T.K. Rahmathulla and T.K. Sihabudheen v. Charles C. Andrews

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944** **RCREV. NO. 95 OF 2018** **AGAINST (THE JUDGMENT OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE IN RCA.NO.1/2017 DATED 28.09.2017) (RCP.NO.238/2014 ON THE FILE OF THE RENT CONTROL COURT, KOZHIKODE)** ## **REVISION PETITIONERS/RESPONDENTS/PETITIONERS:** 1 T.K.RAHMATHULLA AGED 54 YEARS, S/O.THANDUM PARAKKAL MUHAMMED @ BAPPUTTY, CHANDRAKUNNU, NILAMBUR P.O., MALAPPURAM DISTRICT, REPRESENTED BY THE POWER OF ATTORNEY HOLDER T.K.SHIHABUDHEEN, S/O.THANDUM PARAKKAL MUHAMMED @ BAPPUTTY, CHANDRAKUNNU, NILAMBUR P.O., MALAPPURAM DISTRICT. 2 T.K.SHIHABUDHEEN AGED 57 YEARS, S/O.THANDUM PARAKKAL MUHAMMED @ BAPPUTTY, CHANDRAKUNNU, NILAMBUR P.O., MALAPPURAM DISTRICT BY ADVS. SRI.T.KRISHNANUNNI (SR.) SMT.VEENA HARI SRI.NIRMAL. S ## **RESPONDENT/APPELLANT/RESPONDENT:** CHARLES C.ANDREWS AGED 42 YEARS, C/O.C.C.ANDREWS, MADHURAVANAM ROAD, CHEVAYUR DESAM, CIVIL STATION P.O., KOZHIKODE DISTRICT, PIN-673020. R.C.R.No.95 of 2018 2 BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SRI.N.J.JOHNSON SRI.JAMSHEED HAFIZ THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.No.95 of 2018 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **R.C.R.No.95 of 2018** **------------------------------------------Dated this the 24[th] day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This Rent Control Revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), has been filed against the judgment dated 28/09/2017 in R.C.A.No.1 of 2017 on the file of the Rent Control Appellate Authority (RCAA), Kozhikode against the order dated 20/10/2016 in R.C.P.No.238/2014 on the file of the Rent Control Court (RCC), Kozhikode. The revision petitioners are the respondents in the appeal and the petitioners in the R.C.P. The respondent herein is the appellant and the respondent-tenant in the R.C.P. 2. R.C.P.No.238/2014 was filed by the petitioners-landlords seeking eviction of the respondent-tenant under Section 11(3) of the Act. According to the petitioners, the schedule shop room was let out to the respondent on 01/01/2005 for a monthly rent of ₹2310/-. The second petitioner was working in Saudi Arabia as a pharmacist. He was forced to return to his native place as he lost his job there. The second petitioner intends to start a medical centre in the tenanted premises. Therefore, the petitioners _bona fide_ requires the petition schedule room for the proposed business. The respondent is not entitled to the benefit of the second proviso R.C.R.No.95 of 2018 4 to Section 11(3). 3. The respondent filed counter denying the allegation that the room had been let out on 01/01/2005. According to the respondent, the shop room was taken on rent as per a rental agreement dated 24/08/2000. The monthly rent for the premises is ₹2000/-. At the time of entrustment, the respondent had paid an amount of ₹2 lakhs as advance rent. The second petitioner is still working in Saudi Arabia. The need alleged is not _bona fide_ and it is a mere ruse for eviction. The petitioners do not have any intention to start a medical centre as claimed by them. The second petitioner has no experience to start a medical centre. The respondent also claimed the benefit of the second proviso to Section 11(3). 4. PW1 was examined and Exts. A1 to A3 were marked on the side of the petitioners. RW1 was examined and Exts.B1 to B3 were marked on the side of the respondent. The RCC on appreciation of the oral and documentary evidence found the need to be _bona fide_ and hence ordered eviction under Section 11(3). The respondent filed R.C.A.No.1/2017 against the order of eviction passed by the RCC. The RCAA allowed the appeal by reversing the order of eviction of the RCC. Aggrieved, the petitioners-landlords have come up in revision. 5. The only point that arises for consideration is whether there is any illegality, irregularity or impropriety in the findings of the RCAA. 6. Heard Sri.T.Krishnanunni, the learned senior counsel for the petitioners and Sri. T.Sethu Madhavan, the learned senior counsel for the respondent. R.C.R.No.95 of 2018 5 7. It was argued by the learned senior counsel for the petitioners that the findings in the impugned judgment are incorrect and contrary to law. The appellate authority has committed a serious error in holding that the need projected by the landlords is not _bona fide_ . The findings of the appellate authority are against settled position of law laid down in **Kurian v. Sunny John, 2016 (2) KLJ (SN) 124** and **Abdul Rub v. Jobby Tharian, 2003(3) KLT 733** . Therefore, an interference into the same is called for, goes the argument. 