R.C.Rev.No.75 of 2022: M.K. Majosh, M.K. Manoj, M.K. Mangala, M.K. Mruthulal, M.K. Manav, M.K. Manjula, M.K. Madhup v. K.E. Najla and M.K. Mahesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 R.C.REV.NO. 75 OF 2022 AGAINST THE JUDGMENT DATED 29.02.2020 IN R.C.A.NO.109 OF 2013 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERY AND THE ORDER DATED 30.05.2013 IN R.C.P.NO.165 OF 2012 OF RENT CONTROL COURT (PRINCIPAL MUNSIFF),KANNUR** ## **REVISION PETITIONERS:** - **1 M.K. MAJOSH AGED 54 YEARS, SON OF LATE KUMARAN, NEW KUMAR SWEETS, P.O.CHALAD, KANNUR, PIN – 670014.** - **2 M.K. MANOJ, AGED 59 YEARS, SON OF LATE KUMARAN, NEW KUMAR SWEETS, P.O. CHALAD, KANNUR, PIN – 670014.** - **3 M.K. MANGALA, AGED 46 YEARS, DAUGHTER OF LATE KUMARAN, NEW KUMAR SWEETS, P.O. CHALAD, KANNUR, PIN – 670014.** - **4 M.K. MRUTHULAL AGED 45 YEARS, SON OF LATE KUMARAN, NEW KUMAR SWEETS, P.O. CHALAD, KANNUR, PIN – 670014.** - **5 M.K. MANAV AGED 39 YEARS, SON OF LATE KUMARAN, NEW KUMAR SWEETS, P.O. CHALAD, KANNUR, PIN – 670014.** 2 R.C.Rev.No.75 of 2022 - **6 M.K. MANJULA AGED 52 YEARS, DAUGHTER OF LATE KUMARAN, NEW KUMAR SWEETS,** **P.O.CHALAD, KANNUR, PIN – 670014.** - **7 M.K. MADHUP AGED 50 YEARS, SON OF LATE KUMARAN, NEW KUMAR SWEETS, P.O. CHALAD, KANNUR, PIN – 670014. BY ADV P.K.RAVISANKAR** ## **RESPONDENTS:** - **1 K.E. NAJLA DAUGHTER OF MOOSAN.K.P,AGED 31 YEARS, KEMFAJ, P.O. CHALAD, KANNUR, PIN – 670014.** - **2 M.K. MAHESH, AGED 54 YEARS, SON OF LATE KUMARAN, NEW KUMAR SWEETS, P.O. CHALAD, KANNUR, PIN – 670014.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.75 of 2022 ## **O R D E R** ## Ajithkumar, J. The 1[st] respondent-landlord filed R.C.P.No.165 of 2012 seeking eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 of the petitioners and the 2[nd] respondent, who are the tenants from the petition schedule building. The Rent Control Court (Principal Munsiff), Kannur, allowed the petition under Section 11(3) of the Act. The prayer for eviction under Section 11(2)(b) of the Act was rejected. An appeal was preferred under Section 18(1)(b) of the Act challenging order of eviction. The Rent Control Appellate Authority (Additional District Judge-IV), Thalassery, dismissed the appeal. Hence, the petitioners came up with this revision under Section 20 of the Act. 2. Today, when the matter came up for admission, we heard the learned counsel appearing for the petitioners in detail. 3. The petition for eviction was filed contending that 4 R.C.Rev.No.75 of 2022 the petitioners defaulted payment of rent since February 2011 and that the 1[st] respondent-landlady needs the building for the purpose of starting a ready-made dress stitching business. The petitioners resisted the prayer for eviction contending that there was no rent arrears and that the need urged by the 1[st] respondent was not bona fide. It was contended that earlier the predecessor-in-interest of the 1st respondent filed a Rent Control Petition stating bona fide need, but it was dismissed. Thereafter, a sham document was executed in favour of the 1[st] respondent and on the basis of that right, eviction was claimed and the objective was only to evict the petitioners somehow. The 1[st] respondent has no intention to start the business as proposed. The petitioners also raised contentions based on the first and second provisos to Section 11(3) of the Act. 4. PW1 and RW1 were examined and Exts.A1 to A4 and B1 to B3 were received in evidence before the Rent Control Court. The contentions raised by the petitioners that the 1[st] respondent being an ostensible owner has no right to 5 R.C.Rev.No.75 of 2022 seek eviction and that the eviction petition filed by the previous owner was unsuccessful shows the mala fides behind filing of the present petition, were turned down by the Rent Control Court. Further, it was found that the need urged by the 1[st] respondent was bona fide, she was not in possession of any other building and that the petitioners did not succeed in proving the requirements of the second proviso to Section 11(3) of the Act. The order of eviction thereby passed by the Rent Control Court was assailed before the Appellate Authority. The Appellate Authority considered the matter in detail and after a re-appreciation of evidence confirmed the findings of the Rent Control Court. Now, the petitioners would contend that the said concurrent findings are unsustainable in law and against facts. 5. The learned counsel appearing for the petitioners would contend that immediately after execution of Ext.A1 in favour of the 1[st] respondent, she initiated eviction proceedings, which alone is enough to show the mala fides on her part. Ext.B2 is a copy of the order in R.C.P.No.194 of 6 R.C.Rev.No.75 of 2022 1997, which was filed by the predecessor-in-interest of the 1[st] respondent. It is seen that the said R.C.P. was dismissed for default. PW1, the 1[st] respondent, explained the circumstances of dismissing the said petition. Much before the execution of Ext.A1 such a rent control proceedings was initiated by the executant of the document. That was abandoned by the previous owner. That does not mean that the need urged by the 1[st] respondent is false altogether. The genuineness or not of the need has to be considered in the light of the evidence in this case. 6. 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 7 R.C.Rev.No.75 of 2022 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. 7. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated the principle laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** that a bona fide requirement must be an outcome of a sincere and 8 R.C.Rev.No.75 of 2022 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 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. 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 9 R.C.Rev.No.75 of 2022 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, 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. 9. PW1 deposed that she remains jobless and wants to start a ready-made garment stitching centre. Although she was seriously cross-examined, nothing has been brought out 10 R.C.Rev.No.75 of 2022 to doubt her credibility. In the said circumstances, it can only be found that the need urged by the 1st respondent is bona fide. There is nothing on record to doubt her honesty or sincerity in the need projected by her. Therefore, we hold that the findings rendered by the courts below that out of an honest and genuine desire, the 1[st] respondent approached the court below with a prayer for eviction on the ground of bona fide need, cannot be interfered with by this Court in the exercise of its revisional jurisdiction under Section 20 of the Act. 10. A contention that the 1[st] respondent has other buildings of her own was raised by the petitioners ritualistically. No details of any such building, nor any evidence in that regard was brought in. In the said circumstances, the said contention can only be found against. It was contended that the petitioners have been depending for their livelihood solely on the income derived from the bakery business being conducted in the petition schedule shop room. When evidence was let, the stand 11 R.C.Rev.No.75 of 2022 taken was that the 5th petitioner, Sri.M.K.Manav, who is a handicapped person, is holding the licence of the bakery business and the income therefrom is the sole source of his livelihood. RW1, the 1st petitioner, deposed in such terms and produced Ext.B3 in that regard. But no documentary evidence with respect to the income derived from the bakery business is produced. When the case set forth by the petitioners on the point is not very specific and the evidence adduced is totally insufficient, it is unable to accept that claim. Needless to say that it is the absolute burden of the tenants to prove both limbs of the second proviso to Section 11(3) of the Act. When evidence regarding dependency on the income from the bakery business in the petition schedule building for livelihood is of such a nature, there is no worthwhile evidence with reference to the second limb of the second proviso. In the said circumstances, the concurrent findings of the courts below cannot be found fault with. It was held that the petitioners are not entitled to get the benefit of the second 12 R.C.Rev.No.75 of 2022 proviso to Section 11(3) of the Act. We do not find any reason to interfere with that finding. 11. Having considered the entire matter in detail, we hold that this revision can only fail and hence we dismiss it. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr