THEMBRAYIL T.V.KURIAKOSE v. K.R.THANKAPPAN

## **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 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 R.C.REV.NO.65 OF 2022** **AGAINST THE JUDGMENT DATED 29.01.2022 PASSED IN R.C.A.NO. 18 OF 2020 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT NO.I), KALPETTA, WAYANAD, ARISES FROM THE ORDER DATED 29.02.2020 PASSED IN R.C.P.NO.31 OF 2015 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF- MAGISTRATE), SULTHAN BATHERI** ## **REVISION PETITIONER:** **THEMBRAYIL T.V.KURIAKOSE** **AGED 74 YEARS S/O.VARGHESE, RESIDING AT MARAKKADAVU, VELIYAMBAM P.O, PULPPALLY, MONARCH REXIN SHOP, PULPPALLY , SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN-673 579** **BY ADVS. ABU MATHEW AJU MATHEW** ## **RESPONDENTS:** **K.R.THANKAPPAN AGED 71 YEARS** **S/O.RAMAN NAIR, KARAKKATT ILANJIKKAL , NADAVAYAL AMSAM, VELIYAMBAM DESOM, KAPPIKUNNU, PULPALLY , SULTHAN BATHERY TLAUK, WAYANADU DISTRICT, PIN-673 579** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No. 65 of 2022 ## **O R D E R** ## Ajithkumar, J. The petitioner is the tenant-respondent in R.C.P.No.31 of 2015 on the file of the Rent Control Court (Munsiff), Sulthanbathery. The respondent-landlord filed the Rent Control Petition seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Petition was allowed as per order dated 29.02.2020. The petitioner preferred an appeal against that order under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-I), Kalpetta, but it ended in dismissal. Feeling aggrieved thereof, this Revision under Section 20 of Act has been filed. 2. Today, when this matter came up for admission, we heard the learned counsel appearing for the petitioner in detail. 3. R.C.P.No.31 of 2015 was filed by the respondent contending that his sons, Sonikumar and Vivek, did not have any job and therefore the respondent needs the petition 3 R.C.Rev.No. 65 of 2022 schedule shop room for them to start a hardware business. Since the respondent is not in possession of any other vacant room, eviction of the petitioner from the petition schedule shop room has become inevitable. The petitioner resisted the petition for eviction contending that the need urged by the respondent was not bona fide, inasmuch as his children are otherwise engaged, the respondent is in possession of other vacant rooms, the petitioner is depending for his livelihood solely on the income derived from the business in the petition schedule shop room and no other suitable building or room is available in the locality to shift his business. 4. The Rent Control Court recorded oral evidence of PW1 and RW1 and received in evidence Exts.A1, A2 and B1. The Rent Control Court took the view that the need urged by the respondent was bona fide, there was no evidence to prove that the respondent has been in possession of any other vacant room and that the petitioner is not entitled to the benefit of the second proviso to Section 11(3) of the Act. The order of eviction rendered by the Rent Control Court on the 4 R.C.Rev.No. 65 of 2022 basis of such findings was assailed before the Appellate Authority, not only on the very same grounds, but also on the grounds that the elder son of the respondent already started a business and the wife of the respondent is in possession of other vacant rooms. The Appellate Authority considered those contentions in detail. After a detailed reappreciation of the evidence on record, the Appellate Authority concurred with the findings of the Rent Control Court. 5. The learned counsel appearing for the petitioner would contend that having averred in the petition that two sons of the respondent had to start a hardware business in the petition schedule shop room, the respondent while examining as PW1, totally deviated from the said stand by stating that it was his younger son, who proposed to start the business. Such a stand was taken only during his crossexamination and that too as he was compelled to admit the fact that his elder son had already started a consultancy services in a room belonging to his wife. It is further submitted that the wife of the respondent is in possession of 5 R.C.Rev.No. 65 of 2022 vacant rooms and she recently had got a room vacated by evicting the tenant therein and the said circumstances also belie the bona fides of the need urged by the respondent. 