R.C.Rev.Nos.131 & 132 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 WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 R.C.REV.NO. 131 OF 2019** **AGAINST THE JUDGMENT DATED 31.01.2018 IN R.C.A.NO.195 OF 2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THALASSERY AND THE ORDER DATED 31.10.2014 IN R.C.P.NO.3 OF 1999 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** ## **ARYADEVI ANDARJANAM** **AGED 69 YEARS, D/O.MADHAVAN NAMBOODIRI, CW 30/1581, J.S.PAUL CORNER, KANNUR-670001.** **BY ADVS. K.BABU SRI.SHAJI THOMAS SRI.JEN JAISON** ## **RESPONDENT:** **K.M.ABDUL NAJEEB AGED 32 YEARS, S/O.THAREEKUTTY HAJI, BUSINESS, THAMANNA MANZIL, P.O.,KOODALI, KANNUR DISTRICT, PIN-670592.** **BY ADV SRI.ALEX.M.SCARIA** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 05.07.2022, ALONG WITH R.C.Rev.NO.132/2019, THE COURT ON 20.07.2022 DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.Nos.131 & 132 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** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 R.C.REV. NO. 132 OF 2019 AGAINST THE JUDGMENT DATED 31.01.2018 IN R.C.A.NO.201 OF 2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THALASSERY AND THE ORDER DATED 31.10.2014 IN R.C.P.NO.5 OF 1999 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONERS:** - **1 T.C.NOUSHAD, AGED 64 YEARS, S/O.EBRAHIMKUTTY,** - **2 T.C.SHAHIDA, AGED 62 YEARS, D/O.EBRAHIMKUTTY,** - **3 T.C.SHAMEEMA, AGED 56 YEARS, D/O.EBRAHIMKUTTY,** - **4 T.C.SHEENA, AGED 52 YEARS, D/O.EBRAHIMKUTTY,** - **5 T.C.SHEEBA, AGED 48 YEARS, D/O.EBRAHIMKUTTY,** - **6 T.C.SAJITH, AGED 41 YEARS, D/O.EBRAHIMKUTTY, ALL ARE RESIDING AT EBASAI, MUZHATHADAM, KANNUR - 670 002.** - **BY ADVS. K.BABU SRI.SHAJI THOMAS** 3 R.C.Rev.Nos.131 & 132 of 2019 ## **SRI.JEN JAISON** **RESPONDENT:** **K.M.ABDUL NAJEEB, S/O.THAREKUTTY HAJI, AGED 42 YEARS, BUSINESS, THAMANNA MANZIL, P.O.KOODALI, KANNUR DISTRICT, PIN - 670 592.** **BY ADV SRI.ALEX.M.SCARIA** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 05.07.2022, ALONG WITH R.C.Rev.NO.131/2019, THE COURT ON 20.07.2022 DELIVERED THE FOLLOWING:** 4 R.C.Rev.Nos.131 & 132 of 2019 ## **O R D E R** ## Ajithkumar, J. The tenants are the revision petitioners. They filed the Revision Petitions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the judgments dated 31.01.2018 of the Rent Control Appellate Authority (Additional District Judge-III), Thalassery in R.C.A.Nos.195 and 201 of 2014. As per the said judgments, the Appellate Authority confirmed the orders of eviction granted by the Rent Control Control (Principal Munsiff), Kannur, in favour of the respondent-landlord under Section 11(3) of the Act. 2. Rent control petitions were filed by the respondent contending that he is about to complete his education and he wants to start a business in home appliances in the petition schedule shop rooms, after carrying out necessary repairs and renovation to the rooms. The petitioners in the respective rent control petitions raised similar objections. They contended that the building to which the petition schedule shop rooms 5 R.C.Rev.Nos.131 & 132 of 2019 form part is very old and small in size. It is totally unsuitable to start a business as proposed by the respondent. His father has many multi-storied buildings; even the adjacent one, where so many rooms are lying vacant. His father had earlier filed petitions for evicting the petitioners on the ground that the petition schedule shop rooms need reconstruction. But that claim was declined. Thereafter, the property was assigned in favour of the respondent by his father as per a sham document and with the aid of such a document he is now trying to evict the petitioners. When several convenient rooms are available with his father, the need urged by the respondent lacks bona fides. The benefit of the second proviso to Section 11(3) of the Act has been claimed by both the petitioners. 3. The Rent Control Court tried the petitions jointly and after considering the evidence, dismissed the petitions holding that Ext.A6, the assignment deed executed in favour of the respondent by his father was a sham one, and therefore, the need urged by him was not bona fide. The 6 R.C.Rev.Nos.131 & 132 of 2019 respondent took up the matter before the Appellate Authority. The appeals were dismissed. The respondent filed R.C.Rev.Nos.202 and 205 of 2012 before this Court. The revision petitions were allowed as per the order dated 08.11.2013. The matter was remanded to the Rent Control Court to consider the matter afresh. 