SIVARAJAN v. KUNJAMMA

## **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 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943** **R.C.REV.NO.45 OF 2022** **AGAINST THE JUDGMENT DATED 08.11.2021 IN R.C.A.NO.68 OF 2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THRISSUR AND THE ORDER DATED 06.09.2013 IN R.C.P.NO.52 OF 2010 OF THE RENT CONTROL COURT (MUNSIFF), CHAVAKKAD** ## **REVISION PETITIONER:** ## **SIVARAJAN** **AGED 63 YEARS, S/O KANJIRAPARAMBIL AYYAPPU, RESIDING AT ANAIKAL DESOM, KANIPPAYYUR VILLAGE, THALAPPILLY TALUK, THRISSUR – 680 683.** **BY ADVS. RAJIT ARJUN S.** ## **RESPONDENT:** ## **KUNJAMMA** **AGED 63 YEARS, W/O KUNDUKULAM VARU, KUNNAMKULAM THEKKE ANGADI, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, THRISSUR – 680 683.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.45 of 2022 ## **O R D E R** ## Ajithkumar, J. The respondent-tenant in R.C.P.No.52 of 2010 of the Rent Control Court (Munsiff), Chavakkad, is the revision petitioner. That Rent Control Petition was filed by the respondent-landlady seeking eviction under Section 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered under Section 11(3) of the Act. An appeal was filed by the petitioner as R.C.A.No.68 of 2014 before the Rent Control Appellate Authority (Additional District Judge-III), Thrissur under Section 18(1)(b) of the Act. The appeal was dismissed. Thereupon, the petitioner has filed this Revision under Section 20 of the Act. 2. The respondent-landlady is now residing along with her daughter at Kunnamkulam. Her only son is conducting a business in steel at Kannur. His daughters are married and they are residing along with their family at Kunnamkulam. Since the respondent is aged, she wants her son to reside along with her, and therefore, he proposed to shift his steel 3 R.C.Rev.No.45 of 2022 business to Kunnamkulam, for which he requires the petition schedule shop rooms. There are five rooms in the building. Three rooms are in occupation of the petitioner and other two rooms are vacant. Son, who is dependent on the respondent, wants all the five rooms to start his business. Hence, eviction was sought on the ground of bonafide need. 3. The petitioner resisted the petition for eviction on the grounds that the need urged was not bonafide, having the landlady been residing along with her son at Kannur for long, the need urged that her son wants to start business at Kunnamkulam for taking care of her affairs is not bonafide and the building is not convenient to conduct such a business. It is incorrect that the son of the respondent conducts the business in a rented premises at Kannur. The need now projected by the respondent is just a pretext and her intention is to rent out the building for a higher rate of rent, after avoiding the petitioner. He is depending on the income derived from the business in the petition schedule shop rooms for his livelihood. No other alternative building is available in the 4 R.C.Rev.No.45 of 2022 locality for shifting his business. 4. The Rent Control Court recorded evidence of PW1 and 2 and RW1. Exts.A1 to A5 were received in evidence. Plea for eviction on the ground of arrears of rent was declined holding that there was no statutory notice, whereas eviction was ordered under section 11(3) of the Act. The order on arrears of rent has become final. The Appellate Authority considered pleas of the petitioner in the appeal filed by him challenging the order of eviction and after re-appreciating the evidence, dismissed the appeal. 5. Today, when this Revision Petition came up for admission, the learned counsel appearing for the petitioner is heard in detail. 6. Daughter of the respondent, Smt.Seni, was examined as PW1. PW2 is the son of the respondent, for whose need eviction was sought. Both of them deposed in detail regarding the requirement of vacant possession of the petition schedule shop rooms. Three shop rooms were let out to the petitioner on three different occasions. Eventually, the 5 R.C.Rev.No.45 of 2022 tenancies were consolidated and now the petitioner is in possession of the premises as per an integrated tenancy arrangement. The respondent was aged 80 years at the time of filing the Rent Control Petition, which was in 2010. It is contended that she wishes and desires to have the company of her only son, PW2, during her old age. Now, she is living with her daughter. PW2 is now conducting steel business in a rented premises at Kannur. He is residing along with his wife at Kannur. His daughters are married to persons hailing from Kunnamkulam, and therefore, they along with their family are residing at Kunnamkulam. In the said circumstances, PW2 decided to start a business in the petition schedule shop rooms and the adjoining two rooms, for which the respondent seeks eviction of the petitioner. 