SANTHA AGED 72 YEARS; ANILKUMAR; LASITHA; MANOJ v. NIVED NATH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944** **RCREV. NO. 240 OF 2019** **AGAINST THE JUDGMENT DATED 10.09.2018 IN R.C.A NO.02 OF 2013 ON THE FILES OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE – II), THALASSERY WHICH AROSE FROM THE ORDER DATED 14.11.2012 IN R.C.P No.49 of 2010 ON THE FILES OF RENT CONTROL COURT (MUNSIFF), KOOTHUPARAMBA)** ## **REVISION PETITIONERS:** **1 SANTHA AGED 72 YEARS** **W/O.LATE PONNAMBATH BALAN, PATHIRIYAD AMSOM, KELALOOR DESOM, P.O. MAMBARAM, THALASSERY TALUK, KANNUR DISTRICT.** **2 ANILKUMAR, AGED 49 YEARS S/O.LATE PONNAMBATH BALAN, PATHIRIYAD AMSOM, KELALOOR DESOM, P.O. MAMBARAM, THALASSERY TALUK, KANNUR DISTRICT.** - **3 LASITHA, AGED 48 YEARS** **D/O.LATE PONNAMBATH BALAN, PATHIRIYAD AMSOM, KELALOOR DESOM, P.O. MAMBARAM, THALASSERY TALUK, KANNUR DISTRICT.** - **4 MANOJ AGED 47 YEARS** **S/O.LATE PONNAMBATH BALAN, PATHIRIYAD AMSOM, KELALOOR DESOM, P.O. MAMBARAM, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADVS. M.SASINDRAN** 2 R.C.Rev.No.240 of 2019 ## **SRI.SATHEESHAN ALAKKADAN** **RESPONDENT:** **NIVED NATH AGED 22 YEARS S/O.SATHYANATH, NO OCCUPATION, VEENUS, KANNUR AMSOM DESOM, POST KANNUR -670 001.** **BY ADV.** **SRI.K.V.PAVITHRAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 23.06.2022, THE COURT ON 04.07.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.240 of 2019 ## **O R D E R** ## Ajithkumar, J. The petitioners are the tenants. The respondent-landlord filed R.C.P.No.49 of 2010 before the Rent Control Court (Munsiff), Koothuparamba, seeking eviction of the original tenant Sri.Ponnanbath Balan, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, along with a prayer for fixation of fair rent under Section 5(1). As per order dated 14.11.2012, the Rent Control Court ordered eviction and also fixed fair rent at Rs.1,800/- per month with effect from the date of that order. Sri.Ponnanbath Balan filed an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-II), Thalassery. During pendency of the appeal, Sri.Ponnanbath Balan died and his legal representatives came on record. The appeal was dismissed. They therefore filed this revision under Section 20 of the Act. 2. On 13.06.2019, notice on admission was ordered to be served on the respondent and an interim order of stay was granted for a period of one month. The order of stay has been 4 R.C.Rev.No.240 of 2019 extended from time to time and is still in force. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. 4. The respondent secured a BBM degree and he remains unemployed. His grandfather established a chain of bakeries named “Venus Bakery”. Now, his relatives are conducting several outlets of the bakery at different places. The respondent wants to start a bakery in the petition schedule shop room, for which he sought eviction on the ground of bona fide need for own occupation. 5. Originally the monthly rent was Rs.500/- and it was enhanced to Rs.800/-. The prevailing market rate in the locality for similarly placed shop rooms is more than Rs.2,500/-. Therefore, the respondent sought to fix fair rent for the petition schedule shop rooms at Rs.2,500/-. 6. The tenant filed a counter statement contending that the need urged by the respondent was not bona fide. There was no need or necessity for the respondent to conduct such a 5 R.C.Rev.No.240 of 2019 business. Considering his position in the society, he would not venture to start such a business. The tenant and his family have been depending for their livelihood on the income derived from the business of letting chairs, tables, sound systems, etc. in the petition schedule shop room. There is no other suitable room or building available in the locality to shift that business. Need for fixing a fair rent was also disputed by the tenant. 7. Evidence in the case comprises oral testimonies of PW1, RW1 and RW2, Exts.A1 to A5 and C1. 8. The learned counsel appearing for the petitioners would contend that finding of the courts below that the need urged by the respondent was honest and bona fide, is not on the basis of any reliable evidence. Also, it is contended that the second proviso to Section 11(3) of the Act should have been invoked in favour of the petitioners. The legal contention raised by the petitioners is that since fair rent was fixed, they are entitled for immunity from eviction for a period of five years in the light of the decision in **Mohammad Ahmad and another v. Atma Ram Chauhan and others [(2011) 7 SCC 755]** . 6 R.C.Rev.No.240 of 2019 9. The learned counsel appearing for the respondent, on the other hand, would contend that the findings on facts entered into by the courts below are supported by sufficient evidence and there is absolutely no reason to interfere with the same. As regards the question of immunity from eviction for five years claimed by the petitioners, the petitioner is not entitled to claim such immunity since it has been contended that the order fixing fair rent is yet to become final, having it been a subject matter of this revision. It is also asserted by the learned counsel that the period of five years has already been over since the date from which the order fixing fair rent has effect is the date of the order of the Rent Control Court, i.e., 14.11.2012. 