T. Satheeshan v. Fathima and Maimoona

1 ## **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 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 R.C.REV.NO.58 OF 2023** **AGAINST THE JUDGMENT DATED 30.09.2022 IN R.C.A.NO.15 OF 2019 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITYIII, KASARAGOD FILED AGAINST THE ORDER DATED 26.08.2019 IN R.C.P.NO.5 OF 2017 ON THE FILE OF THE RENT CONTROL COURT (MUNISFF), HOSDURG** ## **REVISION PETITIONER:** **T.SATHEESHAN, AGED 60 YEARS S/O. T.KUTTYAN, PROPRIETOR, NIRMAL BHAVAN, NEAR KAILAS THEATRE, KANHANGAD.P.O, BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT., PIN - 671315 BY ADV T.K.VIPINDAS** ## **RESPONDENTS:** **1 FATHIMA, W/O. YOOSUF, RESIDING AT CHITHARI VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT., PIN - 671315** - **2 MAIMOONA,** **W/O. ABDUL KAREEM, RESIDING AT BEKAL POST, BEKAL FORT, PALLIKKARE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT., PIN - 671315** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON** **09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.P.No.5 of 2017 on the file of the Rent Control Court (Munsiff), Hosdurg, a petition filed by the respondents herein-landladies, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenant from the petition schedule shop rooms in which he is conducting hotel. The present rate of rent is Rs.12,000/- per month. The bonafide need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act, is that the son of the 1[st] respondent herein and the husband of the 2[nd] respondent herein, who require the petition schedule shop rooms for conducting vegetable business. Before the Rent Control Court, the tenant entered appearance and filed counter, opposing the order of eviction sought for in the Rent Control Petition. Before the Rent Control Court, the 1[st] respondent herein and her son were examined as PWs.1 and 2 and Exts.A1 to A3 were marked on the side of the landladies. The Advocate Commissioner, who submitted Ext.C1 Commission report, was examined as PW3. The tenant was examined as RW1 and Exts.B1 to B8(b) were marked on his side. Exts.B4 to B8(b) were marked through a staff of the Municipality, who was examined as RW2. After considering the pleadings and evidence on record, the Rent Control Court arrived 3 at a conclusion that the need projected in R.C.P.No.5 of 2017 for seeking an order of eviction under Section 11(3) of the Act, is bona fide; that the provisions under the first proviso to Section 11(3) of the Act has no application; and that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. Therefore, the Rent Control Court granted an order of eviction under Section 11(3) of the Act and the tenant was directed to surrender vacant possession of the petition schedule shop rooms to the landladies, within two months from the date of that order. 2. Challenging the order of eviction granted by the Rent Control Court dated 26.08.2019 in R.C.P.No.5 of 2017, the tenant filed R.C.A.No.15 of 2019 before the Rent Control Appellate Authority-III (District Judge-III), Kasaragod, under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 30.09.2022, thereby confirming the order of eviction granted by the Rent Control Court under Section 11(3) of the Act. 3. Challenging the judgment of the Rent Control Appellate Authority dated 30.09.2022 in R.C.A.No.15 of 2019 and also the order of the Rent Control Court dated 26.08.2019 in R.C.P.No.5 of 2017, the petitioner-tenant is before this Court in this Rent Control Revision invoking the revisional jurisdiction of 4 this Court under Section 20 of the Act. 4. Heard the learned counsel for the petitioner-tenant. 5. The issue that arises for consideration in this Rent Control Revision is as to whether the judgment dated 30.09.2022 of the Rent Control Appellate Authority in R.C.A.No.15 of 2019 and the order dated 26.08.2019 of the Rent Control Court in R.C.P.No.5 of 2017 warrant interference, in the exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 6. The learned counsel for the petitioner-tenant would contend that the reasoning of the Rent Control Court while granting the order of eviction under Section 11(3) of the Act is perverse and patently illegal, which warrants interference in the exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 7. Section 11 of the of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. 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 5 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. 8. 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 6 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. 9. 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. 10. The bona fide need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the son of the 1[st] respondent and the husband of the 2[nd] respondent to start a vegetable shop in the petition schedule shop rooms. The need projected under Section 11(3) of the Act is substantiated by the oral testimony of the 1[st] respondent herein-landlady, who was examined as PW1, and that of her son, who was examined as PW2. The Rent Control Court found that though the tenant has a case in the proof affidavit that the landladies and their dependant family members have sources of income for their livelihood, the tenant has no such pleadings in the counter statement filed in the Rent Control 7 Petition. There is no material to show that either PW2 or the husband of the 2[nd] respondent herein is conducting any business, at present. The landladies were able to establish that PW2 and the husband of the 2[nd] respondent herein are their dependents, for the purpose of the petition schedule shop rooms. After analysing the evidence on record, the Rent Control Court and also the Appellate Authority concurrently found that the need projected in the Rent Control Petition under Section 11(3) of the Act, for seeking eviction of the tenant from the petition schedule shop rooms, is bona fide. The said finding of the Rent Control Court in R.C.P.No.5 of 2017 now stands confirmed in the judgment of the Rent Control Appellate Authority R.C.A.No.15 of 2019. The reasoning of the authorities below in the impugned order and judgment on the above aspect is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 11. 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. 12. In **M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC** 8 **355]** the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in **Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141]** , wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and nondisclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question. 13. In **Vasantha Mallan v. N.S. Aboobacker Siddique** 9 **[2020 (1) KHC 21]** the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its non-occupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises. 14. In **Vasantha Mallan** , relying on the law laid down by the Apex Court in **M.L. Prabhakar [(2001) 2 SCC 355]** the Division Bench held that, it is not incumbent on the landlord to 10 disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for non-occupation of the premises for his alleged needs. 15. In the counter statement, the tenant contended that the landlords are residing more than 10 to 20 kms. away from the petition schedule shop rooms. At Chithari, where the 1[st] respondent herein is residing, a large number of buildings are available, which are suitable to start the proposed business. At 11 Bekal, where the 2[nd] respondent herein is residing, there are vacant rooms in her ownership and possession. Apart from the averments in the proof affidavit filed by the tenant, who was examined as RW1, no evidence was adduced by the tenant to prove the availability of such rooms. Moreover, even if the case of the tenant is accepted, the so called vacant rooms are situated at places more than 10 to 20 kms. away from the petition schedule shop rooms, which cannot be termed as shop rooms in possession of the landladies in the same city, town or village, in order to attract the provisions under the first proviso to Section 11(3) of the Act. The Rent Control Court and the Appellate Authority concurrently found that the provisions under the first proviso to Section 11(3) of the Act have no application to the facts of the case. The reasoning of the authorities below in the impugned order and judgment on the above aspect is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 16. As per the second proviso to Section 11(3) of the Act, 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 12 suitable building available in the locality for such person to carry on such trade or business. 17. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v. Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory 13 provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 18. Insofar as the second proviso to Section 11(3) of the Act is concerned, the tenant who was examined as RW1 admitted during cross-examination that there are several shop rooms lying vacant as per Ext.B8(a) land tax assessment register, which are suitable for hotel and restaurant business. Further, he has not enquired regarding the availability of suitable rooms in the locality to shift his business. In the absence of any 14 reliable materials, the authorities below concurrently found that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. The finding of the authorities below on the above aspect is neither perverse nor patently illegal warranting interference in exercise of the revisional jurisdiction under Section 20 of the Act. 19. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion. 20. 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 15 consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have reappreciated 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 reappreciating 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. ## 21. In **T. Sivasubramaniam v. Kasinath Pujari [(1999)** **7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not 16 an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 22. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not - be entitled to re appreciate the evidence and substitute its own 17 conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist. 23. 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 confined to find out legality, regularity and propriety of the order impugned before it. 24. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , 18 **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 25. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Rent Control Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act. 26. The learned counsel for the petitioner-tenant would submit that the tenant may be given at least six months' time to give vacant possession of the petition schedule shop rooms. The learned counsel would submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the 19 monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule shop rooms to the landladies. 27. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however, granting four months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop rooms to the respondents-landladies, 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 rooms to the petitionerslandladies within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop rooms 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, 20 and shall continue to pay rent for every succeeding months, without any default; (iii) Needless to say, in the event of the respondenttenant 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 rooms will stand cancelled automatically and the petitionerslandladies will be at liberty to proceed with the execution of the order of eviction. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**