6. PW1 in his chief-examination asserted that the room was required for both his sons to start a hardware business. When pointed out that his elder son already started a consultancy service, PW1 explained that what he intended was to start the business for his younger son in the petition schdule shop room. True, there has been such a deviation from the pleadings, while giving evidence in court. It is seen that the wife of the respondent got a room belonging to her vacated from the possession of the tenant therein and that room was put in use by her elder son to start a venture of his own. There is nothing in evidence to show how she got that room vacated; whether by voluntary surrender by the tenant or by filing a petition for eviction. Whatever be the mode, the vacant room available with the wife of the respondent was made use of by their elder son. The need put forth in this case is, what was planned by the respondent at the time of filing 6 R.C.Rev.No. 65 of 2022 the petition. In the light of the subsequent developments, his elder son started a separate establishment of his own. Of course, it was required to state that fact before court at the earliest. However, in the light of his explanation during crossexamination, it cannot be said that he had any mala fides in doing so. At any rate, such a development would not affect the bona fides of the need inasmuch as his younger son remains unemployed and it is shown that he genuinely wanted to start a hardware business. In the said circumstances, the finding entered into by the Appellate Authority that the need urged by the respondent is bona fide, is not liable to be interfered with. 7. Although it was contended by the petitioner that the wife of the respondent is in possession of vacant rooms, no evidence in that regard has been brought in. A mere assertion is not enough to find that vacant rooms are available with the wife of the respondent. Even if a room is available with the wife of the respondent-landlord, that may not be a reason to attract the mischief of the first proviso to 7 ## R.C.Rev.No. 65 of 2022 Section 11(3) of the Act. However, that can be a reason to hold that the need urged is not sincere or honest. In the absence of any evidence to show that the wife of the respondent has a vacant room in her possession, such a situation does not arise in this case. 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 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 8 R.C.Rev.No. 65 of 2022 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 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 9 ## R.C.Rev.No. 65 of 2022 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** **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 10 ## R.C.Rev.No. 65 of 2022 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. 11. In the light of the position of law as obtained from the aforesaid decisions, it cannot be said that the need urged by the respondent is not bona fide. Therefore, we confirm the findings in that regard entered into by both the courts below. 12. The petitioner claimed benefit of the 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 11 R.C.Rev.No. 65 of 2022 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. 13. Only evidence to prove the said contention is oral testimony of RW1, the petitioner. The Appellate Authority observed that there was no pleading that the petitioner had been depending for his livelihood solely on the income derived from the petition schedule shop room. It may be noted that the respondent raised a contention that the petitioner is in possession of a large extent of property and he is immensely rich. Even in the wake of such a contention, the petitioner did not produce any evidence although he, admittedly, has been maintaining a profit and loss account regarding his business. 12 ## R.C.Rev.No. 65 of 2022 In the said circumstances, oral testimony of RW1 that he has to depend on the sole income derived from the petition schedule shop room for his livelihood, does not help him to get the benefit of the second proviso to Section 11(3) of the Act. Similarly, the petitioner did not venture to bring in any evidence regarding non-availability of vacant suitable rooms in the locality as well. On taking into account those aspects, the Rent Control Court as well as the Appellate Authority held that the petitioner is not entitled to the protection of the second proviso to Section 11(3) of the Act. We find no reason to interfere with the said finding. 14. 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, even the wider language of Section 20 of the Act cannot 13 R.C.Rev.No. 65 of 2022 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. 15. 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 14 R.C.Rev.No. 65 of 2022 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. 16. 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. 17. Viewed in the light of the aforesaid decisions, we 15 R.C.Rev.No. 65 of 2022 find no reason to interfere with the concurrent 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. 18. The learned counsel for the petitioner has made a request to afford one year time for vacating the premises pointing out the difficulty in availing another room and making necessary arrangements for shifting his business. 19. 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 16 R.C.Rev.No. 65 of 2022 room to the petitioner-landlord within six months 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 17 R.C.Rev.No. 65 of 2022 petitioner-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