Yusuf v. T.A. Ouseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943** **R.C.REV.NO. 36 OF 2022** **AGAINST THE JUDGMENT DATED 04.01.2022 IN R.C.A.NO.162 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), THRISSUR AND THE ORDER DATED 27.10.2016 IN R.C.P.NO.74 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), THRISSUR** ## **REVISION PETITIONER:** **YUSUF,** **AGED 62 YEARS, S/O. KOTTARATHIL VEETTIL MADARI @ KHADAR, VADANAMKURISSY VILLAGE, KARAKKAD DESOM, KONDUKKARE POST, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679 313.** **BY ADVS. G.SREEKUMAR (CHELUR) K.RAKESH** ## **RESPONDENT:** **T.A.OUSEPH AGED 63 YEARS, S/O. THERATTIL VEETTIL ANTONY, ARANATTUKARA VILLAGE DESOM, THRISSUR DISTRICT, PIN - 680 618.** **BY ADV K.A.AUGUSTINE (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.36 of 2022 ## **O R D E R** ## Ajithkumar, J. This is a revision petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner is the tenant and the respondent is the landlord. The respondent filed R.C.P.No.74 of 2013 before the Rent Control Court (Munsiff), Thrissur, seeking eviction of the petitioner from the petition schedule building under Section 11(2)(b), 11(3), 11(4)(ii) and 11(4)(iii) of the Act. Eviction was ordered under Section 11(3) and 11(4)(iii) of the Act. The petitioner filed an appeal as R.C.A.No.162 of 2016 before the Rent Control Appellate Authority (Additional District Judge-II), Thrissur, which was dismissed. Challenging the said judgment and also the order of the Rent Control Court, this revision petition is filed. 2. The rent control petition was filed contending that the petition schedule building is needed for the daughter and son-in-law of the respondent to start a computer software institute and that the petitioner had acquired a building at 3 R.C.Rev.No.36 of 2022 Aranattukara, which is sufficient for his requirement. 3. The respondent resisted the rent control petition by filing a counter statement. It was contended that the need urged by the respondent is not at all bonafide for the reasons that his son-in-law has been running a jewellery and several other businesses, the respondent is in possession of many other buildings which are reasonably sufficient for the proposed business, only income the petitioner can depend upon for his livelihood is the income from the business being run in the petition schedule building, no other building is available in the locality for shifting his business and, that he has not acquired any other building or been running any supermarket. 4. The Rent Control Court recorded oral evidence of PW1 to PW3 and RW1. Exts.A1 to A18, B1 to B3 and C1 and C1(a) were received in evidence. After considering the said evidence, eviction under Section 11(3) and 11(4)(iii) was ordered and the petition as regards Section 11(2)(b) and 11(4)(ii) was dismissed. The Appellate Authority re- 4 R.C.Rev.No.36 of 2022 appreciated the evidence in detail and held that the order of the Rent Control Court was not liable to be interfered with. 5. On 11.02.2022, when this matter came up for admission, the respondent for whom a caveat was filed, entered appearance, through his learned counsel. Today, we heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6. The only point requires consideration is whether any interference to the order of the Rent Control Court dated 27.10.2016 and the judgment of the Appellate Authority dated 04.01.2022 is warranted. 7. The learned counsel appearing for the petitioner would contend that considering the financial background and the way of life the respondent, his daughter and son-in-law have been leading, the need urged cannot be said bonafide. It is contended that the son-in-law of the respondent, PW2, has many other businesses and the projected need is just a ruse for eviction. PW1, the respondent, as well as PW2 deposed in detail regarding the proposed business. PW2 is a qualified 5 R.C.Rev.No.36 of 2022 Engineer. He acquired an M.B.A. degree as well. He had been working at Bangalore till four years before. His wife is a graduate having undergone training in computer courses. In the said circumstances, they propose to start a computer software institute in the petition schedule building. 8. It is the contention of the petitioner that the petition schedule building, where he is conducting an automobile scrap business, is an old and dilapidated building, and not at all suitable to house a computer software institute. Unless the building is reconstructed, the premises can hardly be used for such a business, but, the respondent has no such proposal. Pointing out those aspects, the learned counsel appearing for the petitioner would contend that the idea of the respondent is just to evict the petitioner on the pretext of such a need. 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, 6 R.C.Rev.No.36 of 2022 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 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** 7 R.C.Rev.No.36 of 2022 **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 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. 8 R.C.Rev.No.36 of 2022 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 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). 