V. Parthasaradi v. K.V Sasi Varma 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 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 R.C.REV. NO. 41 OF 2022** **AGAINST THE JUDGMENT DATED 09.11.2021 IN R.C.A.NO.99 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), KOZHIKODE AND THE ORDER DATED 21.12.2017 IN R.C.P.NO.217 OF 2014 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-II), KOZHIKODE** ## **REVISION PETITIONER:** ## **V.PARTHASARADI** **AGED 61 YEARS, S/O LATE V.K.VISWANATHA PILLAI, KEERTHI NAGAR, CHALAPURAM POST – 673 002, KASABA AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** **BY ADVS. O.RAMACHANDRAN NAMBIAR GEEN T.MATHEW** ## **RESPONDENTS:** **1 K.V SASI VARMA, S/O LATE K.V.SUBADRA KOVILAMMA, AGED 63 YEARS, SREERAJ HOUSE, MANKAVU POST – 673 007, VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 2 K.V RAJASREE VARMA, D/O LATE K.V.SUBADRA KOVILAMMA, AGED 63 YEARS, SREERAJ HOUSE, MANKAVU POST – 673 007, VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** 2 R.C.Rev.No.41 of 2022 **3 G.VISWASAR, S/O GOPALAKRISHNAN, TALI POST – 673 002, PUTHIYAPALAM, KASABA AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** **BY ADV V.T.MADHAVANUNNI** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.41 of 2022 ## **O R D E R** ## Ajithkumar, J. The 1[st] respondent in R.C.P.No.217 of 2014 before the Rent Control Court (Principal Munsiff-II), Kozhikode, is the revision petitioner. He filed this revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the judgment dated 09.11.2021 in R.C.A.No.99 of 2018 of the Rent Control Appellate Authority (Additional District Judge-I), Kozhikode and also the order in R.C.P.No.217 of 2014 dated 21.12.2017. 2. R.C.P.No.217 of 2014 was filed by respondent Nos.1 and 2 herein seeking eviction of the tenants from the petition schedule building under Sections 11(3) and 11(4)(v) of the Act. The petitioner, 3[rd] respondent and one Sri.V.Babasubramanian were the respondents in the rent control petition. Eviction was sought on the grounds that 1[st] respondent is in need of the petition schedule building for his own occupation and that the tenants ceased to occupy the building continuously for more than six months without any 4 R.C.Rev.No.41 of 2022 reasonable cause. The 1[st] respondent contended that he is a Professor in Commerce retired from Sreekrishnapuram V.T.Bhattathirippad College and he wants to start a tuition centre in the petition schedule building. 3. The petitioner filed a detailed counter statement and contested the matter. The other two respondents in the rent control petition, co-tenants, also filed a counter statement raising contentions similar to that of the petitioner herein. The contention that they raised are the following: their predecessor-in-interest Sri.P.K.Viswananthan Pillai started occupation of the building as a tenant from the period prior to 1940 and, therefore, their eviction is barred under Section 11(7) of the Act. Several rent control petitions were filed by the landlords earlier, all ended in dismissal and, therefore, this rent control petition is barred under Section 15 of the Act. The 1[st] respondent has no intention to start any tuition centre as claimed. It is set forth as a ruse for eviction. The petitioner is eking out his livelihood solely from the income derived from the business of repairing and installation of cooling system, 5 R.C.Rev.No.41 of 2022 being run in the petition schedule building. It is a small scale industrial unit. No other vacant room is available in the locality to shift his business. The allegation that the petitioner ceased to occupy the building for more than six months has been denied. 4. The Rent Control Court recorded oral evidence of PW1, PW2 and RW1. Exts.A1 to A8, B1 to B28 and C1 to C3(2) were admitted in evidence. The Rent Control Court after appreciating the evidence, ordered eviction under Section 11(3) of the Act and rejected the plea for eviction under Section 11(4)(v). In the appeal, the Appellate Authority reappreciated the entire evidence on record and held that there was no reason to interfere with the order of the Rent Control Court. The appeal was accordingly dismissed. 5. When this matter came up for admission today, the learned counsel, who filed a Caveat on behalf of respondent Nos.1 and 2, entered appearance. The 3[rd] respondent is a cotenant. He did not seriously contest the rent control petition and did not file an appeal against the order in the rent control 6 ## R.C.Rev.No.41 of 2022 petition. Therefore, notice to the 3[rd] respondent is dispensed with. 6. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for respondent Nos.1 and 2. 7. Two-fold contentions were raised regarding maintainability of the rent control petition. Firstly, the predecessor-in-interest of the petitioner, Sri.V.K.Viswanatha Pillai, obtained the building on rent before 1940 and as the said tenancy arrangement has been continuing, the petitioner is protected from eviction. Under the provisions of Section 11(17) of the Act, if a tenant has been in continuous occupation of a building since 01.04.1940, he shall not be liable for eviction on the ground of bonafide need of the landlord or any member of his family dependent on him, except in certain special situations. Although the petitioner claimed that Sri.Viswanatha Pillai came into possession of the petition schedule building as early as in 1938, there is absolutely no evidence to prove that claim. Not only that no 7 R.C.Rev.No.41 of 2022 evidence to substantiate the said claim has been let in, but also in Ext.A4, the plaint in O.S.No.74 of 2008, which was filed by the petitioner, his definite claim was that Sri.Viswanatha Pillai obtained possession of the petition schedule building as per an oral lease in the year 1968. That is a candid admission. That admission estops the petitioner and other co-tenants from contending that the premises was demised in favour of their predecessor-in-interest any time prior to that. After considering such evidence, the courts below found the said claim of the petitioner in the negative. We find no reason to interfere with the said finding. 