Sahida v. V.C. Purushu

## **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 22[ND] DAY OF APRIL 2022 / 2ND VAISAKHA, 1944** **R.C.REV.NO.223 OF 2016** **AGAINST THE JUDGMENT PASSED BY THE RENT CONTROL APPELLATE AUTHORITY(ADDITIONAL DISTRICT JUDGE), VATAKARA IN RENT CONTROL APPEAL NO.6 OF 2014 DATED 12.02.2016 FILED AGAINST THE ORDER PASSED BY THE RENT CONTROL COURT(MUNSIFF), VATAKARA IN R.C.P.NO.43 OF 2013 DATED 04.12.2013** **REVISION PETITIONER:** **SAHIDA AGED 44 YEARS D/O.IBRAHIM HAJI, EDAKOZHINHIYIL HOUSE, KUNNUMMAKKARA AMSOM, DESOM, KUNNMMAKKARA P.O., VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT:** **V.C.PURUSHU AGED 54 YEARS S/O.NANU, RESIDING AT VELLACHALAI, NEAR KUNHIPALLY RAILWAY GATE, KUNHIPPALLY AMSOM, DESOM, CHOMBALA (P.O), VADAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 308.** **BY ADV. U.K.DEVIDAS** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 29.03.2022, THE COURT ON 22.04.2022 DELIVERED THE FOLLOWING:** 2 RCR No.223 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.43 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.06 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 served on 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 has defaulted payment of rent at the rate of Rs.900/- per month since 31.03.2011 and that the petitioner was in need of the petition schedule shop room, for her 3 RCR No.223 of 2016 daughter Irfana who is pursuing degree in B.Pharm to start a retail medical shop. Ms.Irfana is a dependent of the petitioner and neither of them has in her possession any other building or room suitable for that purpose. The respondent resisted the rent control petition 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 is not bonafide. The respondent also contended that landlady has other rooms in her possession, whereas the respondent who is depending for his livelihood on the income derived from the grocery 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 PWs 1 and 2 and RW1. Exts.A1 to A3, B1, B2, C1 and C1(a) were received in evidence. The Rent Control Court after appreciating the said evidence found that the need urged by the petitioner was bonafide and PW2, Irfana is a dependent of PW1, the petitioner. The Rent Control Court also found that the petitioner is not in 4 RCR No.223 of 2016 possession of any building or room which can be suitably used for the projeccted need. However, the second provisos was answered in favour of the respondent. Resultantly, the plea for eviction was declined. As regards eviction sought on the ground of arrears of rent, no enquiry was required for, the respondent had already deposited the arrears of rent and PW1, the petitioner admitted that she had no further grievance that there is 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. Regarding the non-availability of other vacant rooms with the petitioner the Appellate Authority took the view that there is no evidence to hold the point in favour of the respondenttenant. The Appellate Authority also had concurred with the finding of the Rent Control Court in respect of the first limb of the second proviso to Section 11(3) of the Act, that the respondent is depending for his livelihood solely on the income derived from the business in the petition schedule shop room, although did not 5 RCR No.223 of 2016 agree with the finding as regards the second limb. The eventual finding was dismissal of the petition for eviction. 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 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 6 RCR No.223 of 2016 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 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 7 RCR No.223 of 2016 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 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. 8 RCR No.223 of 2016 10. PW1 deposed that her daughter Irfana, who is PW2, completed B.Pharm and she wanted to start a medical shop in the petitioner schedule shop room. PW2 also deposed that she having acquired the required qualification desires to open a retail medical shop for which she can make use of the petition schedule shop room only. Challenge to their evidence is that they are very rich having no need to start such a business. Moreover, she is inexperinced in conducting a business. Both Courts below considered in detail that evidence in the light of the relevant precedents. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803]** 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. Therefore, there is no reason for us to interfere with such a concurrent finding rendered by the Courts below 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 9 RCR No.223 of 2016 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. RW1 has admitted during cross examination that the said rooms were still incomplete and the petitioner did not possess any other vacant room. Therefore it cannot be said that any vacant room suitable for the projected need of PW2 is available with either PW1 or PW2. It follows that the respondent cannot claim the benefit of the first proviso of Section 11(3) of the Act. The courts below rightly had held this point in favour of the petitioner. 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. Both the Rent Control Court as well as the Appellate Authority found that the only income on which the respondent can depend for his livelihood is that from the business in the petition schedule shop room. The respondent is conducting a grocery shop in that room. Other than his oral testimony, he did not produce any evidence in that regard. 10 RCR No.223 of 2016 However, the authorities below did not accept the case of the petitioner. Rent Control Court also had found that the respondent proved that no other suitable building or room is available in the locality to shift his business. The Appellate Authority considered the evidence of RW1 and Exts.C1 report in detail, and in reversal of the said finding, concluded that evidence let in by the respondent was insufficient to prove non availability of other vacant rooms in the locality. 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. 11 RCR No.223 of 2016 14. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) 12 RCR No.223 of 2016 of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 15. The respondent as RW1 deposed that his only income was from the small scale grocery business in the petition schedule shop room. His family comprising himself, wife and children are depending for their livelihood on the said income alone. It is his 13 RCR No.223 of 2016 version that his daily profit is just Rs.200/- and that he has no other sources of income. It may be said that the business being not on a large scale, he might not be maintaining any accounts. But, when it is the burden of the tenant to prove satisfactorily that he has no other income than that from the tenanted premises, he is expected to produce some independent evidence regarding his income. In the absence of any such evidence, it cannot be said that the respondent has satisfactorily discharged his burden. Of course, both the authorities below concurrently found that the evidence of RW1 was reliable and sufficient to prove that he has been depending for his livelihood solely on the income derived from the business in the petition schedule shop room. We do not think that the said finding is totally perverse and hence we do not want to interfere with that finding. 16. The observations of the Appellate Authority regarding availability of alternative vacant rooms in the locality are that RW1 did not make any enquiry and the oral testimony of PW1 read with Ext.C1 report would probabilise that there are other vacant rooms available in that area. Two rooms seen closed down have been pointed out by the Commissioner in Ext.C1. PW1 deposed that 14 RCR No.223 of 2016 besides the said rooms, several vacant rooms are available at Chirayil peedika, a place just 500 metres away. When these facts were put during cross-examination, RW1 maintained that he did not enquire about any such room. As pointed out above, it is the absolute burden of the tenant to prove non availability of any other alternative accommodation. The respondent without making any enquiry, regarding such availability, cannot contend that no other room is available for shifting his business. He, for that reason, is unable to deny also the availability of rooms pointed out by PW1 and also the Advocate Commissioner. In the light of the said evidence, the conclusions arrived at by the Appellate Authority can only be upheld. 17. Both limbs under the second proviso to Section 11(3) of the Act are conjunctive. Even if the tenant succeeded in proving one of the limbs, that will not help him to avail the help of the second proviso. The Appellate Authority found the first limb in favour of the tenant and the second limb against him. However, the authority proceeded to hold that the respondent was entitled to get the benefit of the second proviso. The said finding is wrong and is liable to be reversed. The necessary corollary is that 15 RCR No.223 of 2016 judgment of the Appellate Authority dismissing the Rent Control Petition by concurring with the order of the Rent Control Court is liable to be set aside. R.C.P.No.43 of 2013 on the files of the Rent Control Court, Vatakara is therefore liable to be allowed. 18. Hence we allow this revision. On setting aside the order dated 04.12.2013 in R.C.P.No.43 of 2013 and the judgment dated 12.02.2016 in R.C.A.No.06 of 2014 of the Appellate Authority, R.C.P.No.43 of 2013 is allowed. 19. The learned counsel appearing for the respondent would submit that at least nine months may be granted for surrendering of the petition schedule shop room to the petitioner. 20. 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 16 RCR No.223 of 2016 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; - (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 month, 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