Sahida v. Ravi Mestri

## **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 6[TH] DAY OF APRIL 2022 / 16TH CHAITHRA, 1944** **RCREV. NO. 224 OF 2016** **AGAINST THE JUDGMENT PASSED BY THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VATAKARA IN RENT CONTROL APPEAL NO.05 OF 2014 DATED 12.02.2016 FILED AGAINST THE ORDER PASSED BY THE RENT CONTROL COURT (MUNSIFF), VATAKARA IN R.C.P.NO.42 OF 2013 DATED 04.12.2013** ## **REVISION PETITIONER:** **SAHIDA AGED 44 YEARS D/O.IBRAHIM HAJI, EDAKOZHINHIYIL HOUSE, KUNNUMMAKKARA AMSOM, DESOM,KUNNUMMAKKARA(P.O), VADAKARA TALUK,KOZHIKODE DISTRICT. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.M.P. PRASANTH** **RESPONDENT:** **RAVI MESTRI @ RAVI AGED 55 YEARS S/O.KANARAN, PALAKOOL MEETHAL,REMYATHA NIVAS, KOROTH ROAD (P.O),AZHIYUR AMSOM, DESOM, VADAKARA TALUK,KOZHIKODE DISTRICT, PIN-673 309. BY ADV SRI.SHARAN SHAHIER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 RCR No.224 of 2016 ## **O R D E R** ## Ajithkumar, J This Rent Control Revision under Section 20 of the Kerala Buildings (Lease and Rent Control Act), 1965 was filed by the landlady. She filed R.C.P.No.42 of 2013 in Rent Control Court (Munsiff), Vatakara seeking eviction of the respondent-tenant from the petition schedule shop room under Section 11(2)(b) and 11(3) of the Act. The Rent Control Court dismissed the Rent Control Petition. The petitioner preferred an appeal under 18(1) (b) of the Act as R.C.A.No.05 of 2014 before the Rent Control Appellate Authority (Addl. District Judge), Vatakara which was dismissed. Feeling aggrieved thereof, this revision was filed. 2. On 19.07.2016, this revision was admitted and notice was ordered to be sent to the respondent. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 4. The Rent Control Petition was filed seeking eviction on the grounds that respondent defaulted payment of rent at the rate of Rs.850/- per month since 31.03.2011 and that the petitioner was in need of the petition schedule shop room for her to start a 3 RCR No.224 of 2016 tailoring shop. Respondent resisted the R.C.P contending that solely because he was unaware of the purchase of the petition schedule shop room by the petitioner, rent was not paid to her. But he already deposited the entire rent in arrears before the Court. The need urged by the petitioner was not bonafide, inasmuch as she does not have any experience in tailoring, her husband has been abroad for years together and, therefore she does not want to start such a business. The respondent also contended that the landlady has other rooms in her possession, whereas the respondent who is depending for his livelihood on the income derived from the business being conducted in the petition schedule shop room and no other suitable building or room is available in the locality to shift his business. 5. The Rent Control Court recorded oral testimonies of PW1 and RW1. Exts.A1, A2, B1 to B3 and C1 were received in evidence. The Rent Control Court after appreciating the said evidence found that the need urged by the respondent was not bonafide. The first proviso was found in favour of the petitioner but the second proviso was answered in favour of the respondent. Resultantly the plea for eviction was declined. As regards eviction 4 RCR No.224 of 2016 sought on the ground of arrears of rent, no enquiry was required for, the respondent had already deposited the arrears of rent. 6. The challenge of the petitioner to the order of the Rent Control Court before the Appellate Authority was successful in part only. After re-appreciating evidence, the Appellate Authority held that, in the light of the convincing testimony of PW1 and the attending circumstances, the need urged by the petitioner was bonafide. Non-availability of other vacant rooms with the petitioner, both the Authorities concurrently found in her favour. The Appellate Authority concurred with the findings of the Rent Control Court in respect of the second proviso to Section 11(3) of the Act. 7. 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 5 RCR No.224 of 2016 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 suitable building available in the locality for such person to carry on such trade or business. 8. 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 6 RCR No.224 of 2016 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. 9. 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 7 RCR No.224 of 2016 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. 