Secretary, District Motor Labour Union Office (CITU), Palakkad v. Muhammad Rafi and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` RCREV. NO.61 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 19.01.2024 IN RCA NO.15 OF 2023 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD ARISING OUT OF THE ORDER DATED 27.06.2023 IN RCP NO.18 OF 2016 OF PRINCIPAL MUNSIFF COURT, PALAKKAD ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT-TENANT:`** ``` THE SECRETARY AGED 70 YEARS DISTRICT MOTOR LABOUR UNION OFFICE(CITU), METTUPALAYAM STREET, PALAKKAD,PIN – 678001 ``` ``` BY ADVS. RAJESH SIVARAMANKUTTY MAYA C.P. K.V.ANTONY VIJINA K. ARUL MURALIDHARAN T.SETHUMADHAVAN (SR.)(S-310) ``` ## **`- RESPONDENTS/RESPONDENTS/PETITIONERS LANDLORDS:`** ``` 1MUHAMMAD RAFI AGED 58 YEARS ``` ``` S/O LATE K.M. ABOOBAKAR, K.M.A MANZIL, 20/256, PUTHUPPALLYTHERUVU, NOORANI, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN – 678001 ``` ``` 2MUHAMMAD HARIS AGED 56 YEARS ``` ``` S/O LATE K.M. ABOOBAKAR, K.M.A MANZIL, 20/256, ``` 2 R.C.(Rev) No.61 of 2024 ``` PUTHUPPALLYTHERUVU, NOORANI, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN – 678001 ``` ``` 3MUHAMMAD AFSAL AGED 55 YEARS S/O LATE K.M. ABOOBAKAR, K.M.A MANZIL, 20/256, PUTHUPPALLYTHERUVU, NOORANI, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN – 678001 ``` ``` 4ARIFA AGED 50 YEARS W/O K.M. ABDUL MANAF, K.M.A MANZIL, 20/256, PUTHUPPALLYTHERUVU, NOORANI, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN – 678001 ``` ``` 5UBAIS AGED 26 YEARS S/O K.M. ABDUL MANAF, K.M.A MANZIL, 20/256, PUTHUPPALLYTHERUVU, NOORANI, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN – 678001 ``` ``` 6SUMAYYA MAJNA AGED 25 YEARS D/O K.M. ABDUL MANAF, K.M.A MANZIL, 20/256, PUTHUPPALLYTHERUVU, NOORANI, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN - 678001 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.C.(Rev) No.61 of 2024 ## **O R D E R** ## G. Girish, J. The tenant in R.C.P.No.18 of 2016 of the Rent Control Court, Palakkad, has filed this revision petition challenging the dismissal of the appeal filed against the order of the said court, directing eviction of the tenant from the petition schedule building, on the grounds of arrears of rent and bona fide need envisaged under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). 2. The petition schedule building, which belonged to one Mr.K.M.Aboobacker, the predecessor-in-interest of the respondents- landlords, was leased out to the petitioner-tenant as early as 09.02.1959. After the death of the abovesaid Aboobacker, the petitioners and their other siblings continued the lease arrangement with the petitioner-tenant, as landlords of the building. Later on, the petitioners are said to have purchased the shares of the other siblings over that property. The rent of the petition schedule building is said to be Rs.7,000/- per month from January, 2005 onwards. The petitioner-tenant is alleged to have committed default in the payment of rent from July, 2007 onwards. In the meanwhile, respondents 3 and 4 wanted to have possession of the petition schedule building for the purpose of conducting a cool bar cum bakery. Hence, the petitioner-tenant was demanded by way of notice 4 R.C.(Rev) No.61 of 2024 to vacate the petition schedule building. As the petitioner-tenant did not abide by the terms of the above notice, the respondentslandlords instituted R.C.P.No.18 of 2016 before the Rent Control Court, Palakkad, seeking eviction of the tenant, on the ground of arrears of rent and bona fide need. In the above proceedings, the 2[nd] respondent was examined as PW1 and five documents were marked as Exts.A1 to A5. Two witnesses were examined from the part of the petitioner-tenant, as RW1 and RW2 and 11 documents marked as Exts.B1 to B11. A commission report prepared by an Advocate Commissioner appointed by the Rent Control Court, was marked as Ext.C1. As per the order dated 27.06.2023, the Rent Control Court directed the petitioner-tenant to handover vacant possession of the petition schedule building to the respondentslandlords under Sections 11(2)(b) and 11(3) of the Act. 3. Though the petitioner-tenant approached the Rent Control Appellate Authority, Palakkad, by filing R.C.A.No.15 of 2023, the Appellate Authority refused to interfere with the order of Rent Control Court, and accordingly, the above appeal was dismissed, as per the judgment dated 19.01.2024. It is the above judgment, which is under challenge in this revision. 4. Heard the learned counsel for the petitioner-tenant. 5 R.C.(Rev) No.61 of 2024 5. The point to be decided in this revision is whether the impugned order of the Rent Control Court, Palakkad and the judgment of the Rent Control Appellate Authority, directing eviction of the petitioner-tenant from the petition schedule building under Sections 11(2)(b) and 11(3) of the Act, is liable to be interfered with. 6. The proceedings for eviction initiated by the respondentslandlords, was resisted by the petitioner-tenant, mainly on the ground that there is no landlord-tenant relationship. It was contended that the petitioner-tenant had perfected fixity of tenure over the petition schedule building, and hence, the respondentslandlords were disqualified and disentitled to seek eviction of the petitioner-tenant, by resorting to the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court as well as the Appellate Authority rightly rejected the above contention of the petitioner-tenant, for the reason that the issue in the above regard had attained finality in the earlier round of this litigation, which commenced with a petition filed by the petitionertenant as I.A.No.4772 of 2016 before the Rent Control Court, to consider the denial of title of the landlord as a preliminary point. The Rent Control Court as well as the Appellate Authority declined to accept the claim of the petitioner-tenant in the above regard, and hence, the petitioner-tenant had preferred O.P(RC) No.197 of 2019 6 R.C.