Sreedharan K. Nair and Ummer Koya v. Soudha and Chirammal Lonappan George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943** **R.C.REV.NO.134 OF 2021 AGAINST THE JUDGMENT DATED 30.07.2021 IN R.C.A.NO.180 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-V), KZOHIKODE AND THE ORDER DATED 18.02.2016 IN R.C.P.NO.167 OF 2013 OF THE RENT CONTROL COURT** **(PRINCIPAL MUNSIFF-II), KOZHIKODE** ## **REVISION PETITIONERS:** - **1 SREEDHARAN K.NAIR** **AGED 68 YEARS, S/O. KOMAPPAN NAIR, "ACHUTHAM", P.M.KUTTY ROAD, NEAR VELLANGOTTU TEMPLE, SWARALAYA RESIDENTS ASSOCIATION NO.128, KACHERI AMSOM DESOM, KOZHIKODE.** - **2 UMMER KOYA** **AGED 65 YEARS, S/O. MUHAMMED, 19/846, WOOD TECH INDUSTRIES, EAST KALLAI ROAD, KASABA AMSOM DESOM, KOZHIKODE.** **BY ADVS.** - **K.M.FIROZ M.SHAJNA** ## **RESPONDENTS:** - **1 SOUDHA** **AGED 53 YEARS, D/O. MOHAMMED KOYA, BEACH P. O., PEEYEES, NAGARAM AMSOM DESOM, KOZHIKODE - 673 032.** 2 ## R.C.Rev.No. 134 of 2021 - **2 CHIRAMMAL LONAPPAN GEORGE,** **AGED 72 YEARS, S/O. C.P.LONAPPAN, PERUMANOOR AMSOM, ELAAMKULAM VILLAGE, KANAYANOOR TALUK, ERNAKULAM.** **R1 BY ADV K.B.SIVARAMAKRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 134 of 2021 ## **O R D E R** ## Ajithkumar, J. Respondent Nos.1 and 3 in R.C.P.No.167 of 2013 on the file of the Rent Control Court (Principal Munsiff-II), Kozhikode are the revision petitioners. They filed this revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act challenging the judgment dated 30.07.2021 of the Rent Control Appellate Authority (Additional District Judge-V), Kozhikode in R.C.A.No.180 of 2016 and the order of the Rent Control Court dated 18.02.2016 in R.C.P.No.167 of 2013. 2. The 1[st] respondent is the landlord. R.C.P.No.167 of 2013 was filed seeking eviction under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act. It was alleged that rent from November, 2006 at the rate of Rs.1,600/- per month has been in arrears. The reason for claiming eviction under Section 11(3) of the Act was that the second son of the 1[st] respondent-landlord wanted to start a wholesale and retail business of palm oil in the petition schedule shop room. The 4 R.C.Rev.No. 134 of 2021 further allegation is that the 1[st] petitioner and 2[nd] respondent, who were the tenants, sublet the petition schedule shop room to the 2[nd] petitioner herein. 3. The petitioners jointly filed a counter statement. They contended as follows: The 1[st] petitioner and 2[nd] respondent were the tenants conducting business in the petition schedule shop room as a partnership firm. The 2[nd] respondent fell ill, and therefore, the 1[st] petitioner continued the business. The 2[nd] petitioner is the Manager of the business establishment and it is incorrect that the room was sublet to him. The petitioners did not default rent. The need urged by the 1[st] respondent was denied. As a ruse for eviction only such a need was projected. If at all, son of the 1[st] respondent needs to start a business, she is in possession of other vacant rooms suitable for the purpose. The 1[st] petitioner is depending on the income derived from the business in the petition schedule shop room for his livelihood. No other suitable building is available in the locality to shift his business. 5 R.C.Rev.No. 134 of 2021 4. The Rent Control Court, after considering the evidence on record, which consists of oral testimonies of PW1 and RW1 and Exts.A1 to A3 series, B1 to B19 and Exts.C1(1), C1(2) and C2 ordered eviction on all grounds as claimed by the landlord. In the appeal preferred under Section (18)(1)(b) of the Act, the Appellate Authority re-appraised the evidence and found that there was no reason to interfere with the order of eviction. 5. On 08.10.2021, this Court ordered status quo with respect to the petition schedule shop room till 22.10.2021. The order was extended from time to time. 6. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the 1[st] respondent. 7. The 1[st] respondent is the landlord. She along with Kunjeearambalath Ummayabi were the owners of the petition schedule shop room. As per a release deed executed on 10.05.2013, Kunjeearambalath Ummayabi assigned her right in the property in favour of the 1[st] respondent. She, claiming 6 R.C.Rev.No. 134 of 2021 thereby to be the owner of the property, filed R.C.P.No.167 of 2013. The petitioners raised a contention regarding maintainability of the rent control petition, that having it been filed on 29.06.2013, which was within a period of one year from the date of the release deed, i.e., 10.05.2013, it comes within the mischief of the third proviso to Section 11(3) of the Act. 8. Going by the third proviso to Section 11(3) of the Act, a landlord, who acquired right to recover possession under an instrument of transfer inter vivos shall not be entitled to apply for eviction until the expiry of one year from the date of the instrument. The 1[st] respondent was a coowner and as per release deed dated 10.05.2013, she acquired the whole of the property. Such a release cannot be termed as a transfer inter vivos within the meaning of the third proviso to Section 11(3) of the Act. That apart, there is no bar for a co-owner to apply for eviction under the provisions of Section 11 of the Act, provided the other coowners do not oppose it. In **Sai Service Station Ltd. v.