Thomas George & Anitha Juby v. K.S. Santosh Kumar

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 ``` ``` RCREV. NO.50OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 27.07.2023 IN RCA NO.4 OF 2021 OF DISTRICT COURT& SESSIONS COURT,PATHANAMTHITTA ARISING OUT OF THE ORDER DATED 29.06.2021 IN RCP NO.2 OF 2017 OF MUNSIFF COURT,PATHANAMTHITTA ``` ## **`REVISION PETITIONERS/APPELLANTS/RESPONDENTS:`** ``` 1THOMAS GEORGE AGED 80 YEARS S/O THOMAS, CHANGAYIL HOUSE, CHURULICODE P.O, NANNUVAKKADU MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN - 689645 ``` ``` 2ANITHA JUBY AGED 50 YEARS D/O THOMAS GEORGE,TEENA BHAVAN, KOLLANPADY, VARIYAPURAM, ELANTHOOR EAST P.O, ELANTHOOR VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN - 689643 ``` ``` BY ADVS. ``` ``` MANU RAMACHANDRAN R.RAJESH (VARKALA) T.S.SARATH M.KIRANLAL SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. SHIFANA M. ``` 2 R.C.(Rev) No.50 of 2024 ``` RESPONDENT/RESPONDENT/PETITIONER NO.1: ``` ``` K.S SANTHOSH KUMAR AGED 51 YEARS S/O K.A.S PILLAI, SANTHOSH NIVAS, RANNI P.O, THOTTAMON MURI, RANNI VILLAGE & TALUK, PATHANAMTHITTA DISTRICT, PIN - 689672 ``` ``` BY ADVS. JACOB P. ALEX JOSEPH P.ALEX(K/1-C/2002) AMAL AMIR ALI(K/000773/2019) MANU SANKAR P.(K/000823/2018) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.C.(Rev) No.50 of 2024 ## **O R D E R** ## G. Girish, J. The tenants in R.C.P.No.2 of 2017 of the Rent Control Court, Pathanamthitta are the revision petitioners herein. The Rent Control Court passed an order of their eviction on 29.06.2021 under Section 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The Rent Control Appellate Authority, Pathanamthitta confirmed the above order of eviction of the Rent Control Court on 27.07.2023 as per the judgment in R.C.A.No.4 of 2021. Aggrieved by the above concurrent findings of the Rent Control Court and Appellate Authority, the petitioners are here with this revision. 2. The respondent-landlord alleged that the tenants committed default in the payment of rent from the month of May, 2016 onwards. The notice issued by the landlord demanding payment of arrears of rent was left unresponded by the petitionerstenants. The landlord also contended that the tenants obtained reasonably sufficient building for their requirement in the same locality. In addition to the above contentions, the respondentlandlord stated that the petition schedule building was required for the textile business proposed to be conducted by his wife. It is on the basis of the above plea that the respondent-landlord sought the 4 R.C.(Rev) No.50 of 2024 eviction of the petitioners-tenants on the grounds envisaged under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Act. Before the Rent Control Court, Pathanamthitta, the respondent-landlord’s wife and another witness tendered oral evidence as PW1 and PW2 respectively. Exts.A1 to A8 were marked as documents from the part of the landlord. The 2[nd] revision petitioner was examined as RW1, but no documents were marked from the part of tenants. Exts.X1 series were marked as third party documents. So also, the Commission Report prepared by an Advocate Commissioner appointed by the Rent Control Court was marked as Exts.C1 series. After an evaluation of the above evidence, the Rent Control Court found that the respondent-landlord is entitled to have possession of the petition schedule building on the grounds envisaged under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Act. In the appeal preferred by the tenants as R.C.A.No.4 of 2021, the Rent Control Appellate Authority embarked upon a re-appraisal of the above evidence and upheld the findings of the Rent Control Court. Now that the revision petitioners would contend that the Rent Control Court as well as the Appellate Authority went wrong in analysing evidence and applying the law in the correct perspective. 3. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 5 R.C.(Rev) No.50 of 2024 4. The point to be decided in this revision is whether the concurrent findings of the Rent Control Court and the Appellate Authority directing the eviction of the revision petitioners-tenants from the petition schedule building under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Act requires any interference. 5. As already stated above, the respondent-landlord would contend that the tenants defaulted payment of rent from the month of May, 2016 onwards. The petitioners-tenants countered the above allegation by stating that they had paid the rent to the mother of the respondent-landlord who was his power of attorney holder, arraigned as the 2[nd] petitioner in R.C.P.No.2 of 2017. However, the tenants could not produce any document in support of any such payment made to the mother of the respondent-landlord. Another objection raised by the tenants was that they had paid an amount of Rs.8,00,000/- as security to the landlord in addition to the expenses incurred to the tune of Rs.6,00,000/- for furnishing the petition schedule building. The above contention of the tenants also remained unsupported by any documentary evidence. Taking into account of the absence of any evidence regarding the payment of rent by the tenants, and also the failure of the tenants to send any reply notice to the statutory notice issued by the respondentlandlord, the Rent Control Court and the Appellate Authority rightly 6 R.C.(Rev) No.50 of 2024 repelled the objections raised by the tenants against the claim of the landlord under Sections 11(2)(b) of the Act. It is also pertinent to note here that the contentions raised by the revision petitionerstenants about the payment of security deposit to the landlord, and the claim regarding expenses incurred for the renovation of the building, cannot be taken into account in a proceeding under Section 11(2)(b) of the Act, in view of the law laid down by this Court in **Abdul Gafoor M.C. v. K. Abdurahiman and another [2015 (3) KHC 775]** , **Gopala Panicker Baiju and Another v. Mallika [2018 (5) KHC 95]** and **Abdul Razak P.M. v. K.C.Thomas and others [2022 (4) KHC 260]** . There is absolutely no scope for any interference upon the concurrent findings of the trial court and Appellate Authority on the above point. 6. The wife of the landlord had sworn before the Rent Control Court as PW1 with regard to her need to have possession of petition schedule building for the commencement of textile business. Her evidence in the above regard was sought to be assailed by the petitioners-tenants stating the reason that she was not able to explain in detail about the proposed business to be conducted in the petition schedule building. Another objection put forward by the tenants on this point is that there was absolutely no need for the landlord’s wife to conduct a textile shop since she and her husband 7 R.C.(Rev) No.50 of 2024 employed in Kuwait, are abundantly affluent. The challenge raised by the tenants in the above regard has been repelled by the Rent Control Court and the Appellate Authority by relying on the case laws on the relevant points. 7. 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 praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 8 R.C.(Rev) No.50 of 2024 8. In **Nalakath Saidali Haji v. Kalluparamba Musthafa** **and others [2015 (4) KHC 815]** , a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra, and held that the question as to whether a particular need is bona fide or not has to be judged by the Court, placing itself in the position of landlord. ## 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. In **Gireeshbabu T.P. v. Jameela and others [2021** **(5) KHC SN 30]** , a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held 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, 9 R.C.(Rev) No.50 of 2024 the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act but, of course, subject to the first and second provisos to Section 11(3). ## 11. In **Aboobacker.C.P v. K.T.Sreelatha Nambiar [2022** **KHC 5100]** also, a Division Bench of this Court in which one among us, [Anil K. Narendran, J.] was a party, has held that once, on the basis of 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 the said Act. 12. In the present case, there is absolutely no reason to suspect the need projected by the respondent-landlord to have the petition schedule building for the purpose of starting a textile shop for his wife, as a ploy adopted for the eviction of the tenants. Thus, applying the principles emulated in the case laws discussed above, it could be safely concluded that the respondent-landlord has successfully established the ground of bona fide need envisaged under Section 11(3) of the Act. 10 R.C.(Rev) No.50 of 2024 13. As regards the onus of proving requirements of provisos 1 and 2 of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, it is well-settled that it is upto the tenant to bring out the requisite particulars through convincing evidence, for seeking the protection of the said provisos. 14. Following various earlier decisions of this Court, it has been held by a Division Bench of this Court in **Chethil Tharemmal** **Rasheeda v. Peedikayilakath Muhammad [2021 (6) KHC** **723]** , in which one among us, [Anil K. Narendran, J.] was a party, that the burden to prove the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, is on the tenant. 15. As far as the present case is concerned, the respondentlandlord has clearly stated that the vacant space available in the same building belonging to him, was not at all suitable for the proposed textile shop sought to be commenced by his wife. The above contention of the landlord has been substantiated by the oral testimony of the 2[nd] revision petitioner as RW1 who stated that the above portion of vacant space of the 2[nd] and 3[rd] floors of the building belonging to the landlord was not at all suitable for textile business. Thus the landlord had shown special reason for not preferring the vacant buildings remaining under his possession. The above aspect has been rightly discussed and articulated by the Rent Control Court 11 R.C.(Rev) No.50 of 2024 and the Appellate Authority in the order and judgment under challenge. ## 16. in **Aboobacker.C.P v. K.T.Sreelatha Nambiar** (supra) it has been held that it is the absolute burden of the tenants to prove both limbs of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. 17. In the instant case, the Rent Control Court and the Appellate Authority are seen to have correctly appreciated the evidence, including the Commission Report marked as Exts.C1 series, brought forth by the landlord towards establishing the availability of alternate buildings in the locality for the tenants to shift their business. So also, the Rent Control Court and Appellate Authority have dealt with the failure of the tenants to establish that they are mainly depending upon the income derived from the business being conducted in the petition schedule building for their livelihood. Thus there is absolutely no scope for any interference on the finding of the Rent Control Court and Appellate Authority with regard to the entitlement of the landlord to get possession of the petition schedule building on the ground of bona fide need envisaged under Section 11(3) of the Act. 12 R.C.(Rev) No.50 of 2024 18. The landlord is also seen to have adduced evidence regarding the acquisition of reasonably sufficient building by the tenants in the same locality for the conduct of the business which they are presently carrying on in the petition schedule building. The failure of the tenants to rebut the evidence adduced by the landlord in the above regard has been pointed out by the Appellate Authority in the impugned judgment. There is absolutely no reason to displace the findings of the Rent Control Court and the Appellate Authority on the above point as well. 19. As a conclusion to the discussions aforesaid, we hold that there is absolutely no scope for any interference with the concurrent findings of the Rent Control Court and Appellate Authority regarding the entitlement of the respondent-landlord to have possession of the petition schedule building on the grounds envisaged under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Act. 20. When our view, as above, has been made clear in open court, the learned counsel for the revision petitioners-tenants sought eight months’ time for the revision petitioners to vacate the petition schedule building. The learned counsel for the respondent-landlord opposed the above request stating the reason that such a long period of time would cause further hardship and sufferings to the respondent-landlord who has been prosecuting this proceedings for 13 R.C.(Rev) No.50 of 2024 the eviction of the revision petitioners-tenants right from the year 2017. Having regard to the submissions of the learned counsel for the revision petitioners and the learned counsel for the respondentlandlord on the above aspect, we feel it proper to grant a period of six months’ time to the revision petitioners-tenants to vacate the petition schedule building, if they are ready to abide by the terms and conditions enumerated hereafter in the concluding portion of this order. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting six months' time to the petitioners-tenants, to surrender vacant possession of the petition schedule building to the respondent-landlord, subject to the following conditions: - (i) The petitioners-tenants 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 they will surrender vacant possession of the petition schedule building to the 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 building and further that they shall conduct any business in the petition schedule building only on the strength of a valid 14 R.C.(Rev) No.50 of 2024 licence/permission/consent issued by the local authority/statutory authorities; - (ii) The petitioners-tenants 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 thirty days from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; - (iii) Needless to say, in the event of the petitioners-tenants 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 building will stand cancelled automatically and the respondent-landlord will be at liberty to proceed with the execution of the order of eviction. Sd/- **Sd/-** **G. GIRISH, JUDGE** jsr