(Rev) No.61 of 2024 before this Court, against the concurrent findings of the trial court and the Appellate Authority in the above regard. The above Original Petition was dismissed by this Court on 21.11.2019 with the observation that there was no bona fides in the denial of title and claim for fixity of tenure raised by the petitioner-tenant. In view of the finality of the decision on the above point with the judgment of this Court rejecting the challenge raised by the petitioner-tenant against the legal capacity of the respondents as landlords, there was absolutely no scope for re-agitating that issue once again. The Rent Control Court as well as the Appellate Authority rightly observed the above aspect, and rejected the objection of the petitioner-tenant on that ground. 7. As regards the arrears of rent due from the petitionertenant right from 2007 onwards, and the statutory notice issued by the landlords, demanding the payment of rent, Rent Control Court as well as the Appellate Authority have appreciated the evidence in the correct perspective, and held that the petitioner-tenant is liable to be evicted from petition schedule building, on the ground of arrears of rent, as envisaged under Section 11(2)(b) of the Act. It is true that the tenant had raised a contention that the amount which is said to have been expended for the repair and renovation of the petition schedule building, is liable to be adjusted with the arrears 7 R.C.(Rev) No.61 of 2024 of rent due from them. The contention of the petitioner-tenant in the above regard is also rightly repelled by the Rent Control Court and the Appellate Authority. It is the settled position of law that the contention of the tenant with regard to adjustments and set off of the amount said to have been expended for the renovation and repair of the building, security deposits, etc., cannot be entertained, while dealing with the issue of arrears of rent due from the tenant, and the eviction sought under Section 11(2)(b) of the Act. The proposition of law in this regard, has been laid down in the decisions of this Court in **Abdul Gafoor M.C. v. K. Abdurahiman and another [2015 (3) KHC 775]** , **Gopala Panicker Baiju and Another v. Mallika [2018 (5) KHC 95]** and **Abdul Razak P.M. v. K.C.Thomas and others [2022 (4) KHC 260]** . Therefore, there is absolutely no merit in the contentions set forth by the petitionertenant, in opposing eviction under Section 11(2)(b) of the Act. 8. As regards the claim of eviction of the landlord under Section 11(3) of the Act, it is the settled position of law that, if the need projected by the landlord is natural, real, sincere and honest, there is no other option, but to direct the tenant to handover vacant possession of the building to the landlord, of course, subject to provisos (1) and (2) of that Section. 8 R.C.(Rev) No.61 of 2024 9. 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 need so as to convince the court that it is not a mere fanciful or whimsical desire. ## 10. 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 9 ## R.C.(Rev) No.61 of 2024 particular need is bona fide or not has to be judged by the Court, placing itself in the position of landlord. ## 11. 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. ## 12. In **Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** , a Division Bench of this Court in which one among us [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). 10 R.C.(Rev) No.61 of 2024 13. 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. 14. In the instant case, the Rent Control Court and the Appellate Authority have rightly appreciated the evidence on record and held that respondents 3 and 4 are in bona fide need of the petition schedule building for the commencement of a cool bar cum bakery. 15. As regards the onus of proving requirements of provisos 1 and 2 of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, it is well-settled that it is upto the tenant to bring out the requisite particulars through convincing evidence, for seeking the protection of the said provisos. 16. Following various earlier decisions of this Court, it has been held by a Division Bench of this Court in **Chethil Tharemmal Rasheeda v. Peedikayilakath Muhammad [2021 (6) KHC** 11 R.C.(Rev) No.61 of 2024 **723]** , in which one among us, [Anil K. Narendran, J.] was a party, that the burden to prove the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, is on the tenant. So also, in **Aboobacker.C.P v. K.T.Sreelatha Nambiar** (supra) it has been held that it is the absolute burden of the tenants to prove both limbs of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. 17. As far as the present case is concerned, the Rent Control Court and the Appellate Authority are seen to have evaluated the evidence in the correct perspective and arrived at the conclusion that the respondents-landlords are in bona fide need to have possession of the petition schedule building, and that the petitioner-tenant could not bring out anything to claim the protection and privilege of provisos 1 and 2 of Section 11(3) of the Act. That being so, the revision preferred by the petitioner-tenant, can only fail. 18. When our view, as above, has been made clear in open court, the learned counsel for the revision petitioner-tenant sought six months’ time for the revision petitioner to vacate the petition schedule building. Having regard to the submissions of the learned counsel for the revision petitioner, and the facts and circumstances of the case, we feel it proper to grant a period of four months’ time to the revision petitioner-tenant to vacate the petition schedule 12 ## R.C.(Rev) No.61 of 2024 building, if they are ready to abide by the terms and conditions enumerated hereafter in the concluding portion of this order. Accordingly, 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 building to the respondents-landlords, 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 they will surrender vacant possession of the petition schedule building to the respondents-landlords within four months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop building; - (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 13 R.C.(Rev) No.61 of 2024 building will stand cancelled automatically and the respondents-landlords will be at liberty to proceed with the execution of the order of eviction. (sd/-) (sd/-) **G. GIRISH, JUDGE** vgd