8. Pointing out that three rent control petitions were earlier filed by respondent Nos.1 and 2 and all were decided against them, it is urged that this rent control petition is barred under Section 15 of the Act. The present rent control petition was filed for the reason that the 1[st] respondent is in need of the petition schedule building for starting a tuition centre. He retired as a Professor only recently. He is now aged 61 years. His requirement of the building to start a tuition 8 ## R.C.Rev.No.41 of 2022 centre has arisen only now. When the landlords claim eviction pointing out such a current need, the fact that rent control petitions filed earlier for totally different purposes, cannot be a bar. 9. In **Govindan v. Subaida Beevi [1997(1) KLT 910]** this Court held that the Legislature has incorporated Section 15 in the Act, more or less, akin to Section 11 of the Code. However, the Act, being a self-contained statute, it is only reasonable to hold that the general principles of res judicata will apply to the proceedings under the Act only to the extent and subject to the parameters incorporated in Section 15 of the Act and not in toto. Thus the bar created under Section 15 of the Act is in a modified form and, not strictly as contained in Section 11 of the Code. If a finding with respect to a question coming under sub-section (2), (3), (4), (5), (7) or sub-section (8) of Section 11 of the Act has been finally decided in a former proceedings between the same parties or between parties under whom they or any of them claim, a subsequent similar proceedings is barred under 9 R.C.Rev.No.41 of 2022 Section 15 of the Act. In that view of the matter, rejection of earlier rent control petitions filed by respondent Nos. 1 and 2 on totally different grounds cannot be a bar and, we hold that this rent control petition is not barred under Section 15 of the Act. The view taken by the courts below in this regard is correct and not liable to be interfered with. 10. 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.41 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. 11. 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.41 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. 12. 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.41 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 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. 13. PW1 is the 1[st] respondent. He deposed in detail regarding the need of starting a tuition centre in the petition schedule building. After retirement, he has been going to various tutorial colleges for imparting coaching to students. Apart from the pension, that is the only income he is drawing at present. It was in the said circumstances, he thought of starting a tuition centre in his own building. 13 R.C.Rev.No.41 of 2022 14. The Commissioner, PW2, inspected the petition schedule building and reported vide Ext.C3 report that the petition schedule building is suitable for conducting a tuition centre. Of course, PW2 reported that the building has dilapidation with old age and it requires restorative repairs. Regarding the locational advantage and the space availability, there is no challenge from the part of the petitioner also. His contention is that the building is very old and therefore unfit for the functioning of a tutorial college. It is for the landlord to carry out necessary repairs for the building, if they want to start the venture as proposed. Even otherwise, necessary repairs are a necessity. That, at any rate, is not a reason to find that the building is not suitable for such a purpose. 15. The Rent Control Court and the Appellate Authority considered the entire evidence in detail before arriving at the conclusion that the need urged by the respondent is bonafide. Having gone through the evidence on record and heard the learned counsel appearing on either side, we do not find any reason to say that the findings of the courts below regarding 14 ## R.C.Rev.No.41 of 2022 the need urged by the respondent is, in any way, illegal, irregular or perverse. 16. The petitioner claims 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 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. 17. The petitioner produced documents showing the income he has been deriving from the business in the petition schedule building. There is no evidence to show that the 15 R.C.Rev.No.41 of 2022 petitioner has any other income. He has produced various documents, namely, Exts.B4 to B21, B26 and B27, which are relating to his annual income and work orders garnered by his concern. He is conducting business in installation of cooling systems and services. RW1, the petitioner, categorically deposed also that his only income is from the said business. Evidence on record proves that he is generating good income from that business and he is depending for his livelihood solely on that income. 18. Coming to the second limb, evidence overwhelmingly proves that alternative buildings are available in the locality. PW1 and PW2 deposed the details of vacant buildings available in that area. No evidence in answer to that has been produced by the petitioner. Proof regarding nonavailability of alternative buildings in the locality is the absolute burden of the tenant. But the petitioner did not venture to bring on record any evidence in that regard. In these circumstances, the courts below correctly had entered into the finding that the second limb of proviso to Section 16 R.C.Rev.No.41 of 2022 11(3) of the Act has not been proved by the petitioner. We do not find any reason to interfere with that finding. 19. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be at its discretion. 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 17 R.C.Rev.No.41 of 2022 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 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 18 R.C.Rev.No.41 of 2022 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. 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** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said 19 R.C.Rev.No.41 of 2022 - to be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 23. Conclusion is therefore irresistible. We hold that there is no reason to interfere with the findings of the judgment of the Appellate Authority which affirmed 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 nine months' time for vacating the premises pointing out the difficulty in finding out another building and making necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant three months’ time. 25. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule building, subject to the 20 ## R.C.Rev.No.41 of 2022 following conditions: - (i) The petitioner herein-tenant shall file an affidavit before the Rent Control Court 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 building to the respondent Nos.1 and 2 herein-landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building and further that he will conduct any business in the petition schedule building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The petitioner herein-tenant 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; 21 ## R.C.Rev.No.41 of 2022 - (iii) Needless to say, in the event of the petitioner hereintenant 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 Nos 1 and 2 herein-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