10. The Rent Control Court as per its order dated 14.12.2012, had fixed the fair rent at Rs.1,800/- per month. The said order was given effect from the date of the order and not from the date of the petition. The Appellate Authority confirmed that order. Now, the said order is under challenge in this revision as well. The protection from eviction entitled by a tenant as per the decision of the Apex Court in **Mohammad Ahmad** (supra) is 7 R.C.Rev.No.240 of 2019 for a period of five years from the date of fixation of the fair rent. Although it has been put under challenge by the petitioners first by filing the appeal and then by filing this revision, the fair rent is effective from 14.11.2012. Thus, the question still has been subjudice. In that view of the matter, the petitioners cannot claim benefit of the decision in **Mohammad Ahmad** (supra). 11. As pointed out above, the order fixing fair rent has effect from 14.11.2012. In **Subair and others v. C.P.Kunhami @ Kunjhimariyam and others [2015 (5) KHC 260]** this Court held that the period of five years has to be computed from the date from which the fair rent has effect. The said view was reiterated by this Court in **Puthenpurayil Shabeer v. Cheriya Thoppilakath Aminabi [2019 (1) KLT SN 69(92)]** . That view, however, has no application here for the reason that the order fixing fair rent is yet become final and operative. The contention of the petitioners that this rent control proceedings is premature is therefore untenable. 12. The bona fides of the need urged by the respondent was assailed by the petitioners contending that he has no 8 R.C.Rev.No.240 of 2019 necessity to start a bakery. It is contended that the respondent has been working abroad and earning enough income. Therefore, his intention is only to evict the petitioners and to let out the building to some others for higher rent. The respondent in court as PW1 deposed that he remained jobless and wanted to start a bakery business. The bakery business has become their family avocation; since it was started by his grandfather and being continued by opening several outlets by a few of his relatives. He will get help and assistance from such relatives, and therefore, he can successfully conduct a bakery business. 13. Regarding the allegation of his employment abroad, he produced Exts.A2 and A3. He deposed that he never was employed abroad. He went to the Gulf for a management course after completing his BBM degree. Ext.A2 is his passport and Ext.A3 is his student identity card. From the said evidence, it is quite clear that he went abroad to have his studies and not for any employment. There is absolutely no evidence that PW1 had had any employment. In the light of the said evidence, the courts below concurrently found that the need urged by the respondent 9 R.C.Rev.No.240 of 2019 is bona fide. 14. 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 10 R.C.Rev.No.240 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. 15. 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 11 R.C.Rev.No.240 of 2019 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. 16. 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 12 R.C.Rev.No.240 of 2019 Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 17. In view of the principles laid down by the Apex Court as well as this Court, which are referred to above, evidence let in by the respondent well justifies that he has urged the need with utmost honesty and sincerity. There is absolutely no reason to interfere with the findings of the courts below in that regard. 18. The petitioners raised contentions that the respondent has several other rooms in his possession, and therefore, the first proviso to Section 11(3) of the Act stands in the way of his claiming eviction of the petitioners. The contention of the respondent, per contra, is that he or his mother does not possess any vacant room. He produced Ext.A5, which is a rent agreement in order to show that another room owned by his mother was let out to one Sri.Khader. PW1 deposed in court that Sri.Khader continues the occupation of the said room. There is no contra evidence to show that any vacant room is in the possession of the respondent. In the said circumstances, the first proviso to Section 11(3) of the Act does not attract in this case. 13 R.C.Rev.No.240 of 2019 19. The petitioners do claim the benefit of the second proviso to Section 11(3) of the Act as well. In order to succeed in that claim, the petitioners ought to prove satisfactorily both limbs of the second proviso. The evidence available on record with regard to the income being derived by the petitioners from the business in the petition schedule shop rooms is that of the oral testimony of RW1 alone. He is the son of the original tenant Sri.Ponnanbath Balan. What he deposed is that for the last six years, he had been conducting the business and the income deriving from the business was not at all stable. Of course, the original tenant died and his legal representatives, including RW1, came on record. But the evidence remains the same. Whether all the petitioners are depending for their livelihood on the income from the business, or RW1 alone is depending on such income, is not known. Rather, the evidence let in by RW1 is totally insufficient to show that none of the petitioners has any other sources of income and also that they can depend only on the income from the business in the petition schedule premises. 