Sasidharan T.P. v. Fathima W/o KalantHan and Shabili d/o KalantHan (R.C.Rev.No.207 of 2020; connected cases 214/2020 and 225/2020)

## **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 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** **R.C.REV.NO.207 OF 2020 AGAINST THE JUDGMENT DATED 12.12.2019 IN R.C.A No.74 OF 2018 ON THE FILE OF II ADDITIONAL RENT CONTROL APPELLATE AUTHORITY/II ADDITIONAL DISTRICT JUDGE, VADAKARA CONFIRMING THE ORDER DATED 21.12.2017 IN R.C.P.No.5 OF 2014 OF THE RENT CONTROL MUNSIFF COURT, KOYILANDY** ## **REVISION PETITIONER:** **SASIDHARAN T.P. AGED 58 YEARS S/O.NARAYANAN NAIR, KORUTHUMKANDY HOUSE, PERUVANNAMUZHI P.O., PERAMBRA AMSOM PILLAPERUVANNA DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT- 673 528 BY ADVS. SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN** ## **RESPONDENTS:** **1 FATHIMA W/O.KALANTHAN, AGED 59 YEARS, CHALAPPURATH HOUSE, AVADUKKA AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT - 673 528** **2 SHABILI D/O.KALANTHAN, AGED 39 YEARS, CHALAPPURATH HOUSE, AVADUKKA AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 673 528 BY ADVS. SMT.M.SHAJNA SRI.K.M.FIROZ** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.05.2022, ALONG WITH R.C.Rev.Nos.225/2020 & 214/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.R.Nos 207, 214 & 225 of 2020 ## **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 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** **R.C.REV.NO.225 OF 2020 AGAINST THE JUDGMENT DATED 12.12.2019 IN R.C.A.No.75 OF 2018 ON THE FILE OF II ADDITIONAL RENT CONTROL APPELLATE AUTHORITY/II ADDITIONAL DISTRIT JUDGE, VADAKARA CONFIRMING THE ORDER DATED 21.12.2017 IN R.C.P No.7 OF 2014 ON THE FILE OF RENT CONTROL MUNSIFF COURT, KOYILANDY** ## **REVISION PETITIONER:** **SURESH BABU AGED 51 YEARS S/O.CHOYI, VADAKKEVADAKKUMPATTU HOUSE, KALPATHUR P.O., KALPATHUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673 524 BY ADVS. SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN** ## **RESPONDENTS:** **1 FATHIMA W/O.KALANTHAN, AGED 57 YEARS, CHALAPPURATH HOUSE, AVADUKKA AMSOM AND DESOM KOYILANDY TALUK, KOZHIKKODE DISTRICT -673 528 2 SHABILI AGED 37 YEARS D/O.KALANTHAN, CHALAPPURATH HOUSE, AVADUKKA AMSOM AND DESOM,KOYILANDY TALUK, KOZHIKKODE DISTRICT -673 528 BY ADVS. K.M.FIROZ M.SHAJNA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.05.2022, ALONG WITH RCRev.207/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.R.Nos 207, 214 & 225 of 2020 **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 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** **R.C.REV.NO.214 OF 2020 AGAINST THE JUDGMENT DATED 12.12.2019 IN R.C.A.No.73 OF 2018 OF II ADDITIONAL RENT CONTROL APPELLATE AUTHORITY/II ADDITIONAL DISTRICT JUDGE, VADAKARA CONFIRMING THE ORDER DATED 21.12.2017 IN R.C.P No.6 OF 2014 OF THE RENT CONTROL MUNSIFF COURT, KOYILANDY** ## **REVISION PETITIONER:** **RAJAN C AGED 46 YEARS S/O.KELAPPAN, CHERUVALLI HOUSE, AVADUKKA P.O, AVADUKKA AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 673 524 BY ADVS. M.PROMODH KUMAR SMT.MAYA CHANDRAN** ## **RESPONDENTS:** **1 FATHIMA AGED 57 YEARS W/O.KALANTHAN, CHALAPPURATH HOUSE, AVADUKKA AMSOM AND DESOM KOYILANDY TALUK, KOZHIKODE DISTRICT- 673 528 2 SHABILI, AGED 37 YEARS D/O. KALANTHAN, CHALAPPURATH HOUSE, AVADUKKA AMSOM AND DESOM KOYILANDY TALUK, KOZHIKKODE DISTRICT - 673 528 BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.05.2022, ALONG WITH R.C.Rev.207 OF 2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 R.C.R.Nos 207, 214 & 225 of 2020 ## **O R D E R** ## Ajithkumar, J Respondents are the landlords. They filed R.C.P.Nos.5, 6 and 7 of 2014 before the Rent Control Court (Munsiff), Perambra seeking eviction of the revision petitioners – tenants from the respective petition schedule shop rooms which are part of a larger two-storied building, under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control Act), 1965. A joint trial was held. The Rent Control Court as per the order dated 21.12.2017, disallowed eviction under section 11(2)(b) of the Act holding that the rent in arrears was paid by the tenants. The Rent Control Court however allowed all the petitions under Section 11(3) of the Act directing the petitioners to surrender respective tenanted premises within three months from the date of that order. The petitioners preferred appeals under section 18 (1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge), Vatkara. The appeals were unsuccessful. The petitioners thereupon filed these revision petitions invoking the discretionary jurisdiction of this Court under Section 20 of the Act. 2. On 11.12.2020, this Court admitted the revisions to file 5 ## R.C.R.Nos 207, 214 & 225 of 2020 and ordered notice to the respondents. The respondents entered appearance through their counsel. 3. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondents. 