S. UDAYAKUMAR v. SHABNAM ZAKHEER HUSSAIN

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 ``` ## **`RCREV. NO. 37 OF 2024`** ``` AGAINST THE JUDGMENT DATED 31.10.2023 IN RCA 4/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KALPETTA JUDGMENT DATED 24.03.2022 IN RCP 11/2019 OF MUNSIFF MAGISTRATE COURT, KALPETTA ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` S. UDAYAKUMAR AGED 49 YEARS S/O. SHIVARAMAN, KAVUNGAL HOUSE, TWO WHEELER MECHANIC, LEO HOSPITAL ROAD, KALPETTA P.O., KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, PIN - 673121 BY ADV K.RAKESH ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` SHABNAM ZAKHEER HUSSAIN AGED 45 YEARS W/O. ZAKHEER HUSSAIN M.G., CHAKKERIKKADPARAMBA HOUSE, ARAKKINAR P.O., NADUVATTAM VILLAGE, BEYPORE PANCHAYATH, KOZHIKKODE TALUK AND DISTRICT, PIN - 673028 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 RCRev.No.37 of 2024 ## **O R D E R** ## G. Girish, J. The petitioner-tenant in R.C.P.No.11 of 2019 of the Rent Control Court, Kalpetta, has filed this revision petition against the concurrent verdicts of the Rent Control Court, Kalpetta and the Rent Control Appellate Authority, Kalpetta, directing him to hand over vacant possession of the petition schedule shop room to the respondent-landlord, on the ground of bona fide need envisaged under Section 11(3) of the Kerala Buildings (Lease and Rent) Control Act, 1965 (for short ‘the Act’). 2. R.C.P.No.11 of 2019 was filed by the respondent herein, seeking eviction of the petitioner, on the ground of arrears of rent envisaged under Section 11(2)(b) and also under Section 11(3) of the Act, for the bona fide need of her husband to commence pharmacy shop there. In the trial before the Rent Control Court, the respondent-landlord and one witness were examined as PW1 and PW2 and Exts.A1 to A7 were marked as documents from their part. The petitioner-tenant was examined as RW1. The commission report, rough sketch and certain photographs filed by an Advocate Commissioner appointed by the Rent Control Court were marked as Exts.C1, C2 and C3 series respectively. After an evaluation of the above evidence and hearing both sides, the Rent Control Court 3 RCRev.No.37 of 2024 directed the petitioner-tenant to hand over the vacant possession of the petition schedule shop room to the petitioner, on the ground of bona fide need envisaged under Section 11(3) of the Act. However, the prayer for eviction on grounds of arrears of rent envisaged under Section 11(2)(b) of the Act was disallowed. Though the petitionertenant preferred appeal before the Rent Control Appellate Authority, Kalpetta, by filing R.C.A.No.4 of 2022, the order of eviction passed by the Rent Control Court was upheld by the said Authority, as per the judgment rendered on 31.10.2023. Aggrieved by the above concurrent findings of the Rent Control Court and the Rent Control Appellate Authority, the petitioner is here before this Court with this revision. 3. Heard the learned counsel for the revision petitioner. 4. The point to be decided is whether the impugned judgment of the Rent Control Appellate Authority, confirming the order of eviction of the Rent Control Court, Kalpetta is liable to be interfered with. 5. At the time of arguments, it is submitted by the learned counsel for the revision petitioner that the challenge in this revision is confined to the absence of bona fide need, and that the petitionertenant is not claiming the benefits of Provisos (1) and (2) of Section 11(3) of the Act. 4 RCRev.No.37 of 2024 6. As already stated above, the petition schedule shop room was sought to be evicted for the bona fide need of the respondent-landlord to accommodate her husband, who wanted to conduct a pharmacy shop there. The respondent-landlord as well as her husband tendered oral evidence before the Rent Control Court as PW1 and PW2 in support of the above need projected by the petitioner in the Rent Control Petition. The evidence adduced by the respondent-landlord in the above regard has been analysed in detail in the judgments of the Rent Control Court and the Rent Control Appellate Authority. There is absolutely no reason which the petitioner could point out to eschew the above evidence adduced by the respondent-landlord before the above Authorities. 7. 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 5 RCRev.No.37 of 2024 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 **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, and held that the question as to whether a particular need is bona fide or not has to be judged by the Court, placing itself in the position of landlord. ## 9. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is the 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. ## 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 6 RCRev.No.37 of 2024 (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. In **Aboobacker.C.P v. K.T.Sreelatha Nambiar [2022** **KHC 5100]** also, a Division Bench of this Court in which one among us, (Anil K. Narendran, J.) was a party, has held that once, on the basis of 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 the said Act. 7 RCRev.No.37 of 2024 12. As already stated above, the evidence adduced by the respondent-landlord before the Rent Control Court about the bona fide need of the landlord to have possession of the petition schedule shop room, does not suffer from any infirmity or anomaly. Thus, in view of the settled position of law, as laid down in the aforesaid decisions, there is absolutely no scope for interference with the impugned judgment of the Rent Control Appellate Authority, Kalpetta, which confirmed the order of eviction passed by the Rent Control Court, Kalpetta. 13. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting four months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlord, subject to the following conditions: - (i) The petitioner-tenant 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 he will surrender vacant possession of the petition schedule shop room to the respondent-landlord within four months from the date of this order and that, he shall not induct third parties into 8 RCRev.No.37 of 2024 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 petitioner-tenant 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 month, without any default; - (iii) Needless to say, in the event of the petitioner-tenant 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 respondent-landlord will be at liberty to proceed with the execution of the order of eviction. ## (sd/-) **G. GIRISH, JUDGE** jsr/vgd