Shanmughan v. Suseelan (R.C.Rev.No.78 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** **THURSDAY, THE 25[TH] DAY OF AUGUST 2022 / 3RD BHADRA, 1944 R.C.REV.NO. 78 OF 2020** **AGAINST THE ORDER DATED 23.01.2020 IN R.C.A.NO.12 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (III ADDITIONAL DISTRICT JUDGE), KOLLAM AND THE ORDER DATED 27.11.2017 IN RC(OP) NO.20 OF 2020 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), KOLLAM.** ## **REVISION PETITIONER:** **SHANMUGHAN, AGED 59 YEARS, S/O RAJAPPAN, VRINDAVAN NAGAR-110, KADAPPAKKADA P.O., KOLLAM, PIN – 691 008.** **BY ADV S.SOMAN** ## **RESPONDENTS:** **1 SUSEELAN AGED 82 YEARS, S/O MADHAVAN, VILAYIL KIZHAKKATHIL, 31-NTV NAGAR, KADAPPAKKADA DIVISION, KOLLAM, PIN – 698 008. 2* SUJATHA W/O LATE SUSEELAN, VILAYIL KIZHAKKATHIL, 31-NTV NAGAR, KADAPPAKKADA DIVISION, KOLLAM - 698 008. 3* BIJU, S/O LATE SUSEELAN, VILAYIL KIZHAKKATHIL, 31-NTV NAGAR, KADAPPAKKADA DIVISION, KOLLAM - 698 008.** 2 ## R.C.Rev.No.78 of 2020 - **4* HARISH,** **S/O LATE SUSEELAN, VILAYIL KIZHAKKATHIL, 31-NTV NAGAR, KADAPPAKKADA DIVISION, KOLLAM - 698 008.** - **5* PRADEEP,** **S/O LATE SUSEELAN, VILAYIL KIZHAKKATHIL, 31-NTV NAGAR, KADAPPAKKADA DIVISION, KOLLAM - 698 008.** - **6* DEEPA,** **S/O LATE SUSEELAN, VILAYIL KIZHAKKATHIL, 31-NTV NAGAR, KADAPPAKKADA DIVISION, KOLLAM - 698 008.** - **7** PRAVEEN** **S/O DEEPA (ADDL.R6), AGED 26 YEARS, RESIDING AT VP/9/625, VELIYIL KIZHAKKATHIL, PATTATHANAM CHERRY, VADAKKEVILA VILLAGE, KADAPPAKKADA P.O, KOLLAM DISTRICT.** - ***IS IMPLEADED AS ADDL.RESPONDENT NO.2 TO 6 AS PER ORDER DATED13.12.2021 IN IA NO.2/2021.** - ****IS IMPLEADED AS ADDL.R7 AS PER ORDER DATED 13.12.2021 IN IA 3/2022.** **BY ADV SMT.K.G.BINDU** ## **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL** **HEARING ON 25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.78 of 2020 ## **O R D E R** ## Ajithkumar, J. The petitioner is the tenant and the respondent in R.C.P.No.20 of 2010 on the file of the Rent Control Court (Additional Munsiff), Kollam. The Rent Control Petition was filed by the landlord, who is now no more, seeking eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per the order dated 27.11.2017 eviction was ordered under Section 11(3) of the Act. An appeal under Section 18(1)(b) of the Act was filed by the petitioner before the Rent Control Appellate Authority (III Additional District Judge), Kollam. The appeal was dismissed. Aggrieved thereby, the petitioner has filed this revision under Section 20 of the Act. 2. On 21.05.2020, this Revision was admitted to file and notice was ordered to be served on the respondent. As per the order in I.A.No.1 of 2020, execution of the order of eviction was stayed for a period of one month. The order of stay was extended from time to time. 4 R.C.Rev.No.78 of 2020 3. The respondent died on 07.02.2021. Additional respondents 2 to 6 were impleaded as his legal representatives by the order dated 13.12.2021 in I.A.No.2 of 2021. I.A.No.3 of 2021 was filed by the additional 7[th] respondent claiming impleadment stating that he along with additional 6[th] respondent obtained the petition schedule premises on the basis of a Will executed by the original landlord. That application was allowed on 13.12.2021. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 5. Eviction was sought on the ground that Smt.Deepa, PW2, who is the daughter of the original landlord, wants to start a toy and fancy shop in the tenanted premises. It was averred that PW2 was a dependant of the landlord-Suseelan and no other suitable room or building was available with either of them to house the proposed business. The petitioner resisted the claim for eviction contending that the husband of PW2 is a successful businessman and she does not require to start such a business to eke out her livelihood. She has no 5 R.C.Rev.No.78 of 2020 intention for the same. But the eviction was sought just as a pretext, since demand for enhancement of rent was not heeded. It was further contended that several other rooms are in the possession of the landlord. Benefit of the second proviso to Section 11(3) of the Act was claimed by the petitioner, as well. 6. PWs.1 and 2 were examined on the side of the respondents and Rws.1 to 4 were examined on the side of the petitioner. Exts.A1 to A11, B1 to B13, C1 to C4 and X1 were marked. The Rent Control Court as well as the Appellate Authority considered the evidence in detail and both the authorities concurrently held that the need urged by the respondents was bona fide and the petitioner was not entitled to get protection from eviction either under the first proviso or second proviso to Section 11(3) of the Act. 7. The learned counsel appearing for the petitioner would contend that PW2 and her husband are very affluent having enough income from their business establishments and they without any bona fides seek eviction of the petitioner, 6 R.C.Rev.No.78 of 2020 whose only source of livelihood is the income derived from the business in the petition schedule shop room. He is conducting jewellery business in the tenanted premises. It is alleged that the courts below did not consider the evidence in its proper perspective. Instead, encapsulating various decisions rendered by the High Court, findings were entered into. It is contended that had the evidence been appreciated in the proper perspective, no order of eviction could have been rendered. 8. Pointing out the fact that there are several vacant rooms in the same building, which has three floors even as per the admission of PW1, it is contended that this is a case falls within the mischief of the first proviso to Section 11(3) of the Act. As regards the findings of the courts below that the petitioner has another business and therefore he is disentitled to claim the benefit of the second proviso, the learned counsel would submit that the other business was closed much earlier and the oral testimony of RW1 in that regard was discarded by the courts below without assigning any reason. 