8. _Per contra_ , it was argued by the learned senior counsel for the respondent-tenant that this Court in exercise of its powers under Section 20 cannot reappraise the evidence on record. Relying on the decision in **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, AIR 2014 SC 3708,** the argument is that Section 20 of the Act does not entitle the High Court to interfere with the findings of fact recorded by the Appellate Authority because on a re-appreciation of evidence, its view is different from the view of the RCC or the RCAA. The consideration or examination of the evidence by the High Court in revisional jurisdiction under the Act is confined to find out whether finding of facts recorded by the RCC/RCAA is according to law and that it does not suffer from any error of law. The High Court is entitled to satisfy itself of the correctness or legality or propriety of any decision or order impugned. However, to satisfy itself of the regularity, correctness, legality or propriety of the impugned judgment or order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-asses the evidence for coming to a R.C.R.No.95 of 2018 6 different finding on facts. 9. It is no doubt true that this Court sitting in revision cannot convert itself into an evidence collecting or fact finding court. The scope of interference by the revisional court is restricted to cases where the RCC or RCAA have relied an irrelevant consideration, ignored valuable items of evidence or applied wrong principles of law. As held by the Constitution Bench in **Hindustan Petroleum Corporation** _(Supra),_ a finding of fact recorded by the RCC or the RCAA if perverse, or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, then it is open to correction, because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the Act is entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself of the correctness or legality or propriety of any decision or order impugned before it. Therefore, we will consider whether findings recorded by the RCAA is in anyway perverse or has been arrived at without consideration of the material evidence or whether it has misread the evidence or whether the findings are grossly erroneous. 10. In the R.C.P., the allegation is that the second petitioner was forced to come back from Saudi Arabia as he lost his job due to change in their labour policy. He has now no source of income (ഇപ��ള ക�ര�മ�യ� യ�ത��ര വരമ�ന മ�ര�വ� R.C.R.No.95 of 2018 7 ഇല). Hence he requires the tenanted premises to start a medical centre. The second petitioner when examined as PW1, admitted that he is getting an income of ₹1,10,000/- as rental income. Therefore, referring to the deposition of PW1, it was argued on behalf of the respondent that in spite of the fact that the second petitioner has income, the same was suppressed. By the admission of PW1, his allegation in the R.C.P. that he has no income has turned out to be false. This is one factor affecting the _bona fides_ of the claim put forward by him. It is true that in the R.C.P. the petitioner has not referred to his rental income. However, it is well settled that the _bon fide_ need put forward need not be a dire need or that the landlord should be on the verge of starvation or poverty to succeed under Section 11(3). As held by the Apex Court in **Bega Begum And v. Abdul Ahad Khan, AIR 1979 SC 272** , the words 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. A 'need' is something more than a mere 'requirement' but is not something which a person cannot well do without. ( **Standard Cashew Industries v. Krishnan** , **1980 KLT 897** ). As far as the pleadings are concerned, a liberal interpretation is called for as the proceedings before the RCC is a summary procedure. It is well settled that the pleadings should be liberally construed and meticulous analysis of the pleadings should not be adopted, which will lead to failure R.C.R.No.95 of 2018 8 of justice. As held in **Rajamma v. Leela, 1991 KHC 522** , in the matter of construing the pleadings a liberal approach is necessary, as otherwise there would be the risk of justice becoming a causality. Therefore, merely because the rental income is not referred to in the R.C.P, is no ground to reject the _bona fide_ need put forward by the petitioners. Even if the second petitioner has other sources of income that would not in any way affect his _bona fides_ as law does not prevent or bar a person from aspiring to generate more income, provided it is by lawful means. 11. The need projected in the R.C.P. is that the second petitioner wants to start a medical centre in the petition schedule building. The RCAA has observed that the nature of the project proposed to be started in the petition schedule building has not been specified. The fact that the second petitioner is a Pharmacist is taken note of by the appellate authority. However, the RCAA entertained doubts as to how a pharmacist could start a medical centre. The discussion of the RCAA on this point reads - _“....The case of the respondents in the petition is that they need the petition schedule shop room and all the shop rooms situated in the ground floor of the building for the purpose of establishing a medical centre, but the nature of the proposed project is not specified._ A _ccording to the second appellant, he is a pharmacist. I do not know how the pharmacist could start a medical centre. Of course, he may start a medical shop......”_ . The observation of the RCAA that the project proposed to be started has not been specified is incorrect because it is stated in the R.C.P. that the second petitioner intends to start a medical centre in the tenanted R.C.R.No.95 of 2018 9 premises. Further, the RCAA seems to be of the opinion that the second petitioner does not have the know-how necessary or the required qualifications for starting the proposed business. As held by the Apex Court in **Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde** , **AIR 1999 SC 2226** , if a person wants to start new business of his own, it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects the lack of his _bona fides_ is a fallacious and unpragmatic approach. Many a business have flourished in this country by leaps and bounds which were started by novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. If the opinion that acquisition of sufficient know-how is a pre-condition for even proposing to start any business, if gains approval as a proposition of law, it is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that “no experience no venture”. 12. The next aspect pointed out on behalf of the respondent to doubt the case put forward is relating to Ext.B3 order. Admittedly, the petitioners herein had filed R.C.P.No.22/2013 before the RCC, Manjeri for eviction of tenants in two rooms in a building situated at Manjeri for the purpose of starting a medical centre. Ext.B1 is the copy of the said R.C.P. According to the respondent, the said R.C.P. was later on compromised and the rooms in which the proposed business was intended to be R.C.R.No.95 of 2018 10 started was again let out to the tenant for a daily rent of ₹800/-. This again is stated to be another aspect to doubt the need projected. Admittedly, the petition schedule rooms in R.C.P.No.22/2013 is situated in Manjeri whereas the petition schedule room in the case on hand is situated in Kozhikode. Ext.B2 is the compromise petition filed under Order 23 Rule 3 by the petitioner and the second respondent in R.C.P.No.22/2013. In Ext.B2, it is stated that the petitioner has obtained vacant possession of the room in the possession of the first respondent. As far as the other room in the possession of the second respondent is concerned, it is stated that, in the compromise talks that took place between the parties, it was decided that the medical centre would be started for the time being in the room vacated by the first respondent and that when the need for further facility arises, the petitioner would take steps for evicting the other respondent also. It is further stated that it is on the persuasion of the mediators, that the petitioner had agreed to allow the second respondent to continue in the petition schedule room for a further period of 11 months. Further, PW1 in his cross examination deposed that when the matter was settled between the parties in the said R.C.P., the intention was to start the business in the room of which vacant possession was obtained. However, the proposal to start a medical centre in the room in Manjeri was dropped due to a bar being started nearby. The petitioner has given an explanation as to why he had to drop his proposal to start a business in the room at Manjeri. This testimony of PW1 has not been discredited. Therefore, this aspect would also not affect the _bona fides_ of the need alleged in the present R.C.P. R.C.R.No.95 of 2018 11 13. In the present case, the building housing the petition schedule room has 15 rooms in total of which the petitioners contend that they require 12 rooms for starting the proposed business. It was pointed out on behalf of the respondent that no R.C.P. has been filed for evicting the tenants of the remaining rooms and that the petitioners have filed the present R.C.P. against the present respondent alone, who is in possession of just one room in the building. It was submitted on behalf of the petitioners that they have arrived at an understanding with the tenants of the other rooms by which all of them have agreed to vacate the rooms in their possession and that presently on a temporary basis, they have been allowed to continue in the premises as the said rooms cannot be kept vacant till the petitioners obtain vacant possession of the petition schedule room in this case. This submission that the other tenants have agreed to vacate the rooms in their possession and that they are continuing on the basis of a temporary arrangement made between the parties is not disputed. Therefore, there is nothing on record to show that the need alleged is not _bona fide_ . In these circumstances, the conclusion of the RCAA that the need put forward is not _bona fide_ is apparently erroneous and arrived at on a misreading of the evidence on record. In the result, the R.C.R is allowed. Taking into account the facts and circumstances in the case, we deem it appropriate and reasonable to grant the respondent six months' time to vacate the building on condition that he files an undertaking before the RCC on or before **27/12/2022** to vacate the tenanted premises R.C.R.No.95 of 2018 12 within a period of six months from today and also on condition that the respondent pay the arrears of rent if any, on or before 27/12/2022 and also continue to pay the monthly rent on or before the 10[th] day of every succeeding month till he vacates the building. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** Jms/25.11