4. The Rent Control Court accordingly tried the matter again. After hearing both sides, the Rent Control Court as per the order dated 31.10.2014 allowed the rent control petitions ordering eviction under Section 11(3) of the Act. The petitioners were directed to surrender vacant possession of the petition schedule shop rooms within a period of one month from the date of that order. R.C.A.Nos.195 and 201 of 2014 were the appeals preferred by the respective petitioners. The Appellate Authority (Additional District Judge-III), Thalassery, considered the entire matter in detail. The evidence was marshalled and re-appreciated. After such elaborate consideration, the Appellate Authority confirmed the findings of the Rent Control Court and the appeals were dismissed. 7 R.C.Rev.Nos.131 & 132 of 2019 5. On 01.04.2019, notice was ordered to be served on the respondent. On 10.06.2019, the orders of eviction were stayed for a period of ten days. On 15.07.2019, the revision petitions were admitted to file. The order of interim stay was extended from time to time and is still in force. 6. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondent. 7. The petitioner in R.C.Rev.No.131 of 2019 is conducting a business in pooja articles in the petition schedule shop room. The petitioners in R.C.Rev.No.132 of 2019 are conducting a photo-framing shop in the petition schedule shop room. Both rooms together constitute the building. It originally belonged to the father of the respondent. He had filed R.C.P.Nos.42 and 43 of 1981 against the respective tenants in the petition schedule shop rooms seeking their eviction on the ground that the building required reconstruction. It was contended that the building was old and the respondent's father bona fide intended to reconstruct the 8 R.C.Rev.Nos.131 & 132 of 2019 same. The then Rent Control Revisional Authority (District Judge), Thalassery, as per the order dated 30.10.1989 in the RCRP Nos.9 and 17 of 1988 disallowed that plea by reversing the orders of the Appellate Authority. 8. After about 9 years of that Ext. A6 was executed by the father in favour of the respondent. It was on 07.10.1997. The respondent on the strength of Ext.A6 filed the present rent control petitions claiming that he wants the petition schedule shop rooms to start a business in home appliances. Pointing out the said circumstances, the learned counsel for the petitioners would contend that the very genesis of Ext.A6 is doubtful and it amounts to a sham document. Therefore, it is contended that the respondent is not entitled to claim eviction of the petitioners on the strength of Ext.A6. Moreover, such a nature of the respondent's claim of the title makes the very need doubtful. 9. The learned counsel would contend that the Rent Control Court as well as the Appellate Authority in the earlier round of litigation, found that Ext.A6 was a sham document 9 R.C.Rev.Nos.131 & 132 of 2019 and while the matter was remanded by this Court as per order dated 08.11.2013 in R.C.Rev.Nos.202 and 205 of 2012, the said finding was not interfered with, and therefore, the said question still is relevant. The learned counsel for the petitioners by placing reliance on the decisions in **Devi Das v.** **Mohan Lal [AIR 1982 SC 1213]** and **Joseph v. George Ittoop [2002 KHC 899]** contended that the sham nature of Ext.A6 is a relevant consideration for deciding the bona fides of the landlord. Of course, in **Devi Das** (supra) the Apex Court observed that the contention of the tenant that the sale deed based on which the landlord claimed title to the tenanted premises was only a paper transaction, is liable to be looked into by the court while deciding the claim for eviction. Following the said decision, this Court in **Joseph** (supra) held that the Rent Control Court is expected to consider the allegation raised by the tenant that the title deed of the landlord is a sham document. 10. This question was considered by a three-Judge Bench of the Apex Court in **V.M.Salim v. Fathima** 10 R.C.Rev.Nos.131 & 132 of 2019 **Muhammed and others [(2011) 15 SCC 756]** . The contention of the respondent therein was that since the erstwhile owner could not evict the respondents, he is having other buildings in the city, the shop was shown as sold to the appellant, who did not own any other building, under a sham document, so as to evict the respondents, for the benefit of the previous owner. The Apex Court considered the matter in detail and also the principle followed in **Devi Das** (supra). It was thereafter held,- “8. xx xx But the very circumstances mentioned by the respondents to contend that the transaction is sham, can actually be valid reasons for an owner to sell the premises. If the rental income from a property is very low, and the owner is not in a position either to get vacant possession or increase the