Suresh v. P P Najeem, P.P Jameela, Amina and Sianabi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944 R.C.REV.NO.342 OF 2013 AGAINST THE JUDGMENT DATED 20.12.2012 IN R.C.A.NO.132 OF 2010 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), KOZHIKODE AND THE ORDER DATED 30.08.2020 IN R.C.P.NO.108 OF 2009 OF THE RENT CONTROL COURT (MUNSIFF-I), KOZHIKODE** ## **REVISION PETITIONER:** ## **SURESH** **AGED 58 YEARS, S/O.APPUTTY, NARAYANA NIVAS, PARAMMAL ROAD, MALAPPARAMBA, NEDUNGOTTUR AMSOM DESOM, KOZHIKODE-673009.** **BY ADV SRI.NIRMAL. S** ## **RESPONDENTS:** **1 P P NAJEEM AGED 46 YEARS, S/O.SAINABI, HOUSE NO.41/1411, OPP.SERVICE STATION, VEILAYIL ROAD, KALATHIKUNNUR AMSOM DESOM, KOZHIKODE-673001. 2 P.P.JAMEELA AGED 48 YEARS, D/O.SAINABI, HOUSE NO.41/1411, OPP.SERVICE STATION, VEILAYIL ROAD, KALATHIKUNNUR AMSOM DESOM, KOZHIKODE-673001. 3 AMINA AGED 68 YEARS, D/O.PATHUMMABI, MANGATTKANDY HOUSE, P.O.NADUVATTAM, KOZHIKODE-673001.** 2 R.C.Rev.No.342 of 2013 **4 SIANABI, AGED 70 YEARS, HOUSE NO.4/1411, OPP.SERVICE STATION, VEILAYIL ROAD, KALATHIKUNNU AMSOM DESOM, KOZHIKODE-673001.** **BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 30.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.342 of 2013 ## **O R D E R** Ajithkumar, J. The petitioner-tenant has filed this revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the order of the Rent Control Court (Munsiff-I), Kozhikode in R.C.P.No.108 of 2009 directing the petitioner to surrender vacant possession of the petition schedule shop room to the respondents-landlords under 11(2) (b) and 11(3) of the Act and also the concurring judgment dated 20.12.2012 of the Rent Control Appellate Authority (Additional District Judge-III), Kozhikode in R.C.A.No.132 of 2010. 2. The petitioner has been conducting a workshop in the petition schedule shop room, which has been in his occupation as a tenant. The petition schedule shop room originally belonged to Smt.Kadeeja, who died on 19.10.2002. On her death, the shop room devolved upon the respondents. The petitioner has not been paying rent since July 2006. The 2[nd] respondent, who remains unemployed, wants to start a 4 R.C.Rev.No.342 of 2013 catering service in the petition schedule shop room. On such grounds, eviction of the petitioner was sought. 3. The petitioner filed a counter-affidavit contending as follows: Rent upto January, 2007 was paid. After that, he was not apprised of as to whom the rent should be paid and for that reason only there occurred non-payment. The need urged by the respondents is not bona fide. The petitioner has been conducting a scooter workshop in the petition schedule shop room from 1979 and the income therefrom is his sole source of livelihood. No other building is available in the locality. On such grounds, the petitioner sought to dismiss the rent control petition. 4. PW1 and RW1 were examined and Exts.A1 to A5, B1 to B3, C1 and C1(a) were received in evidence. After a detailed appraisal and consideration of the material on record, the Rent Control Court ordered eviction on both the grounds, i.e., arrears of rent and bona fide need for own occupation. Before the Appellate Authority, the petitioner raised the same 5 ## R.C.Rev.No.342 of 2013 contentions and maintained that the Rent Control Court went wrong in ordering eviction. But the Appellate Authority after re-appreciation of evidence, approved the findings of the Rent Control Court. 5. On 24.10.2013, this Court admitted the revision petition. Execution of the order of eviction was stayed initially for two months on condition of payment of arrears of rent to the landlord within one month. The interim order was extended from time to time. 6. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 7. The landlord-tenant relationship virtually has been admitted. The reason that the petitioner was unaware as to whom he should pay the rent has been set forth for his failure to pay the rent was not accepted by the Rent Control Court as well as the Appellate Authority. Both courts below found that rent at the rate of Rs.350/- from May 2006 has been in arrears. On such a finding, eviction under Section 11(2) of the 6 R.C.Rev.No.342 of 2013 Act was ordered. The contention that the petitioner used to pay building tax and the same is liable to be adjusted against the rent, and therefore, rent till 2009 would stand cleared, is not supported by any evidence. No other evidence regarding payment of rent for the period from May, 2006 has been brought on record. In the said circumstances, we are of the view that there is no reason to interfere with the order of eviction on the ground of arrears of rent. 8. The 2[nd] respondent is PW1. She stated that she undertakes catering service even now and she used to prepare food at her residence to supply against orders. In her view, only if she starts a catering unit in a premises exclusively for it, she can profitably carry on the business. It is for that purpose, PW1 requires the petition schedule shop room. It is seen that her oral testimony regarding such aspects has withstood the searching cross-examination. As pointed out by the courts below, there appears no reason to disbelieve PW1. 9. The 2[nd] respondent is one of the co-owners. With 7 ## R.C.Rev.No.342 of 2013 all other co-owners in the party array, the eviction is sought saying that she requires the petition schedule shop room for her own occupation. It has come out that PW1 is residing in a building situated adjacent to the petition schedule shop room. Therefore, if the petition schedule shop room is available to be used for her catering business, that would certainly be convenient for her. Her oral testimony on the above aspects is reliable. Hence, it can well be said that the need urged by the respondents is bona fide. ## 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 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 8 R.C.Rev.No.342 of 2013 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 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 9 ## R.C.Rev.No.342 of 2013 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 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 10 R.C.Rev.No.342 of 2013 ## **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. The courts below interpreted and appreciated the evidence in detail. In the said circumstances, we hold that there is no reason to interfere with the findings of the courts below that the need urged by the respondents is bona fide. 14. There is no evidence to show that any of the 11 R.C.Rev.No.342 of 2013 respondents is in possession of any other building. Therefore, the contention raised by the petitioner with reference to the first proviso to Section 11(3) of the Act does not require consideration. 15. The petitioner claimed the benefit 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. This Court after referring to the earlier decisions on the point held in **Gireeshbabu T. P.** 12 R.C.Rev.No.342 of 2013 (supra) that both limbs under the second proviso to Section 11(3) of the Act are conjunctive and the burden of proof is on the tenant. 16. Other than raising a contention that the sole source of his income is from the scooter workshop in the petition schedule shop room, no worthwhile evidence has been let in to prove that contention. Oral testimony of RW1, the petitioner, which does not contain sufficient details even is not enough for a finding that he depends for his livelihood solely on the income derived from the said scooter workshop. No evidence to show that he has practically been conducting the workshop even is produced. Regarding non-availability of other rooms in the locality, there is no positive evidence. The version of RW1 was that he did not make any enquiry about availability of vacant rooms in the locality. Therefore, there is no reason to interfere with the findings entered into by the courts below that the petitioner is not entitled to get the benefit of second proviso to Section 11(3) of the Act. 17. In **Rukmini Amma Saradamma v. Kallyani** 13 R.C.Rev.No.342 of 2013 **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 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. 14 R.C.Rev.No.342 of 2013 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 reappreciate 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 15 R.C.Rev.No.342 of 2013 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. As held in the aforesaid decisions, the scope of this revision petition is limited. We have pointed out that the courts below appreciated the evidence in detail before arriving at the conclusion. Therefore, it is not available for us to reappreciate the evidence. In the absence of anything on record to show that the findings of the courts below are suffering from any irregularity, illegality or impropriety, we desist from interfering with those findings in exercise of the powers of this Court under Section 20 of the Act. Hence, this revision petition fails and the same is dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr