 and the upstairs portion which is a hall. It has come out in evidence that the upstairs hall cannot be used for the proposed business. 13 ## R.C.R.No.40 of 2016 Room No.2266 was not pointed out as vacant in the objection. It is the burden of the tenant to plead and prove the availability of vacant rooms in order to attract the first proviso to Sec 11(3) of the Act. In **Kunhamina K v. V.K.T.Aboobacker Haji [2016 (3) KLJ 247],** held that the primary burden is on the tenant to prove that the landlord is in possession of another building and if it is proved, the burden shifts to the landlord to give special reasons as to why he has not chosen to occupy that building to the satisfaction of the court. In **Kunju T.P v. Fathima and** **others [2014 (3) KLT 563]** this court held that the landlord need not give the particulars of all the premises under his possession to claim an order of eviction under Section 11(3) of the Act. **In Dineshan Pillai P.B v. Joseph @** **Jose [2019(3) KLT 104]** this court took the view that it is obligatory on the part of the tenant to plead and prove the identity of the vacant building in the possession of the landlord. In the absence of specific pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be said that the respondent/tenant has not 14 ## R.C.R.No.40 of 2016 discharged the initial burden of proof under the first proviso to Section 11(3) of the Act. ## 16. In **Lainakalillath Kooliyangal Kamarunnisa** **and others v. A. Shabeer [2019 (4) KLJ 508]** , this court endorsed the said view. However, it was explained that it may be fair and reasonable, though not imperative, for a landlord to disclose in his pleadings specific details of any vacant building in his possession and explain the special reason, as to what prevented him from occupying the building for the purpose of satisfying his alleged bona fide need. ## 17. In **Chethil Tharemmal Rasheeda v.** **Peedikayilakath Muhammad [2021(6) KLT 751]** , this Court took the view that it is the burden of the tenant to prove the availability of vacant rooms with the landlord, and only on such proof, the landlord has the liability to show special reasons if to get an order of eviction. While considering a similar question, this Court in **Kakkottakath Puthiyapurayil Muhammad Ali and others v. Kakkottakath Puthiyarambath Mahamood and others** 15 R.C.R.No.40 of 2016 **[2022(4) KLT 221]** held that the tenant is bound to disclose the identity of vacant building in the possession of the landlord in order for him to pursue his claim for the benefit of the first proviso to Section 11(3) of the Act. 18. This is a case where the respondents did not specifically mention the details of the vacant rooms available with the petitioners. Therefore, there was no burden on the petitioners to furnish special reasons for non-occupying the rooms now shown to be vacant. Nevertheless, PW1 has stated the reasons for non occupying room no.2266 for the need projected in this case. As far as the upstairs portion is concerned, it is a hall being used as a single unit. Such a premises cannot be said to be suitable for the proposed business. In the circumstances, we are of the view that the bar under the first proviso to Section 11(3) of the Act is not attracted in this case. 19. The benefit of the second proviso to Section 11(3) of the Act was claimed by the respondents. The Appellate Authority did not accept that contention by holding that the evidence was insufficient to establish either limb of the 16 R.C.R.No.40 of 2016 second proviso. The original tenant is no more. His legal representatives are in occupation of the premises. There is absolutely no evidence to show that any of the respondents is depending for his livelihood on the income derived from the business in the petition schedule shop room. We find no reason to deviate from the findings of the Appellate Authority in this regard. 20. In the light of the above, we are of the view that judgment of the Appellate Authority dated 30.09.2014 is liable to be set aside. The respondents are liable to be evicted from the petition schedule shop room under Section 11(3) of the Act. This revision is therefore allowed. Consequently, R.C.P No.37 of 2008 is allowed and the respondents are directed to put the petitioners in vacant possession of the petition schedule shop room. 21. Considering the facts and circumstances of the case and the submission of the learned counsel appearing for the respondents to grant a period of atleast six months to surrender vacant possession of the petition schedule shop room, we deem it appropriate to grant six months’ time to surrender vacant 17 R.C.R.No.40 of 2016 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-landlady within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule building 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 18 R.C.R.No.40 of 2016 and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. **Sd/-** **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV