Thazhethingeri Asok Kumar v. Madappurayil Nazreen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 3[RD] DAY OF JANUARY 2023 / 13TH POUSHA, 1944** **R.C.REV. NO. 115 OF 2022** **AGAINST THE JUDGMENT DATED 22.02.2022 IN R.C.A.NO.191 OF 2015 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), THALASSERY AND THE ORDER DATED 29.09.2015 IN R.C.P.NO.277 OF 2013 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** ## **THAZHETHINGERI ASOK KUMAR,** **AGED 73 YEARS** **S/O. APPU, ASOK HOTEL, HAJI ROAD, KANNUR.** **BY ADVS.** **V.V.SURENDRAN P.A.HARISH** ## **RESPONDENT/S:** ## **MADAPPURAYIL NAZREEN** **D/O. ISMAIL HAJI, RESIDING AT NASWAH, YATHEEMKHANA ROAD, KAKKAD, KANNUR- 670005. BY ADV C.H.ABDUL RASAC (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 03.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.115 of 2022 ## **O R D E R** ## P.G.Ajithkumar, J. The petitioner is the respondent-tenant in R.C.P.No.277 of 2013 on the file of the Rent Control Court (Principal Munsiff), Kannur. The respondent-landlord filed the Rent Control Petition seeking eviction of the petitioner under Sections 11(2)(b) (later not pressed) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The R.C.P. was allowed ordering eviction under Section 11(3) of the Act. The appeal preferred under Section 18(1)(b) of the Act as R.C.A.No.191 of 2015 by the petitioner failed. Challenging the judgment of the Appellate Authority dated 22.02.2022 which confirmed the order of the Rent Control Court dated 29.09.2015, the Petitioner has filed this Revision under Section 20 of the Act. 2. On 15.07.2022, revision was admitted. The submission of the learned counsel appearing for the respondent that no coercive steps against the petitionertenant in execution of the order in RC.P.No.277 of 2019 would 3 R.C.Rev.No.115 of 2022 be initiated was recorded. The said interim order was extended from time to time. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 4. The Rent Control Petition was filed along with R.C.P.No.273 of 2013. The respondent-landlady contended that for her son, who is a dependant on her, needed the petition schedule shop room to accommodate the office of his partnership business, which is now accommodated in a rented premises. The connected R.C.P.No.273 of 2013 was filed stating that the petition schedule shop room therein was required for using it as a godown. The R.C.Ps. were tried together. The respondent as well as his son Sri.Nadish M., for whom vacant possession of the petition schedule premises has been claimed, was examined as PWs.1 and 2. RWs1 and 2 are the tenants. RW1 is the petitioner herein. Exts.A1 to A10, B1 to B14 and Exts.C1 to C5 were marked. After considering the said evidence, the Rent Control Court held that the 4 R.C.Rev.No.115 of 2022 respondent proved the need she had urged and that the petitioner was not entitled to get the benefit of the second proviso to Section 11(3) of the Act. Accordingly, eviction was ordered in both the cases. 5. The petitioner has filed R.C.A.No.191 of 2015 under Section 18(1)(b) of the Act. Before the Appellate Authority, the petitioner took up similar contentions. The Appellate Authority, after considering the evidence in detail, concluded that there was no reason to unsettle the findings of the Rent Control court. Accordingly, the appeal was dismissed. 6. The learned counsel appearing for the petitioner would contend that identity of the petition schedule shop room was not duly proved, but without adverting to that aspect, the authorities below ordered eviction. The learned counsel would submit that the tenancy commenced as early as in 1937 and only subsequently title to a portion of the premises was obtained by the respondent. Although the respondent obtained a portion, the same does not have an independent existence or entity. The premises over which the 5 R.C.Rev.No.115 of 2022 respondent claims right and title is an integral part of a larger building, and the portion described in the petition schedule is not an identifiable area. It is contended that the evidence let in by the respondent would not enable to clearly identify the premises regarding which eviction is sought and as such an order of eviction cannot lawfully be granted; even if granted, the same cannot be executed. 7. In the counter statement filed by the petitioner before the Rent Control Court, he raised a contention that the respondent was the landlord of a portion of the tenanted premises and the remaining part belongs to Smt.Madathil Rukhiya and her children. In the additional counter statement, it was averred that area of the room to which the respondent claims title, and is in possession of the petitioner remains as an integral part of a larger area and that physical partition of the portions owned by different landlords was not so far effected. 8. A commission was taken out to identify the petition schedule shop room involved in R.C.P.No.277 of 2013. In Ext.C1 report, the Commissioner has reported that the area 6 R.C.Rev.No.115 of 2022 shown in Ext.C2 plan as 'ABCDEFA' shown with red lines was identified to be the petition schedule shop room. On a perusal of Ext.C2, it is seen that the petition schedule shop rooms is part of a larger building. There is remaining part of the same room, which does not belong to the respondent. In this regard, RW1, the petitioner deposed before court that there is no much difficulty to separate the petition schedule premises from the remaining part of the building. 9. The position emerges from the evidence on record is that a common building belonging to the predecessor-ininterest of the respondent was let out to the tenant. Portions of the said larger building and the land appurtenant thereto were assigned in favour of the respondent as well as Rukhiya Beevi, although the common tenant continued in occupation of the whole premises. Although the integrity of the building continued, different landlords took different areas of the building and entered into separate lease arrangements with the tenant. Ext.A4 is the lease deed with respect to the petition schedule shop room in R.C.P.No.277 of 2013. When 7 R.C.Rev.No.115 of 2022 the petitioner entered into a tenancy arrangement as Ext.A4 with the respondent wherein the description of the tenanted premises has been clearly stated, the petitioner cannot now turn around and say that the premises is not identifiable. The petitioner has no case that he resisted creation of such a tenancy arrangement; on the other hand, he on accepting the arrangement by executing Ext.A4 on 01.05.1993, continued to pay the rent as fixed in it, which was subsequently increased by mutual consent. From Exts.A4 and C2 identity of premises demised as per Ext.A4 can reasonably be ascertained. Going by the version of RW1, the petition schedule premises can be separated by putting up a wall. It is true that once separated, the petitioner may not be able to conveniently enjoy the part of the tenanted premises that remains with him. That, however, cannot be a reason disentitling the respondent from claiming eviction of her tenant from her building. In such circumstances, we are of the view that the contention of the petitioner with reference to the identity of the petition schedule building is untenable. 8 R.C.Rev.No.115 of 2022 10. A contention denying title of the respondent was raised, but it was not pursued by him before us. The learned Counsel appearing for the petitioner would contend that the courts below did not consider the contention raised by the petitioner, which would belie the bona fides of the claim for eviction of the petitioner. PW2 wanted to use the petition schedule premises as an office of his partnership business. 11. Ext.A8 is the certificate of registration obtained in the name of the firm from the Commercial Taxes Department. Ext.A7 is a copy of the partnership deed. Both PWs.1 and 2 deposed regarding the need they have urged. The office of the partnership firm is now accommodated in a tenanted premises. The petition schedule shop room abuts the public road and it is a suitable premises for accommodating the office of the partnership firm. The versions of PWs.1 and 2 in the said terms were not successfully cross-examined. When the intention of the respondent is to provide the petition schedule shop room to shift from a rented building the office of the partnership firm to which her son is a partner, it cannot 9 ## R.C.Rev.No.115 of 2022 be said that the said need is one smacked by mala fides. When the petition schedule shop room can be utilised to accommodate the office of the partnership firm, it is unjust to ask PW2 to continue the office in the tenanted premises. In that view of the matter, the need urged by the respondent is genuine and honest. 12. 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 any such direction if the landlord has another building of his own in his possession in the same city, town or village except 10 R.C.Rev.No.115 of 2022 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. 13. 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 11 R.C.Rev.No.115 of 2022 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. 14. 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 12 R.C.Rev.No.115 of 2022 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 to 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. 15. In the light of the proposition of law laid down in the aforesaid decisions, the court should ensure that the need urged by the respondent is sincere, honest and genuine if to order eviction. Both the courts below after appreciating the evidence on record came to the concurrent finding that the need urged by the respondent is bona fide. We do not find any reason to interfere with the said finding. 13 R.C.Rev.No.115 of 2022 16. Evidence is let in to show that the respondent has other vacant buildings in her possession. But the evidence does not show that any vacant building or room that can be used for the projected purpose of PW2 is available with the respondent. 17. The petitioner contended that he is depending for his livelihood on the income derived from the hotel business in the petition schedule premises. Thereby he claims benefit of the second proviso to Section 11(3) of the Act. 18. 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 14 R.C.Rev.No.115 of 2022 insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. This view regarding the burden of proof has been approved by the Apex Court in **Kunhamma @ Lakshmi Ammas Children and another v. Akkali Purushothaman and others [(2007) 11 SCC 181]** , where it was observed, “From a perusal of the judgment of the Full Bench of the Kerala High Court reported in Francis v. Sreedevi Varassiar [2003 (2) KLT 230] we observe that the onus lies on the tenant to prove that he was dependent on the income derived from the business being carried on from the demised premises and that there was no other suitable building to which he could shift his business.” 19. The Rent Control Court as well as the Appellate Authority considered in detail the evidence let in by the petitioner pertaining to the second proviso to Section 11(3) of the Act. It was observed that no independent or documentary evidence was let in. Accordingly, it was held that the petitioner failed to prove that the income from the business in the petition schedule shop room alone is his source of 15 R.C.Rev.No.115 of 2022 livelihood. Similarly, it was held by both the authorities that the petitioner did not adduce satisfactory evidence to show that no other suitable building is available in the locality to shift his business. Even after eviction from the petition schedule premises, a portion of the building will be in his occupation. A question whether the petitioner would be able to continue his business in that part of the building does not germane within the scope of enquiry in these proceedings. In such circumstances, we are of the view that there is no reason to interfere with the findings of the authorities below with reference to the first and second proviso to Section 11(3) of the Act. 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 consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated the entire evidence, the Apex Court held that, 16 R.C.Rev.No.115 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. 21. 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 17 R.C.Rev.No.115 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. 22. 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. 18 R.C.Rev.No.115 of 2022 23. Viewed in the light of the law laid down in 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. 24. The learned counsel for the petitioner has made a request to afford eight months' time for vacating the premises stating that such a period is required to make alternative arrangement for continuance of his hotel business. 25. 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 petitioner-landlady within six months 19 R.C.Rev.No.115 of 2022 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; - (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 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