Vinod Kumar P.R. v. Hydru K

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 ``` ``` RCREV. NO.212 OF 2023 ``` ``` AGAINST THE ORDER DATED 16.08.2023 IN RCA 3/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KALPETTA RCP 14/2020 OF MUNSIFF MAGISTRATE COURT, KALPETTA ``` ``` REVISION PETITIONER/APPELLANT/RESPONDENT: ``` ``` VINOD KUMAR P.R., AGED 62 YEARS S/O. RAMU, ROOM NO.109, MACHINGAL APARTMENT, MEPPADI PO, KOTTAPPADI VILLAGE, VYTHIRI TALUK, WAYANAD, PIN – 673577 ``` ``` BY ADVS. P.CHANDRASEKHAR ANOOP KRISHNA JENNY THANKAM C.RAMAN ANAND SANKAR REGIMOL M.K. ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` HYDRU K, AGED 53 YEARS S/O. ALI HAJI, KAVUMBADAN HOUSE, MANIVAYAL, KOTTANADU PO, KOTTAPPADI VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT,, PIN - 673121 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.C.(Rev) No.212 of 2023 ## **O R D E R** ## G. Girish, J. The tenant who suffered concurrent orders of eviction under Section 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1956 (for short 'the Act'), from the Rent Control Court and Rent Control Appellate Authority, Kalpetta, has filed this revision aggrieved by the above orders. 2. The petitioner is in occupation of the petition schedule shop room on the basis of a rental arrangement with the respondent right from the year 2007. While so, the respondent wanted to have possession of the petition schedule shop room for the purpose of starting a stationary and fancy shop. Alleging that the petitioner has committed default in the payment of rent and that he has kept the petition schedule shop room unoccupied for a period of more than six months, the respondent approached the Rent Control Court by filing R.C.P.No.14 of 2020 seeking eviction of the petitioner on the grounds envisaged under Section 11(2)(b), 11(3) and 11(4)(v) of the Act. Rent Control Court, after the evaluation of the evidence adduced by the respondent through the oral testimonies of PW1 and PW2 and Exts.A1 to A5, and that of the petitioner through the oral evidence of RW1 and the documents marked as Exts.D1 to D7, and also the Commission report and rough sketch marked as Exts.C1 and C2, found that the respondent is entitled to have vacant possession 3 R.C.(Rev) No.212 of 2023 of the petition schedule shop room upon the grounds envisaged under Section 11(3) and 11(4)(v) of the Act. The claim for eviction under Section 11(2)(b) of the Act was disallowed by the Rent Control Court. In the appeal preferred by the petitioner before the Rent Control Appellate Authority as R.C.A.No.03 of 2022, the Rent Control Appellate Authority concurred with the findings of the Rent Control Court and confirmed the order of eviction under Section 11(3) and 11(4)(v) of the Act, as per the judgment dated 16.08.2023. Aggrieved by the above concurrent findings of the said authorities, the petitioner is here before this Court with this revision. 3. Heard the learned counsel for the revision petitioner. 4. The point to be decided in this revision is whether the judgment dated 16.08.2023 in R.C.A.No.03 of 2022 of the Rent Control Appellate Authority which upheld the order of the Rent Control Court, Kalpetta in R.C.P.No.14 of 2020, is liable to be interfered with. 5. As already stated above, the bona fide need projected by the respondent-landlord before the Rent Control Court and Appellate Authority, was his desire to start a stationary and fancy shop in the petition schedule shop room. The respondent-landlord adduced evidence before the Rent Control Court as PW1 in support of the above need for which he sought possession of the petition schedule 4 R.C.(Rev) No.212 of 2023 shop room. Rent Control Court and the Appellate Authority observed in the impugned order and judgment that the cross-examination of PW1 did not bring out anything to discredit his case regarding the need to start a business of stationary and fancy items in the petition schedule shop room. It is well settled that when the landlord approaches the Rent Control Court with a request to have possession of the room leased out to the tenant, for his bona fide need, no ulterior motives could be attributed to the above petition in the absence of evidence pointing to any malice on his part in preferring such a petition as a ruse for eviction. If the materials on record would show that the need to occupy the premises is natural, real, sincere and honest, there is no other option for the Rent Control Court other than ordering eviction under Section 11(3) of the Act, but of course, subject to the first and second provisos to the said Section. 6. 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 5 ## R.C.(Rev) No.212 of 2023 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. 7. 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. 8. 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. 6 R.C.(Rev) No.212 of 2023 9. **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, 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). ## 10. 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 7 R.C.(Rev) No.212 of 2023 Section 11(3) of the Act, of course, subject to the first and second provisos to the said Act. 11. As already stated above, the Rent Control Appellate Authority has observed in the impugned judgment that on a reappraisal of the evidence, there is nothing on record to discredit the need urged by the landlord, and that the landlord has established his bona fide need as espoused under Section 11(3) of the Act in positive terms. Going by the law laid down in the decisions discussed aforesaid, there is absolutely no scope for unsettling the above finding of the Rent Control Appellate Authority. 12. As regards the first proviso to Section 11(3) of the Act, the Appellate Authority has observed in the impugned judgment that the petitioner-tenant has not brought any material to discredit the evidence tendered by the landlord as PW1, specifically stating the details of the tenants under whom the rooms pointed out by the petitioner-tenant, as vacant rooms belonging to the landlord, are in occupation. So also, it is stated in the above judgment that the petitioner-tenant has not taken any steps to establish the availability of any vacant rooms in the possession of the respondent-landlord. The admission made by the tenant in specific terms in his testimony as RW1 about the non-availability of vacant rooms in the petition 8 R.C.(Rev) No.212 of 2023 schedule shop room, is also adverted in the judgment of the Appellate Authority. 13. As regards the second proviso to Section 11(3) of the Act, the Appellate Authority has observed in the impugned judgment that the petitioner-tenant has not produced any document to show the income derived by him from the business said to have been conducted in the demised premises. Further it is stated in the aforesaid judgment that the petitioner-tenant, in his testimony as RW1, gave evidence that there is a new building under construction on the opposite side of the petition schedule shop room and that, he did not make any enquiry with the owner of the said building about the availability of vacant rooms in the said building. Accordingly, it is concluded by the Appellate Authority that the petitioner-tenant has not made any endeavour to find out that there are any vacant rooms available in the locality. 14. 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. 15. Following various earlier decisions of this Court, it has been held by a Division Bench of this Court in **Chethil Tharemmal** 9 R.C.(Rev) No.212 of 2023 ## **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. So also, 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. 16. Thus, it could be safely concluded that the finding of the Appellate Authority, concurring with the observations of the Rent Control Court, about the non-availability of the privilege and protection of provisos 1 and 2 of Section 11(3) of the Act to the petitioner-tenant, does not suffer from any legal or factual infirmity. 17. In respect of the non-occupation of the petition schedule shop room by the tenant for a period of more than six months, the Rent Control Appellate Authority has relied on the commission report marked as Ext.C1 and the oral evidence tendered by the Advocate Commissioner as PW2 towards arriving at the finding that no business activities were carried out in the petition schedule shop room for a considerable period of time. Together with the above circumstances brought out from the Commission Report, the Appellate Authority delved upon the dichotomy in the contentions of 10 ## R.C.(Rev) No.212 of 2023 the tenant, who at one instance, admitted in his counter statement and objection to the commission report about the closure of the petition schedule shop room for a few months, and on another instance advanced a plea, totally denying the cessation of occupation, in arriving at the conclusion that the case put forward by the respondent-landlord about the non-occupation of the petition schedule shop room by the petitioner-tenant for a period of more than six months, is true. There is absolutely no reason to find fault with the Rent Control Appellate Authority in drawing conclusion about the non-occupation of the petition schedule shop room by the petitioner-tenant for a period of more than six months, on the basis of the preponderance of probabilities, as could be discerned from the evidence on record. 18. In the light of the discussions aforesaid, we are of the considered view that the findings of the Rent Control Appellate Authority in the judgment under challenge are neither perverse nor patently illegal, and there is absolutely no scope of any interference with it. 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 four months' time to the petitioner-tenant, to 11 ## R.C.(Rev) No.212 of 2023 surrender vacant possession of the petition schedule shop room to the respondent-landlord, subject to the following conditions: - (i) The petitioner-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 shop room to the respondentlandlord within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further they shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; - (ii) The petitioner-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 two weeks 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 petitioner-tenant 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 12 R.C.(Rev) No.212 of 2023 of the petition schedule shop room 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/vgd