Senior Superintendent of Post Offices Calicut Division, Kozhikode & Post Master Chevayur Post Office, Kozhikode v. Zuhara Iqbal

## **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.14 OF 2021** **ARISING FROM JUDGMENT DATED 13.12.2018 IN R.C.A.NO. 121 OF 2017 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE AGAINST THE ORDER DATED 12.04.2017 IN R.C.P.No.70 OF 2015 ON THE FILE OF THE RENT CONTROL COURT(ADDITIONAL MUNSIFF II), KOZHIKODE** ## **REVISION PETITIONER:** **1 SENIOR SUPERINTENDENT OF POST OFFICES CALICUT DIVISION, KOZHIKODE 673 005** **2 POST MASTER CHEVAYUR POST OFFICE, KOZHIKODE 673 017** **BY ADV SRI.S.BIJU, CGC** ## **RESPONDENT:** **ZUHARA IQBAL AGED 57 YEARS, D/O.KUNHALIKUTTY HAJI, FASNA COTTAGE, POOKKOTTOOR, KONDOTTY TALUK, MALAPPURAM - 676 517** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 29.03.2022, THE COURT ON 22.04.2022 DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.14 of 2021 ## **O R D E R** ## Ajithkumar, J. The respondent-landlady filed R.C.P.No.70 of 2015 before the Rent Control Court (Additional Munsiff-II), Kozhikode, seeking eviction of the petitioners-tenants under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Petition was allowed as per order dated 12.04.2017. The appeal preferred by the petitioners under Section 18(1)(b) of the Act as R.C.A.No.121 of 2017 was dismissed by the Rent Control Appellate Authority (District Judge), Kozhikode as per judgment dated 13.12.2018. Feeling aggrieved thereof, this Revision Petition under Section 20 of the Act was filed. 2. The respondent sought eviction projecting the need that she wanted to start a ladies tailoring and garment shop in the petition schedule room. The petition for eviction was resisted by the petitioners by contending that the need urged was not bonafide; the main reason being the respondent before and after initiating the eviction petition sent 3 R.C.Rev.No.14 of 2021 communications to the 1st petitioner intimating her consent to continue tenancy on the condition of payment of enhanced rent. It was also contended that several other vacant rooms are available in the possession of the respondent, where she can conveniently start such a business. That apart, it was alleged that the respondent does not want to start such a business, since her husband is a successful business-man and her children are professionals and well employed. 3. The Rent Control Court during trial examined PW1 and RW1 and received in evidence Exts.A1 to A3 and B1 to B4. After considering the said evidence along with other materials on record, the Rent Control Court held that the need projected by the respondent was bona fide and resultantly ordered eviction. The Appellate Authority re-appraised the evidence in detail. Every contention raised by the appellants was deliberated upon in detail in the light of the evidence available on record. The Appellate Authority did not find any reason to interfere with the findings of the Rent Control Court and accordingly dismissed the appeal. 4 R.C.Rev.No.14 of 2021 4. The Revision Petition was admitted on 18.01.2021. The order of eviction was stayed initially for a period of three months. The order was extended from time to time. 5. Heard the learned Central Government Counsel for the petitioners and the learned counsel for the respondent. 6. The learned Central Government Counsel appearing for the petitioners would contend that the need urged by the respondent, in any view, cannot be said bona fide. But the courts below on an erroneous understanding of the evidence entered into a finding in favour of the respondent. It is wrong. PW1, the landlady, gave evidence to prove the need. It is her version that she is experienced in tailoring and earlier she had been running a tailoring unit at her house. She claimed that by employing three staff, she conducted a tailoring unit for about two years, and for want of necessary convenience and facilities, she had to stop that venture. Now she wants to commence a ladies tailoring unit along with a garment shop in the petition schedule room. 7. The main reason for assailing the bona fides of 5 R.C.Rev.No.14 of 2021 PW1 is that her husband is a busy businessman and two among her three children are Doctors and the third is an Engineer. In such circumstances, it was not only unlikely, but unable for PW1 to start an independent business of her own. When the said facts were put to PW1, she explained that she wants independent income and she does not want to depend on her husband all throughout. When the respondent having a building of her own wants to start an independent business and it is proved that she is sufficiently experienced and capable to conduct the proposed business, it is not for the tenants or the court to decide whether her intention is reasonable or logical. The court can only decide whether she honestly and sincerely put forward such a need. In the crossexamination of PW1, nothing has been brought out in order to doubt her intention. 8. The learned Central Government Counsel appearing for the petitioners further pointed out that the respondent repeatedly demanded enhancement of rent and intimated the 1st petitioner about her consent to allow to continue the 6 R.C.Rev.No.14 of 2021 tenancy arrangement; provided rent is enhanced to Rs.9,000/-. Exts.B1 to B4 are placed reliance on in support of the contention. Ext.B2 and B3 are letters sent by the respondent regarding enhancement of rent. Ext.B3 is a letter sent after commencement of the eviction proceedings. The petitioners attempted to bring on record one more letter in the form of an e-mail communication sent by the respondent to the 1st petitioner, almost in the same line. The said document, which was produced before the Appellate Authority was not received in evidence. That document was produced along with I.A.No.2319 of 2018. The Appellate Authority took the view that the said e-mail communication was produced without proper certification as required in Section 65B of the Evidence Act, refused to accept it in evidence. On considering the submissions of the learned Central Government Counsel, we are of the view that there is no reason to interfere with the said order of the Appellate Authority. 