20. Coming to the second limb of the second proviso to 14 R.C.Rev.No.240 of 2019 Section 11(3) of the Act, there is no much evidence. Besides RW1, RW2 also was examined in this respect. RW2 is a person doing business in the same locality. Both of them stated that no vacant building or room is available in the locality for availing on rent. Without the support of any documentary evidence, they deposed in court. Their evidence would not show that after having necessary enquiry regarding non-availability of other buildings, they have deposed that fact in the court. In the said circumstances, their evidence was rightly rejected by the courts below. It cannot be said that the finding of the courts below that the petitioners are not entitled to the benefit of the second proviso to Section 11(3) of the Act is either perverse or illegal. We, therefore, confirm the said finding. 21. The rent being paid by the petitioners is Rs.800/- per month. The respondent demanded to fix the fair rent as Rs.2,500/-. But the Rent Control Court fixed the fair rent as Rs.1,800/- per month. The Appellate Authority approved the same. The tenanted premises comprises one front room and two godown rooms behind. PW1 deposed that similar accommodation 15 R.C.Rev.No.240 of 2019 in the area fetches more than Rs.2,500/-. According to him, the said rooms are situated at the heart of Mambaram town and all facilities are available in that locality. Besides the oral testimony of PW1, the respondent would point out Ext.C1, the report of the Commissioner also. The Commissioner has reported that adjacent rooms of similar nature fetch monthly rent between Rs.850/- to Rs.2,000/- per room. RW1 is seen to have admitted that a room would fetch a rent of Rs.1000/- per month. 22. In **Edgar Ferus v. Abraham Itticheriya [2004 KHC 123 : 2004 (1) KLT 767]** , this Court laid down the principles governing the fixation of fair rent and the Apex Court affirmed the said decision in **Edgar Ferus v. Abraham Itticheriya [2009 KHC 5126 : 2009 (4) KLT 673(SC)]** . The following are the guidelines laid down: - “7. Rent Control Court while fixing fair rent could take note of the inflation and resultant reduction in the purchasing power of money, variations in the cost of living index in the area since commencement of the lease, demand for accommodation and availability of the buildings in the locality. 8. The cost of construction of the building including cost of 16 R.C.Rev.No.240 of 2019 labour and building materials, capital value of the entire premises in the enjoyment of the tenant inclusive of the value of the land under the actual enjoyment of the tenant whether immediately appurtenant to the building or otherwise, type of construction, locational importance, situations of the tenanted premises, ground floor, first floor etc. and other advantages and amenities, such as access to places of public importance like bus stand, railway station, educational institution, hospitals etc. would also be guiding factors. 9. The Rent Control Court will also take into consideration the prevailing rent in the locality for the same and similar accommodation. The type of construction, the amenities, general or special provided in the building, the open land attached to the building, whether residential or non residential are also to be borne in mind. 10. Annual rental value of the building at the time of filing the application for fair rent may also be taken as a guiding factor along with others. 11. Revision or fresh imposition of municipal taxes, cess, rate in respect of other increase in the charge of electricity or water consumption by the tenant and also by the landlord and increase on account of sufficient repairs would also be taken note of by the Rent Control Court. 12. The Rent Control Court can while resolving any rent control dispute on an application either by the landlord or tenant examine whether the rent is static and requires 17 R.C.Rev.No.240 of 2019 revision and fix fair rent accordingly permitting the parties to adduce evidence.” 23. The courts below considered the evidence on record in detail before fixing the fair rent as Rs.1,800/-. We are of the view that in the light of the aforesaid parameters laid down by the Apex Court for fixing the fair rent, the view taken by the courts below cannot be said to be improper, irregular or perverse. We, therefore, do not propose to interfere with the findings whereby fair rent fixed by the Courts below at Rs.1,800/- per month also. 24. Accordingly, we find that this revision does not have merit and the same is liable only to be dismissed. Hence, the revision is dismissed. 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 premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his 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 room, subject to the 18 R.C.Rev.No.240 of 2019 ## 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 surrender vacant possession of the petition schedule shop room 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 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 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 room will stand cancelled automatically and 19 R.C.Rev.No.240 of 2019 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