10. PW1 deposed that she is well versed in tailoring and she wanted to start a tailoring unit in the petitioner schedule shop room. Challenge to her evidence on the ground that she was very rich having no need to start a business of her own and she is inexperienced are considered in detail by the Appellate Authority in the light of the relevant precedents and found that the need urged was bonafide. We have gone through the entire evidence. The said finding rendered by the Appellate Authority is supported by sufficient evidence. We are of the view that the said finding cannot be said to be perverse in any way. Therefore, there is no reason 8 RCR No.224 of 2016 for us to interfere with that finding in exercise of the powers of this Court under section 20 of the Act. 11. It was contended by the respondent that two rooms in the upstairs of the building in question were constructed by the petitioner and the same can be used for her projected need. From Ext.C1 report and other evidence on record it is seen that the said upstairs rooms were under construction only. Therefore it cannot be said that any other vacant room suitable for the projected need of the petitioner is available with her. It follows that the respondent cannot claim the benefit of the first proviso of Section 11(3) of the Act. 12. The learned counsel appearing for the petitioner would submit that there is total dearth of evidence to prove the ingredients of the second proviso to Section 11(3) of the Act, but the authorities below in total misunderstanding of the evidence, answered the point against the petitioner. Respondent earlier was a contractor and a few implements required for his contract work were used to be kept there. No other activity was being carried on in the petition schedule room. Of late, the respondent stopped the said activities even resulting in non occupation of the premises. 9 RCR No.224 of 2016 Even in spite of that, the authorities below did not accept the case of the petitioner. 13. 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. 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. 14. The respondent as RW1 deposed that not only the implements and materials required for his contract work are kept in the room but also his office is functioning there. He asserted that without that room, he would not be able to carry out his contract business. Except his oral testimony, no other evidence in that regard is available. Being a contractor, there must be records 10 RCR No.224 of 2016 regarding his contract works. He did not produce any such document. If it is a petty business, it may be said that the possible evidence regarding the income would be the oral testimony of the tenant. RW1 admittedly is a contractor. When he did not produce any document to prove his income, his oral testimony alone cannot be based on to find that his sole source of income is the contract business. In the light of the contention of the petitioner that the respondent is now not in occupation of the room, his burden has become more onerous. Even accepting that he is in occupation of the petition schedule shop room and is required for his contract business, he did not succeed in proving the first limb of second proviso to Section 11(3) of the Act. 15. The Commissioner, vide Ext.C1 pointed out one room lying vacant in the locality. Of course PW1 deposed that several rooms are lying vacant in the locality. The courts below rendered a finding that evidence was insufficient to prove availability of any vacant room in the locality. 16. As regards the room pointed out by the Commissioner as available in the locality, RW1 deposed that it really is not available. The Commissioner did not enquire about availability of 11 RCR No.224 of 2016 rooms in the locality; he enquired only in the vicinity of the petition schedule shop room. There is another junction about 500 meters away, where no enquiry was conducted by the Commissioner. When it is the absolute burden of tenant to prove non availability of alternative buildings, denial of RW1 that the one room pointed out by the Commissioner is not available on rent is insufficient to discharge that burden. Failure of the respondent to bring in any independent evidence with respect to the non availability of other rooms in the locality inevitably fails his case. In the circumstances, we find that the view taken by the courts below with respect to the second limb of the second proviso to Section 11(3) of the Act is not sustainable. We therefore reverse that finding and hold that the respondent is not entitled to get the benefit of the second proviso to Section 11(3) of the Act. 17. In the said circumstances, we hold that the order of the Rent Control Court and judgment of the Appellate Authority declining the plea for eviction are liable to be set aside. Hence we allow this revision and on setting aside the order dated 04.12.2013 in R.C.P.No.42 of 2013 and the judgment dated 12.02.2016 in R.C.A.No.05 of 2014 of the Appellate Authority, 12 RCR No.224 of 2016 R.C.P.No.42 of 2013 is allowed. 18. The learned counsel appearing for the respondent submitted that at least nine months may be granted for surrendering of the petition schedule shop room to the petitioner. The petitioner conceded to grant three months. 19. After taking into account all the circumstances, we deem it appropriate that seven months' time can be granted to the respondent to surrender vacant possession of the petition schedule shop room, subject to the following conditions: (i) The respondent-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 petitioner-landlady within seven months from the date of this order and that, he 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; 13 RCR No.224 of 2016 - (ii) The respondent-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 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 respondent-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 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