Veerveetil Mohanan Ragam Printers v. K.G. Sreerekha and Poolakkel Raji

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 RCREV. NO. 7 OF 2019** **AGAINST THE ORDER IN R.C.P.NO.9/2015 ON THE FILES OF THE RENT CONTROL COURT, KOYILANDY DATED 31.03.2017 AS CONFIRMED IN RCA NO.107 /2017 OF THE IIND ADDITIONAL RCAA, IIND ADDITIONAL DISTRICT JUDGE, KOZHIKODE.** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** VEERVEETIL MOHANAN RAGAM PRINTERS, EAST ROAD, POOKAD, CHEMMANCHERRY AMSOM DESOM, KOYILANDY TALUK. BY ADVS. PRABHA R.MENON SRI.R.MANOJ ## **RESPONDENTS/RESPONDENTS/PETITIONERS** 1 K.G.SREEREKHA W/O.SAJEEV KUMAR, SREE SAJ VEETIL, CHEMMANCHERRY, KOYILANDY TALUK. 2 POOLAKKEL RAJI D/O.RAMADAS, MINI NIVAS, CHEMMANCHERRY, KOYILANDY TALUK. BY ADVS. SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.R.No.7 of 2019** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.No.7 of 2019** **------------------------------------------Dated this the 22[nd] 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 18/08/2018 in R.C.A.No.107/2017 on the file of the Rent Control Appellate Authority (RCAA), Kozhikode against the order dated 31/03/2017 in R.C.P.No.9/2015 on the file of the Rent Control Court (RCC), Koyilandy. The revision petitioner-tenant is the appellant in the appeal and the respondent in the R.C.P. The respondents-landlords herein are the respondents in the appeal and the petitioners in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.8/2015 and 9/2015 were filed by the two petitioners herein claiming eviction under Section 11(2)(b) and 11(3). According to the petitioners, they along with two other persons are the coowners of the building housing the petition schedule rooms. The schedule rooms in the respective R.C.Ps. have been leased out to the respondents. 3 ## **R.C.R.No.7 of 2019** The first petitioner has no job or income of her own. Therefore she intends to start a manufacturing and sale of ready made dresses in the petition schedule rooms and the passage in the possession of the respondent in R.C.P.No.8/2015. Two rooms have been let out to the respondent in R.C.P.No.8/2015. The first petitioner intends to use the first shop for manufacturing and displaying dresses and the second shop, as a godown for the ready made dresses. She has sufficient experience in the aforesaid business. There are no suitable rooms available in the possession of the petitioners for the proposed business. The respondents are not entitled to the benefit of second proviso to Section 11(3) of the Act. 2.1. During the pendency of the proceedings, the R.C.P. was amended and pleadings have been incorporated to the effect that after the filing of the R.C.P. in the first week of July 2016, the petitioners obtained vacant possession of certain rooms in the building. However, the said rooms are situated in the rear side of the petition schedule building with no vehicular access and therefore, they are not suitable for the proposed business. Moreover, the second shop room in the possession of the respondent in R.C.P.No.8/2015 is situated on the first floor and the other room on the ground floor. Therefore, the said rooms are more suitable for the use of the petitioner, with the addition of a staircase. Though certain 4 ## **R.C.R.No.7 of 2019** other rooms are also lying vacant in the first floor, those rooms are not suitable for the proposed business of the petitioner. In R.C.P.No.8/2015, the rate of rent is ₹800/- per month, which is in default from January 2014. 3. The respondents in both the R.C.Ps. entered appearance and filed separate counter denying the need alleged and contending that it was a mere ruse for eviction. They also contended that they are entitled to the protection of the first and the second provisos to Section 11(3). The allegation of arrears of rent was also denied by the respondents. 4. Before the RCC, PW1 was examined and Exts.A1 to A10 were marked on the side of the petitioners. RW1 and RW2 were examined and Exts.B1 and B2 were marked on the side of the respondent. The report and the plan of the advocate commissioner have been marked as Ext.C1 and C2 respectively. The RCC allowed both the R.C.Ps. under Section 11(3) of the Act. However, the ground under Section 11(2)(b) was rejected. Both the respondents preferred appeal, that is, R.C.A.No.106/2017 by the respondent in R.C.P.No.8/2015 and R.C.A.No.107/2017 by the respondent in R.C.P.No.9/2015. The order of eviction of the RCC has been confirmed by the RCAA. It is against the concurrent findings of the RCC as well as the RCAA, the respondent-tenant in R.C.A.No.107/2017 has come up in revision. It is submitted that the respondent in R.C.P.No.8/2015 5 ## **R.C.R.No.7 of 2019** has surrendered vacant possession of the room to the petitioners. 5. The only point that arises for consideration in this case is whether there is any illegality, irregularity or impropriety in the findings of the RCC or the RCAA. 6. Heard Adv.Prabha R.Menon, the learned counsel for the revision petitioner and Sri. M.Pramod Kumar, the learned counsel for the respondents. 