4. The learned counsel appearing for the petitioners would submit that both the courts below did not appreciate the evidence in its proper perspective, but after having a peremptory consideration, held that the need urged by the respondents was bona fide. It has come out in evidence that other rooms in the same building belonging to the respondents were lying vacant. The reasons set forth by the respondents for not occupying those rooms were absolutely insufficient or acceptable even from a common-sense point of view. The respondents did not care to state in the eviction petitions about the availability of such vacant rooms in their possession and only when that fact came to be proved, the 1[st] respondent, PW1 came forward with an explanation for not occupying the said rooms which are not plausible or logical. The courts below however accepted the explanation and thereby went wrong in holding that the special reasons offered by them are satisfactory. 5. The learned counsel appearing for the petitioner further 6 ## R.C.R.Nos 207, 214 & 225 of 2020 would submit that the ability or experience of the 2nd respondent to conduct a ladies tailoring unit which the respondents propose to start in the petition schedule shop rooms were not attempted to be proved even. The oral testimony of PW1 alone in this respect is insufficient to satisfy the conscience of the court that the need urged is an honest or genuine one. The learned counsel, for such reasons, canvassed for a finding that the need urged by the respondents is not a bona fide one. It is also contended that the facts proved in the case certainly disentitles the respondents from getting an order of eviction on account of the caveat contained in the first proviso to section 11(3) of the Act. 6. The learned counsel appearing for the respondents, on the other hand, would submit that the need is that of the 2[nd] respondent, a deaf woman having a child who is finding it difficult to meet his life necessities on account of desertion by her husband. Having it been the definite case of the respondents that three rooms involved in these cases together with the adjoining vacant room, which are in the ground floor of the building are required to accommodate the tailoring unit, the 2[nd] respondent with the help of the 1[st] respondent proposes to start, it would be 7 ## R.C.R.Nos 207, 214 & 225 of 2020 quite hard to assail the bonafides of that need. The 2[nd] respondent being a differently-abled person, it is the concern of everyone that she is properly accommodated so as she get on with her life comfortably. After the death of her father who was the original landlord, the 2[nd] respondent is a co-owner. She, confronted with the hard realities in life, wants to start an establishment of her own. In the said circumstances, the need projected by the respondents can no way be said a ruse for eviction. 7. According to the learned counsel appearing for the respondents, it is not a duty of the landlord to explain each and every room in their possession for claiming eviction on the ground of bona fide need. When the petitioners pointed out the availability of vacant rooms with the respondents, PW1 did satisfactorily explain the reasons for the non occupation of such rooms and therefore this is a case where the availability of such vacant rooms does not affect the bona fides of the respondents or is a reason to attract the mischief of the first proviso to Section 11(3) of the Act. 8. 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 8 R.C.R.Nos 207, 214 & 225 of 2020 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 re-appreciated the 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 reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 9. 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 Saradamma** the Apex Court 9 ## R.C.R.Nos 207, 214 & 225 of 2020 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. ## 10. 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. In the light of the law laid down in the aforesaid decisions, this Court is not expected to re-appreciate the evidence unless we are convinced that the 10 R.C.R.Nos 207, 214 & 225 of 2020 findings entered into by the courts below are so perverse, illegal, or improper. 11. Section 11 of the Act deals with the 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 the 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 11 R.C.R.Nos 207, 214 & 225 of 2020 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. 12. 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 12 R.C.R.Nos 207, 214 & 225 of 2020 need so as to convince the court that it is not a mere fanciful or whimsical desire. 13. 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. 13 R.C.R.Nos 207, 214 & 225 of 2020 14. The oral testimony of PW1 contains a detailed narration about the need of the respondents to have vacant possession of the petition schedule shop rooms. It is her definite version that she knew tailoring and has enough knowhow to conduct a business establishment. The proposal is to start a ladies tailoring unit by the 2nd respondent for her benefit with the aid and assistance of PW1. The need of the 2nd respondent to have a reasonable income generated for her livelihood cannot be doubted. It is categorically deposed that the three petition schedule shop rooms and the adjoining room are required to accommodate the tailoring unit the respondents propose to start. When that is the definite case of the respondents, non- occupation of the 4th room which is now lying vacant by the respondents cannot be a reason either to doubt the bona fides of the need urged by the respondents or to invoke the provisions of the first proviso to section 11(3) of the Act. When the said evidence is tested in the light of the law laid down in the aforesaid decisions, it can only be said that the findings of the court below that the need urged by the respondents is bona fide cannot be said to be illegal, irregular or improper. 15. Not only one room in the ground floor, but also a hall 14 R.C.R.Nos 207, 214 & 225 of 2020 and adjoining room in the first floor are also pointed out by the petitioners to be vacant. Obviously, the respondents are obliged to explain for non-occupation of the said area. As pointed out above, PW1 explained satisfactorily, the reason for the non-occupation of a vacant room on the ground floor. As regards the hall and its adjoining room in the first floor of the building, her clarification is that the tailoring unit they have proposed to start cannot be housed there for the reasons that such a unit needs to be conducted in the ground floor for its prosperity and economic viability. Moreover, the 2nd respondent being a disabled person, is unable to climb to the first floor every time. Both the courts below after a detailed deliberation and appreciation of evidence concluded that the said reasons are reasonable and acceptable. We find no reason to say that the said findings are impaired or wrong. Therefore we conclude that the findings of the court below regarding the bona fides of the need urged by the respondents and non applicability of the first proviso to Section 11(3) of the Act to this case are liable only to be confirmed. 16. All the petitioners claimed the benefit of the second proviso to Section 11(3) of the Act. Petitioners were examined as 15 ## R.C.R.Nos 207, 214 & 225 of 2020 RWs 1 to 3 respectively. They asserted that income each of them is depending upon for his livelihood is the income derived from the business in the petition schedule shop rooms. They rely on that oral testimony to prove the requirements of the second proviso to section 11(3) of the Act. 17. 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. 18. The petitioners are conducting a CD shop, a DTP shop and a studio respectively in the petition schedule shop rooms concerned. None of them has produced any documentary evidence 16 R.C.R.Nos 207, 214 & 225 of 2020 with respect to the income derived from the businesses. When it is the absolute burden of the tenant to prove that they can depend for their livelihood only on the income derived from the petition schedule premises, its corollary is that they have no other sources of income. However, no evidence regarding their income from the business in question and also the absence of any other income except their self-serving statement in court is let in. In such circumstances, the findings entered into by the courts below regarding the first limb of the second proviso to section 11 (3) cannot be said to be perverse. 19. The tenants are expected also to prove the nonavailability of any alternative vacant building in the locality to shift their business. A report of the Commissioner appended by rough sketches, which shed some light regarding the availability or not of other buildings/rooms in the locality, were brought on record. The Rent Control Court did not receive the said evidence formally albeit, the same was adverted to. Noticing the said defect, the Appellate Authority marked those documents as Exts.C1, C1(a), C1(b), C2, C2(a), C2(b), C3 and C3(a). Details regarding vacant rooms in the building belonging to the 17 R.C.R.Nos 207, 214 & 225 of 2020 respondents and also the other vacant buildings/rooms in the locality were also noted in the said reports. A few rooms were pointed out in the reports as available vacant in the nearby area. RWs 1 to 3 did not venture to ascertain whether such rooms are actually available or not. In the said circumstances, it can only be said that the petitioners failed to discharge their burden cast by the second proviso to section 11(3) of the Act. Hence we confirm the findings of the courts below in this regard as well. 20. Upshot of the discussion made above is that these Rent Control Revisions are bound to fail. Therefore, we dismiss these revision petitions. 21. The learned counsel appearing for the petitioners would submit that the petitioners are carrying on business in the respective premises and in order to vacate the rooms, a reasonable time is required. Only by locating alternative accommodation, they will be able to shift their business. Considering the prevailing conditions, at least six months period is required for the purpose. 22. The learned counsel appearing for the respondents does not have any objection in allowing a reasonable time. 23. Having considered all the aspects, we deem it 18 R.C.R.Nos 207, 214 & 225 of 2020 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 respective Rent Control Petitions shall file affidavits before the Rent Control Court or the Execution Court, as the case may be, within three 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 rooms to the petitioners-landlords 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 Petitions 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 five weeks from the date of 19 R.C.R.Nos 207, 214 & 225 of 2020 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 any of the respondenttenant in the Rent Control Petitions 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 petitioners-landlords 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