7. The bonafides of the need projected by the respondent was considered by the Rent Control Court in the light of the oral testimonies of PWs 1 and 2. Their evidence has been seriously challenged by the petitioner by contending that PW2 has been conducting business in his own building at 6 R.C.Rev.No.45 of 2022 Kannur and also that even now, his mother is residing at Kannur along with him. The learned Counsel of the petitioner thus would submit that the basic reason for which PW2 wants to shift his business to Kunnamkulam does not really exist. Both PWs.1 and 2 almost in tandem deposed that it has now become a necessity for PW2 to come to Kunnamkulam and reside along with his mother. In the light of that evidence, genuineness of the need has to be considered. 8. 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 7 R.C.Rev.No.45 of 2022 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. 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 8 R.C.Rev.No.45 of 2022 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 **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** 9 R.C.Rev.No.45 of 2022 **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 proviso to Section 11(3) of the Act. 11. It is submitted by the learned Counsel appearing for the petitioner that the landlady has been residing at Kannur along with PW2 and he, having a business in own building at Kannur and settled down there, it is quite unlikely that he would come to Kunnamkulam to establish his business anew. This contention is against probabilities. When PW1, 10 ## R.C.Rev.No.45 of 2022 daughter and PW2, son of the landlady deposed in court regarding the need, with sufficient reason, that evidence cannot be brushed aside. Although it is contended that PW2 has been doing his business at Kannur in his own building, it is not supported by any evidence. RW1 conceded that he deposed so in court on the basis of hearsay information. In the said circumstances, there is no reason to interfere with the findings rendered by the courts below that the need urged is bonafide, after appreciating the evidence on record. The said finding is in terms of the law laid down in the decisions referred to above. 12. The learned counsel appearing for the petitioner pointed out that two vacant rooms are already with the respondent and the explanation for not occupying the same is not satisfactory. What is contended is that PW2 wants to establish his business making use of the said two vacant rooms and also the petition schedule rooms. When the need is explained so, we are of the view that this is a case where the first proviso to Section 11(3) of the Act has no application. 11 R.C.Rev.No.45 of 2022 13. The petitioner claimed protection from eviction under the provisions of second proviso to Section 11(3) of the Act. 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. 14. RW1, the petitioner, deposed in court that his only income for livelihood is the income that is derived from the business in the petition schedule shop rooms. He is doing parcel service business in the petition schedule shop rooms. 12 R.C.Rev.No.45 of 2022 As regards his income, only evidence is his oral testimony. What he is conducting is not a petty business. Considering the nature of the business, he is obliged to maintain accounts and other documents in compliance to the statutory requirements. No such document has been produced. In such circumstances, it cannot be held that sole source of his income is the business in the petition schedule shop rooms. 15. With regard to non-availability of vacant rooms in the locality also, no reliable evidence is brought in. In these circumstances, we hold that the courts below rightly have held that the petitioner is not entitled to the benefit of second proviso to Section 11(3) of the Act. 16. 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.45 of 2022 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. 17. 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.45 of 2022 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. 18. 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.45 of 2022 19. 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. 20. The learned counsel for the petitioner has made a request to afford nine months' time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business. 21. 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 building to the petitioner-landlady within six months from the date of this order and that, he shall not induct 16 R.C.Rev.No.45 of 2022 third parties into possession of the petition schedule building and further he shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; - (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 building 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