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an Appellate Authority. The power of revision is limited to make a scrutiny of records to satisfy itself as to the three tests laid down in Section 20. It 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 on irrelevant consideration, ignored valuable items of evidence, or applied wrong principles of law. The revisional authority has to satisfy itself of the legality, regularity or propriety of the order or proceedings of appellate authority. It can interfere only where the impugned order is illegal, irregular or improper. Where there is no illegality, impropriety or irregularity in the orders of the RCC and the RCAA, there is no justification for invocation of the revisional jurisdiction 6 ## **R.C.R.No.7 of 2019** under Section 20 of the Act. 7.1. This Court can interfere under Section 20 of the Act if the view that is taken by the RCC or the RCAA is perverse or when the statutory scheme has not been kept in mind. If the approach made by the authorities is perverse, then this Court in exercise of its jurisdiction under Section 20 can certainly look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the basis of the pleadings and evidence on record. ( **Abdul Salam v. Sebastian, 2013 (4) KLT 592)** 8. Keeping the aforesaid principles in mind, we will examine whether the findings of the RCC or the RCAA are in any way perverse or suffers from any illegality, irregularity or impropriety. 9. As noticed earlier, after the filing of the R.C.P., the petitioners have come in possession of some vacant rooms and hence the R.C.P. was amended and special reasons have been stated as to why the said rooms are not suitable for the proposed business. Both the RCC as well as the RCAA have considered the pleadings relating to the special reasons averred in the R.C.P. and the materials on record to conclude that the petitioners have succeeded in showing special reasons for not using the vacant rooms in their possession. It is true, as argued by the learned 7 ## **R.C.R.No.7 of 2019** counsel for the respondent-tenant relying on the decision in **Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta, (1999) 6 SCC 222** , the term ' _bona fide' or_ 'genuinely' refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much higher than in mere desire. The phrase 'required _bona fide_ ' is suggestive of the legislative intent that a mere desire which is the outcome of a whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretense or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances portraying the need of the landlord and its _bona fides_ would be capable of successfully withstanding the test of objective determination by the court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himselfwhether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere and honest. If the answer be in the positive, the need is _bona fide._ The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material is brought on record by the tenant enabling the court to draw an 8 ## **R.C.R.No.7 of 2019** inference that the reality was to the contrary and the landlord was merely attempting at finding on a pretense or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord. 10. However, as held in the decision in **Sarla Ahuja v. United India Insurance Co.Ltd., (1998)8 SCC 119 ,** when the landlord asserts that he requires his building for his own occupation, the RCC should not proceed on the presumption that the requirement is not _bona fide_ . When other conditions required are satisfied and when the landlord shows a _prima face_ case, it was open to the RCC to draw a presumption that the requirement of the landlord is _bona fide_ . It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of _bona fides_ of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted in himself. It is the settled position of law that the landlord is the best judge of his requirement for his residential or business purpose and he has got complete freedom on the matter. (See also **R.C. Tamrakar v. Nidi Lekha, (2001) 8 SCC 431** ). 11. It was argued by the learned counsel for the respondent that 9 ## **R.C.R.No.7 of 2019** if the need was actually genuine and _bona fide,_ the first petitioner could very well have started her business in the vacant rooms presently in the possession of the petitioners. We cannot agree to the said argument advanced because in the R.C.P. itself, the petitioners have clearly averred as to why the said rooms are not suitable for their needs. In such circumstances, it is not for the tenant to dictate terms to the landlord and say how they could have adjusted themselves without getting possession of the tenanted premises. 12. Further, this Court under Section 20 is duty bound to test the order of the RCC and the RCAA on the touchstone of "whether it is according to law” and for that limited purpose it may re-appraise the evidence and ascertain whether the conclusion arrived at is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. Ignoring the weight of evidence, proceeding on a wrong premise of law or deriving such conclusion from the established facts as to betray a lack of reason and/or objectivity would render the findings of the authorities not according to law calling for an interference under Section 20 of the Act. A judgment leading to miscarriage of justice cannot be said to be a judgment according to law [ **Shiv Sarup Gupta** (Supra)]. In the case on hand, we were taken through 10 ## **R.C.R.No.7 of 2019** the deposition of witnesses and the commission report. We do not find any perversity, infirmity, illegality, irregularity or miscarriage of justice, warranting an interference by this Court. In the result, the R.C.R is found to be without any merits and hence dismissed. The impugned judgment of the RCAA is confirmed. Taking into account the facts and circumstances in this 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 **22/12/2022** to vacate the tenanted premises 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 22/12/2022 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** ami/Jms