7 R.C.Rev.No.78 of 2020 9. The learned counsel appearing for the respondents, on the other hand, would submit that the oral evidence of PWs.1 and 2 is cogent enough to prove that the need that they have urged is absolutely bona fide and that the rooms available in the first and second floors of the building are not at all convenient or suitable for the proposed business. The nature of business proposed to be started is such that it can profitably be conducted only in a ground floor room, and therefore, the first proviso can hardly be applied in this case. It is further contended that the husband of PW2 is having business, but that does not disentitle PW2 to start a business of her own. 10. 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 8 R.C.Rev.No.78 of 2020 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 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. 11. 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 9 R.C.Rev.No.78 of 2020 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. 12. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled 10 R.C.Rev.No.78 of 2020 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. PW1 is the landlord. PW2 is the 6[th] respondent for whose need eviction was sought. Both of them deposed in 11 ## R.C.Rev.No.78 of 2020 court their idea to start a business in toys and fancy items in the petition schedule shop room. It is in the ground floor of the three-storied building. The respondents contend that a few rooms are lying vacant in the first and second floors of the building, but such rooms are not at all suitable for the business PW2 proposes to start. From the evidence available on record, it may be true to say that the husband of PW2 is a businessman having sufficient income. However, that does not mean that PW2, who remains unemployed, cannot have a desire to start a business of her own. Applying the principles of law laid down in the aforesaid decisions, it can only be said that the need urged by the respondents is bona fide. The fact that a few rooms are available in the same building, which evidently are not suitable for the business proposed by PW2 and that some of such rooms were let out immediately prior to or after filing of the Rent Control Petition are not enough to discard the claim for eviction on the ground of bona fide need of the building for own occupation. 12 R.C.Rev.No.78 of 2020 14. Pointing out that PW2 has enough means of livelihood, it was contended that she was not a dependent of the original landlord. That contention is not legally sustainable. Moreover, that has faded away due to the subsequent event that the landlord died and under a Will, Annexure R7(b) produced along with I.A.No.4 of 2021, PW2 and her son, who is the 7[th] respondent, being the legatees inherited the tenanted premises. Considering all the said facts and circumstances, we are of the view that the courts below rightly held that the need urged by the respondents was bona fide. For the same reasons mentioned above, the first proviso to Section 11(3) of the Act has no application in this case. 15. The claim of the petitioner that his only source of income is from the business in the petition schedule shop room was strongly refuted by the respondents. Ext.A9 was produced by the respondents in order to show that the petitioner has another business. Ext.A9 is a copy of the plaint in O.S.No.506 of 2013 on the file of the Munsiff’s Court, Kollam. The address of the respondent in it is that of a 13 R.C.Rev.No.78 of 2020 different business concern. Both the authorities found that the said declaration by the petitioner, who was examined as RW1, is enough to establish that he has another business establishment. Although it was contended that such a business was stopped much earlier, no definite evidence in that regard has come on record. That apart, the oral testimony of RW1 alone is practically available to prove the fact that his sole source of income is the business in the petition schedule shop room. An income statement was produced by him, but it relates to the business concern and not the exhaustive statement of income of the petitioner. In the circumstances, we are of the view that evidence is insufficient to prove that the petitioner can depend for his livelihood only on the income from the jewellery business in the petition schedule shop room. 16. Ext.X1 is the certified copy of the vacancy register issued by the Accommodation Controller. That document, in the absence of any other independent evidence, is insufficient to establish that there has not been any vacant room or 14 R.C.Rev.No.78 of 2020 building in the locality. No commission report was brought on record in regard to that fact. Therefore, we hold that the petitioner is not entitled to claim benefit of the second proviso to Section 11(3) of the Act and the concurrent findings of the courts below in this regard is not liable to be interfered with. 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, 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 15 R.C.Rev.No.78 of 2020 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 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 16 R.C.Rev.No.78 of 2020 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. 20. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the concurrent 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. 17 R.C.Rev.No.78 of 2020 21. The learned counsel for the petitioner has made a request to afford six month's time for vacating the premises pointing out the difficulty in finding another room and making necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant the same. 22. 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 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 petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further he 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; 18 ## R.C.Rev.No.78 of 2020 - (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 months, 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 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** dkr 19 R.C.Rev.No.78 of 2020 ## **APPENDIX OF R.C.REV.NO.78 OF 2020** ## **PETITIONER EXHIBITS** **NIL** ## **RESPONDENT ANNEXURES** **ANNEXURE R7(A) DEATH CERTIFICDATE OF SRI.SUSEELAN DATED 24.02.2021. ANNEXURE R7(B) CERTIFIED COPY OF WILL NO.60/09/III OF KOLLAM SUB REGISTRAR OFFICE DATED 20.04.2009 EXECUTED BY SUSEELAN. ANNEXURE R7(C) PROPERTY TAX RECEIPT DATED 20.04.2021.**