9. Even if that e-mail communication is received, the nature of evidence would not have any change. Ext.B3 is 7 ## R.C.Rev.No.14 of 2021 dated 04.03.2017. The contents of the so-called e-mail communication has not much difference from the contents of Ext.B3. The courts below considered the contention of the petitioners in the light of Ext.B3 and turned down. In the said circumstances, rejection of the e-mail communication does not have any bearing in the result of this case. 10. It is seen that the respondent as per Exts.B2 and B3 intimated her consent to continue the tenancy with a caveat that there shall be enhancement in the rent. Ext.B4 is a copy of the minutes showing that the Fair Rent Assessment Committee of the Postal Department fixed the rate of rent at Rs.7,500/-. It was after taking into account that also, the respondent sent a letter intimating that such unilateral fixation of rent was not acceptable and the tenancy could be continued only if rent is enhanced. It is a matter of common knowledge that it will take a considerably long period to culminate an eviction proceedings. It is in that background the communication sent by the respondent has to be understood. She demanded enhancement of rent and when 8 R.C.Rev.No.14 of 2021 the petitioners decided unilaterally, she intimated that if rent is enhanced as she demanded, the rental arrangement could be continued. That cannot be interpreted as a ground to find that the respondent does not come with bona fides in claiming eviction of the petitioners. ## 11. 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 9 R.C.Rev.No.14 of 2021 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. 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 10 R.C.Rev.No.14 of 2021 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. 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 11 R.C.Rev.No.14 of 2021 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 proviso to Section 11(3) of the Act. 14. In the light of the definite version of PW1 and in view of the other proven facts, the finding can only be that the need urged by her is honest, sincere and therefore bona fide. The findings of the courts below in this regard is supported by sufficient evidence and justified in the light of the principles of law laid down in the decisions referred to above. Therefore, we find that it is inept for this Court to interfere with the said concurrent finding, in exercise of powers of this Court under Section 20 of the Act. 12 R.C.Rev.No.14 of 2021 15. Insofar as the first proviso to Section 11(3) of the Act is concerned, absolutely no evidence has been let in to prove the contention raised by the petitioners that the respondent has been in possession of several other vacant rooms. In such circumstances, the Rent Control Court as well as the Appellate Authority concurrently found that the provisions under the first proviso to Section 11(3) of the Act has no application to the facts of the case on hand. 16. The petitioner schedule room was availed by the petitioners for the functioning of a post office. The Chevayur Police Office is functioning in the said room. Therefore, the second proviso to Section 11(3) of the Act has no application. 17. 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 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 entire evidence, the Apex Court held that, 13 R.C.Rev.No.14 of 2021 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 re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 18. 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 reiterated that even the wider 14 R.C.Rev.No.14 of 2021 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. 19. 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. 15 R.C.Rev.No.14 of 2021 20. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 21. Chevayur post office is functioning in the petition schedule room. The learned counsel appearing for the petitioners would submit that a reasonable period is required to shift the post office by availing an alternative building. The learned counsel appearing for the respondent would submit that a period of six months is enough for that purpose. A post office needs to be stationed in its local area. The petitioners, therefore, require to locate a suitable building in the local area itself for shifting the post office from the petition schedule room. Taking into account all such aspects, we are of the view that ten months time can be granted for the petitioners to surrender vacant possession of the petition schedule room to the respondent, subject to the following conditions: (i) The respondents-tenant in the Rent Control Petition 16 R.C.Rev.No.14 of 2021 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 room to the petitioner-landlady within ten months from the date of this order. - (ii) The respondents-tenant in the Rent Control Petition shall continue to pay damages for use and occupation of the petition schedule room at the present rate of rent for every succeeding month, without any default; - (iii) Needless to say, in the event of the respondentstenant 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 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** dkr