Thooneri Rameshan v. U. Sarada and Others

## **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 JUNE 2022 / 19TH JYAISHTA, 1944 R.C.REV.NO. 266 OF 2019** **AGAINST THE JUDGMENT DATED 13.08.2018 IN R.C.A.NO.106 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), THALASSERY AND THE ORDER DATED 29.02.2016 IN R.C.P.NO.68 OF 2014 OF THE RENT CONTROL COURT (MUNSIFF), THALASSERY** ## **REVISION PETITIONER:** ## **THOONERI RAMESHAN** **AGED 65 YEARS, S/O.ACHUTHAN, BUSINESS, SAMEEKSHA INDUSTRIES, P.O.KADIRUR, THALASSERY, KANNUR DISTRICT, PIN-670642.** **BY ADVS. R.SURENDRAN S.MAYUKHA** ## **RESPONDENTS:** **1 U.SARADA AGED 67 YEARS, W/O.LATE MOORKOTH RAGAHVAN, GITANJALI, P.O., KADIRUR, THALASSERY, KANNUR DISTRICT, PIN-670642.** - **2 U.GEETHA, AGED 44 YEARS, D/O.LATE MOORKOTH RAGAHVAN, ADVOCATE, RESIDING AT DR.P.M.K.NAIR QUARTERS, P.O.KADIRUR, THALASSRY, KANNUR, PIN-670642.** - **3 U.REKHA AGED 42 YEARS, D/O.LATE MOORKOTH RAGHAVAN, MURIKKOLI HOUSE, P.O. ERANHOLI, THALASSERY, KANNUR DISTRICT, PIN-670107.** 2 R.C.Rev.No.266 of 2019 **4 U.RAKESH, AGED 38 YEARS, S/O.LATE MOORKOTH RAGHAVAN, POLICE, RESIDING AT GITANJALI.P.O.KADIRUR, THAALASSERY, KANNUR DISTRICT, PIN-670642.** **BY ADVS.** **DR.PAULY MATHEW MURICKEN SRI.MUHAMMED ASIF ABDULLA** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.266 of 2019 ## **O R D E R** ## Ajithkumar, J. The respondents-landlords filed R.C.P.No.68 of 2014 before the Rent Control Court (Munsiff), Thalassery, seeking eviction of the petitioner-tenant under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per the order dated 29.02.2016, the Rent Control Court ordered eviction of the petitioner. He carried the matter in appeal under Section 18(1)(b) of the Act to the Rent Control Appellate Authority (Additional District Judge-III), Thalassery, by filing R.C.A.No.106 of 2016. As per judgment dated 13.09.2018, the Appellate Authority confirmed the order of eviction under Section 11(2)(b) and 11(3) of the Act. But set aside the order of eviction under Section 11(4)(i) of the Act. Aggrieved by the said judgment, the petitioner has preferred this revision under Section 20 of the Act. 2. On 24.06.2019, this Court admitted the revision and ordered to issue notice to the respondents by speed post. 4 R.C.Rev.No.266 of 2019 Execution of the order of eviction was stayed for a period of one month. The interim order has been extended from time to time and is still in force. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. Eviction claimed on the ground under Section 11(4) (i) of the Act was refused by the Appellate Authority and there is no challenge to the same. What remains for consideration is the order of eviction concurrently granted by the courts below under Section 11(2)(b) and 11(3) of the Act. 5. The respondents contended that rent at the rate of Rs.2,662/- per month from 09.04.2013 has been in arrears. The petitioner refuted the said allegation and contended that the rate of rent agreed to between the parties was Rs.2,220/and rent due up to 09.06.2013 was already paid. The courts below considered the evidence on record in detail to arrive at the conclusion that the rent at the rate of Rs.2,928/- per month has been due from 09.04.2013 to the petitioner. In 5 R.C.Rev.No.266 of 2019 order to reach that finding, Ext.A4 and the oral testimony of PW1 and RW1 were placed reliance. Ext.A4 is a receipt for payment of rent of Rs.2,662/- by the petitioner to the respondents. The genuineness of Ext.A4 is not in dispute. The rent originally agreed was Rs.2,200/- and on account of the periodical increase agreed to between the parties, the rent eventually became 2,928/-. In considering the fact that Ext.A4 would probabilise the case of the respondents regarding a periodical increase of 10% every three years, the case of the respondents is proved to be true. In that view of the matter, the courts below held that the rate of rent with effect from 10.04.2013 is Rs.2928/-. There is no reason to interfere with the said finding and also the further finding that rent from 10.04.2013 has been in arrears. The findings of the court below in that regard are confirmed. 6. One of the co-owners, the 2[nd] respondent, who was examined as PW1, wants to put up residence in the petition schedule building. That is the need urged by the respondents as a ground for evicting the petitioner. The petitioner is now 6 R.C.Rev.No.266 of 2019 using the petition schedule building to run a steel furniture manufacturing unit. The case of the respondents is that earlier the original tenant, Sri.Raghavan, was using the building for his residential purpose. His wife and children are the present landlords-respondents. When a new residence was built, Sri.Raghavan along with his family shifted residence to the new building and the petition schedule premises was rented out to the petitioner. Now, the 2[nd] respondent, who is married and having children, wants to have a separate residence, and therefore, the eviction was demanded. The case of the respondents is that after carrying out necessary alterations, the 2[nd] respondent, PW1, along with her family can reside there. 7. The learned counsel appearing for the petitioner would submit that the petition schedule premises is a hall-like structure, where residential accommodation is not possible. It being an old structure, there is no possibility for any alteration to make it suitable for residential purposes also. The need urged is thus alleged to be a pretext for eviction. 7 R.C.Rev.No.266 of 2019 8. PW1 deposed in court that by carrying out a few alterations, the premises can be converted into a residential one. She also deposed that earlier this building was used for residential purposes, and therefore, there is no difficulty to use it as a residence. From the evidence on record, it can be seen that the structure as it exists now, cannot be used for residential purposes. There is, however, nothing on record to show that the building cannot be converted into a residential one. When the landlord desires to convert the building into a residential one, it is not for the court or the tenant to sit upon the wisdom of the landlord to say that the premises cannot be used for such a purpose. Unless there is any statutory bar, there cannot be a finding against the landlord on this aspect. It is for the landlords to decide how and in what manner the premises has to be made suitable for their purpose. In the light of the definite version of PW1 that the building can be converted into a residential one and also taking into account the fact that it was earlier used by his family, comprising his parents and siblings to reside, we are of the view that the 8 R.C.Rev.No.266 of 2019 need urged by the respondents is the one honestly and sincerely made. The courts below evaluated the evidence in its proper perspective and concluded that the need is a bona fide one. 9. 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 reasons, in any particular case it will be just and proper to do 9 R.C.Rev.No.266 of 2019 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. 10. 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 10 R.C.Rev.No.266 of 2019 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. 11. 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 landlord in contradistinction with a mere pretext on the part of 11 R.C.Rev.No.266 of 2019 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. 12. Viewed in the light of the principles laid down in the aforesaid decisions, we hold that there is no reason to interfere with the findings of the courts below regarding the need projected by the respondents as a reason for eviction of the petitioner. 13. There is no serious contention for the petitioner with reference to the first or second proviso to Section 11(3) of the Act. 14. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional 12 R.C.Rev.No.266 of 2019 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, 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. 13 R.C.Rev.No.266 of 2019 ## 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 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 14 R.C.Rev.No.266 of 2019 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. In the light of the principle of law laid down in the above decisions we do not intend to deliberate the matter any further. Hence, we confirm the order of eviction concurrently rendered by the Rent Control Court and the Appellate Authority, under Section 11(2)(b) and 11(3) of the Act. The revision is accordingly dismissed. 18. The learned counsel for the petitioner has made a request to afford two years for vacating the premises pointing out the difficulty in finding out another premises for shifting his establishment. The learned counsel for the respondents is agreeable to grant four months’ time. 19. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant 15 R.C.Rev.No.266 of 2019 possession of the petition schedule premises, 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 premises to the petitioners-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule premises and further they shall conduct any business in the petition schedule premises 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 16 R.C.Rev.No.266 of 2019 this order to surrender vacant possession of the petition schedule premises will stand cancelled automatically and the petitioners-landlords 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