rents, he may out of frustration or absence of an alternative, decide to dispose of such property at whatever price it may fetch, and use the sale price for some other useful purpose. Therefore, if an owner sells a property for a modest price as in this case, on account of the meagre returns therefrom and inability to either evict the tenant or increase the income therefrom, that by itself cannot lead to a presumption that the sale transaction is sham.” 11 R.C.Rev.Nos.131 & 132 of 2019 11. The same is the situation in this case as well. The efforts taken by the father of the respondent to reconstruct the building failed. The definite contention of the petitioners, who resisted the plea regarding reconstruction, now is that the building is very old and small. When the attempt of the landlord was not successful, he thought of assigning the same in favour of his son. That transfer was in the year 1997, after about nine years of finally disallowing his plea for reconstruction. In the said circumstances, it cannot be said that the only purpose behind execution of Ext.A6 was to see that the petitioners are somehow evicted. It may say that the father of the respondent tried to make use of his property within the legally allowed parameters for which he has transferred it in favour of his son. Now, the son, the respondent, who does not have any avocation of his own, has filed the present rent control petitions. We are of the view that it is not available for the petitioners to contend that Ext.A6 is a sham document, and therefore, the respondent is not entitled to claim their eviction. 12 R.C.Rev.Nos.131 & 132 of 2019 12. The learned counsel for the petitioners strenuously contended that the petition schedule shop rooms are old and dilapidated, and therefore, proposed business is not possible there. It is his contention that the respondent's father took the stand that the building was dilapidated requiring reconstruction and as such the respondent cannot turn around and say that such a building has to be put to use for his business. As pointed out above, the contentions of the respondent's father that the building was old and required reconstruction were turned down by the court. It was by accepting the contentions of the petitioners that the building was sufficiently strong and no reconstruction was required. When that contention was accepted by the Revisional Authority in RCRP Nos.9 and 17 of 1988, the said findings now estops the petitioners from contending that the building is old and dilapidated. Such a contention cannot be set up by the petitioners to dislodge that respondent's claim for eviction on the ground of bona fide need, especially when they are successfully conducting business there all throughout these years. 13 R.C.Rev.Nos.131 & 132 of 2019 13. The essential question to be decided is whether the need urged by the respondent is bona fide, taking into account the condition of the building and also the availability of other buildings with his father. Even if a few buildings are available with the father of the respondent, that does not come within the mischief to the first proviso to Section 11(3) of the Act. Of course, if the respondent, despite the availability of such shop rooms, claims eviction of the petitioners, that may tell upon his bona fides. In order to prove such a fact, there must be convincing evidence. The petitioners did not bring on record any evidence to show that the father of the respondent is in possession of vacant rooms which can be used to start the business proposed by the respondent, and also that his father has been ready and willing to provide such rooms to the respondent. In the absence of any such evidence, the fact that his father has a few buildings of his own is not a factor affecting the bona fides of the respondent. 14 R.C.Rev.Nos.131 & 132 of 2019 14. From the successive commission reports, Exts.C1, C3 and C6, the condition of the petition schedule premises is ascertainable. It is a structure with a roof paved with sheets. The Commissioner, PW2, who filed Ext.C6 and PW3, the Engineer, who prepared Exts.C4 and C5 plans, were examined in court in order to ascertain the possibility of repair and renovation of the building. It is true that in the present condition, the rooms cannot be used to conduct business in home appliances. In order to conduct such a business, more modern facilities and safety are admittedly required. The case of the respondent is that the petition schedule shop rooms are to be formed into a single unit and provided with a total facelift by carrying out repairs and renovation. PW1, the respondent, deposed that he proposes to change the roof and provide all required facilities keeping the structure as such. PW3 gave alternative proposals; one by renovating the building by keeping the structure as such, but by changing the roof with different materials and the necessary refurbishing. The second proposal is by raising the height of the roof to 3.7 15 R.C.Rev.Nos.131 & 132 of 2019 metres and totally replacing the materials, including the roof. The second proposal undoubtedly requires permission from the local authority as insisted in Rule 10(vii) of the Kerala Municipality Building Rules, 1999. In order to carry out the renovation and refurbishment as per the first proposal, PW3 stated in Ext.C4, no such permission is required. 15. The learned counsel appearing for the petitioners tried to contend that carrying out of the renovation as mentioned in Ext.C4, is not what is intended by the respondent, and therefore, the building cannot be utilised for the purpose he has now proposed. PW3 stated that it may not be possible to get permission practically for the reconstruction of the building as proposed in Ext.C5 plan. But, PW1, was categoric during the examination that he wanted to carry out the repairs and renovation as suggested in Ext.C4. When that is the requirement put forward by the respondent, it cannot be said that the respondent will not be able to put the petition schedule shop rooms to use as he proposed. 16 R.C.Rev.Nos.131 & 132 of 2019 16. 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 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 17 R.C.Rev.Nos.131 & 132 of 2019 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. 17. 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** 18 R.C.Rev.Nos.131 & 132 of 2019 **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. 18. 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 19 R.C.Rev.Nos.131 & 132 of 2019 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. 19. Whether the need urged by the respondent is honest or sincere has to be adjudged in the light of the principle laid down in the aforesaid decisions. PW1 is a graduate. He categorically stated that he wanted to start a business in home appliances. He has his own building, the petition schedule shop rooms. There is nothing on record to show that vacant rooms are available with his father and he is prepared to provide for the use of PW1. In such circumstances, desire of PW1 to start his business in the petition schedule premises after carrying out necessary repairs and renovations, cannot be said to be urged without any honesty or sincerity. It is established by the respondent that the repairs and renovations as suggested in Ext.C4 plan can be carried out even without any statutory permission and 20 R.C.Rev.Nos.131 & 132 of 2019 by such repairs and renovations the building can be made suitable to conduct the business in home appliances. In such circumstances, the findings entered into by the authorities below, after appreciating the evidence on record in great detail, cannot be interfered with by this Court, in the exercise of the jurisdiction under Section 20 of the Act. 20. The petitioners have no plea under the first proviso to Section 11(3) of the Act. A plea was raised by petitioners in both cases that they are entitled to get the benefit of the second proviso. But they did not adduce any worthwhile evidence to prove that contention. Hence, we hold that the provisos to Section 11(3) of the Act have no application in these cases. ## 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 21 R.C.Rev.Nos.131 & 132 of 2019 re-appreciated 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 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** 22 R.C.Rev.Nos.131 & 132 of 2019 **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 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. 23 R.C.Rev.Nos.131 & 132 of 2019 24. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence, these Revision Petitions fail. We, accordingly, dismiss R.C.Rev.Nos.131 and 132 of 2019. 25. At the time of pronouncement of this Order, the learned counsel for the petitioners has made a request to afford six month's time for vacating the shop rooms pointing out the difficulty in finding out another room and making necessary arrangements for shifting the business. 26. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop rooms, 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 24 R.C.Rev.Nos.131 & 132 of 2019 surrender vacant possession of the petition schedule shop rooms to the petitioner-landlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms 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 rooms 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