** 7 R.C.Rev.No. 134 of 2021 **Dileep Ganesh [2022(1) KLT 845]** , this Court held that even if the eviction is sought for own occupation of the suing co-owner and the petition is filed by him without junction of the other co-owner/s, it is maintainable as long as it is not objected by the non-suing co-owner/s. Viewed in the light of the above, we are of the view that the petition for eviction field by the 1[st] respondent on 29.06.2013 is maintainable. 9. The 1[st] respondent alleged that rent since November, 2006, has been in arrears. Regarding the rate of rent, there is no dispute. Both the courts below after considering the evidence on record in detail found that rent at the rate of Rs.1,600/- per month has been due since November 2006. A part of the amount of rent in arrears was seen paid. After considering the entire evidence on record, the courts below concurrently ordered eviction on the ground of arrears of rent under Section 11(2)(b) of the Act. We do not find any reason to interfere with that finding. 10. The need urged is that the second son of the 1[st] respondent, who holds an MBA degree, but remains 8 R.C.Rev.No. 134 of 2021 unemployed, wants to start a wholesale and retail business in palm oil in the petition schedule shop room. He can depend on his mother, 1[st] respondent, alone for the purpose. He has deposed as PW1 before court regarding his necessity to start the business, his plan of conducting the business and also about his ability to conduct such a business. There is not much challenge to that evidence. However, the petitioners by pointing out that there are other rooms available with the 1[st] respondent, contended that such a need was urged as a ruse for eviction. In support of that contention, the petitioner produced Ext.A4 before the Appellate Authority. Ext.A4 is a copy of the order in R.C.P.No.197 of 2013 on the file of the Rent Control Court (Munsiff-II), Kozhikode. It is contended that the 1[st] respondent got as per Ext.A4 order vacant possession of another room, which was in the possession of another tenant. Although from Ext.A4, it can be seen that there is such an order of eviction, there is no evidence to show that the 1[st] respondent obtained vacant possession of that room. Further, the 1[st] respondent secured that order for 9 R.C.Rev.No. 134 of 2021 the reason that his elder son wanted the said room for starting a paint and plywood business. The said facts speak for itself. Availability of such a room cannot be a reason either belying the bonafides of the need urged by the 1[st] respondent or constraining her to offer special reasons under the first proviso to Section 11(3) of the Act. 11. It was brought in evidence that another room was in the possession of the 1[st] respondent, which also is in the same building. The Commissioner appointed in the rent control petition reported as per Ext.C2, that the said room was so dilapidated and that it could not be made use for any purpose. It was reported that the said room did not have a roof and was totally unfit. In view of the above evidence, possible conclusion is that the first proviso to Section 11(3) has no application in this case. 12. This is a case where the 2[nd] petitioner, who was allegedly inducted as a sub-tenant, is doing business in the petition schedule shop room. It is the 2[nd] petitioner, who gave evidence in court as RW1. The 1[st] Petitioner, the original 10 R.C.Rev.No. 134 of 2021 tenant, though contested the matter, did not chose to adduce any evidence. As such, a claim under the second proviso to Section 11(3) of the Act is not worth consideration. 13. 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 business carried on in such building and there is no other suitable building available in the locality for such person to 11 R.C.Rev.No. 134 of 2021 carry on such trade or business. 14. 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 12 ## R.C.Rev.No. 134 of 2021 praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 15. 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 13 R.C.Rev.No. 134 of 2021 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. 16. Viewed in the light of the above principle, we are of the view that both the courts below rightly held that the 1[st] respondent is entitled to get an order of eviction under Section 11(3) of the Act. We do not find any reason to interfere with the same. 17. As per Section 11(4)(i) 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 the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so. As per the proviso to Section 11(4)(i), an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of 14 R.C.Rev.No. 134 of 2021 the lease and the tenant has failed to terminate the transfer or the sub-lease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof. As per Explanation to Section 11(4)(i) of the Act, where on the partition of a joint family or of the rights of co-tenants, or on the dissolution of a firm, the right of the joint family or the co-tenants or the firm under a lease is vested in a member of the joint family, or a co-tenant or a partner, as the case may be, whether by act of parties or otherwise, no transfer by the tenant of his right under the lease shall be deemed to have taken place within the meaning of this clause. 18. In **Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar [(2010) 1 SCC 217]** the Apex Court summarised the legal position regarding the essence of sub-letting, mode of its proof and onus of proof, as follows; '(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with 15 R.C.Rev.No. 134 of 2021 possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross - examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted 16 R.C.Rev.No. 134 of 2021 premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted. ## 19. In **Usman K. S. v. Vidyavathi @ Vidya Kalesan** **and others [2014 (1) KHC 830]** a Division Bench of this Court held that, as held by the Apex Court in **Celina Coelho Pereira (supra)** , the initial burden of proving sub-lease is on the landlord, and once it is discharged by him, the tenant will have to explain the presence of the alleged tenant in the premises, and he will have to prove that it is not a case of sub-lease. 20. This Court after taking note of the said decisions held in **Gireeshbabu T.P. (supra)** that when a person other than the tenant is found in the petition schedule shop room, at the time of inspection by the Advocate Commissioner, the 17 ## R.C.Rev.No. 134 of 2021 burden is on the tenant to show that there is no sub-lease or transfer of possession in favour of the alleged sub-tenant. 21. In this case, the 1[st] petitioner and the 2[nd] respondent were the tenants. While the 1[st] respondentlandlord alleged that 2[nd] petitioner was a subtenant inducted unauthorisedly, the petitioners claimed that the 2[nd] petitioner was the Manager of the business being run by the 1st petitioner in the petition schedule shop room. At the time when the Commissioner appointed in this case had visited the premises, the 2[nd] petitioner was in occupation of the premises and in charge of the business in the petition schedule room. When it is shown that the 2[nd] petitioner who does not have any privy to the tenancy arrangement has been in occupation of the demised premises, it has become the absolute burden of the tenants to convince the court that either he has not been in occupation or control of the premises or that he is a legally inducted tenant. Oral evidence tendered by RW1 is not sufficient to prove that the 1[st] petitioner is in actual occupation of the premises. No reliable evidence to show that 18 R.C.Rev.No. 134 of 2021 RW1 has been working as a Manager is produced as well. 22. After considering the evidence let in by either side in this respect both the courts below concluded that the tenants parted with exclusive possession of the petition schedule shop room to the 2[nd] petitioner. In the absence of any evidence to prove that his possession is legal, the irresistible conclusion is that he was inducted as a sub-tenant for consideration which entails an order of eviction under Section 11(4)(i) of the Act. We accordingly hold that eviction concurrently ordered by the Rent Control Court and the Appellate Authority does not suffer from any illegality, irregularity or impropriety requiring interference by this Court under Section 20 of the Act. 23. In the light of what are stated above, this Revision Petition is liable only to be dismissed. We do so. 24. The learned counsel for the petitioners at this stage requested to grant a period of six months for vacating the premises, pointing out the difficulty to find out a new room for shifting the business. We deem it appropriate to grant six 19 R.C.Rev.No. 134 of 2021 months' time to the petitioners herein, to surrender vacant possession of the petition schedule shop room to the 1[st] respondent-landlord, subject to the following conditions: - (i) The petitioners herein shall file an affidavit before the Rent Control Court 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 shop room to the 1[st] respondent-landlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop room and further that they will 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; - (ii) The petitioners herein shall deposit the entire arrears of rent as on date before the Rent Control Court or the Execution Court, as the case may be, within six weeks from today, and shall continue to pay damages for use 20 ## R.C.Rev.No. 134 of 2021 and occupation at the current rate of the rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondents-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 1[st] respondent-landlord 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