9 R.C.Rev.No.36 of 2022 12. As regards the qualification of PW2 and his wife, there is no challenge. When PW1, the landlord as well as PW2, for whom and whose wife the building is said to be needed, categorically deposed in court regarding the proposed project. PW2 denied his having any business or avocation now. Their evidence cannot be brushed aside unless there is sufficient reason to disbelieve them. It may be true that the petition schedule building being an old one, requires restorative repairs before starting the proposed institute. That is the concern of the landlord, and the tenant cannot dictate that for such a reason no eviction can be sought for. The courts below after considering the entire evidence in detail rendered the finding that the need urged by the respondent is honest, real and bonafide. We are of the view that there is no reason for this Court to re-appreciate the evidence. We hold that no sufficient ground to interfere with the said finding is made out. 13. The contention that the respondent and PW2 have many other buildings, is not supported by any evidence. Of course, PW1 admitted during cross-examination that he had 10 R.C.Rev.No.36 of 2022 another building, which has several rooms. He however explained that all those rooms were occupied by the tenants and none of the 12 rooms is available vacant. The petitioner did not specifically plead or adduce any evidence to show that vacant building/room is available either with PW1 or PW2. It is true that the petitioner filed a commission application and attempted to adduce additional evidence before the Appellate Authority, which was declined. As pointed out by the Appellate Authority those are the last moment attempts to scuttle the process of law. We find no reason to find fault with the view taken by the Appellate Authority not to entertain those demands. 14. As regards to second proviso to Section 11(3) of the Act, the petitioner attempted to contend that his only source of income is from the business in the petition schedule building. He during cross-examination has admitted that he purchased 39 cents of land at Aranattukara and constructed a building thereon. He further admitted that he started a supermarket in that building. He however added that the same has not been functioning for the last five years. 11 R.C.Rev.No.36 of 2022 15. 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. 16. When it is in evidence that the petitioner already commenced a supermarket, his further version that its functioning was stopped, cannot ipso facto be accepted. At any rate, in the absence of any document regarding the income being derived by the petitioner from his business in the petition schedule shop room and also from other sources, it is 12 R.C.Rev.No.36 of 2022 not possible to say that he ekes out his livelihood solely from the income from the petition schedule shop room. Regarding availability of other suitable building in the locality, to which the petitioner can shift his business also, no evidence was let in by the petitioner. In the said circumstances, we hold that the petitioner is not entitled to the benefit of either the first proviso or second proviso to Section 11(3) of the Act. 17. In answer to the contention of the respondent that the petitioner acquired another building in the same village, which is reasonably sufficient for his requirement, the respondent as RW1 admitted that he purchased 39 cents of land in Aranattukara Village and put up a building. Petition schedule building is also in Aranattukara Village. What is required to seek an order of eviction under Section 11(4)(iii) of the Act is that the tenant acquired or put up before or after the commencement of the tenancy arrangement, a building which is reasonably sufficient for his requirement in the same city, town or village. Once RW1 admits that he had already put up a building in the same village, it is his absolute burden 13 R.C.Rev.No.36 of 2022 that the same is not sufficient for his purpose. RW1 further admitted that a supermarket was commenced functioning in the said building. The petition schedule building is described as a shop room with wooden shutters as two parts. Its exact area has not come on record. But from the said description, it is clear that the business being run in the said premises can certainly be housed in the building constructed by the petitioner. If a supermarket can be conducted, undoubtedly a scrap business can be accommodated there. In these circumstances, the finding rendered by the courts below that the petitioner is liable to be evicted for the reason of his acquiring such a new building, which is reasonably sufficient for his requirement, cannot be interfered with in exercise of the jurisdiction conferred upon this Court under Section 20 of the Act. 18. 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 14 R.C.Rev.No.36 of 2022 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. 19. 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 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 15 R.C.Rev.No.36 of 2022 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. 20. 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 16 R.C.Rev.No.36 of 2022 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. 21. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** 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 - 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. 22. In view of the above legal principles, it is not possible for us to re-appreciate the evidence, especially 17 R.C.Rev.No.36 of 2022 when the Appellate Authority, being the first appellate court, has considered and re-appreciated the entire evidence in great detail and confirmed the findings of the Rent Control Court. 23. Having considered all the aforesaid aspects, we are of the definite view that there is no reason to interfere with findings in the order of the Rent Control Court or the judgment of the Appellate Authority. Hence, this Revision Petition fails. We, accordingly, dismiss it. 24. The learned counsel for the petitioner has made a request to afford six 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 four months’ time to surrender vacant possession of the petition schedule building, subject to the following conditions: 18 ## R.C.Rev.No.36 of 2022 (i) The respondent-tenant in the Rent Control Petition 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 petitioner-landlord within four 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 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; 19 ## R.C.Rev.No.36 of 2022 - (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 this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioner-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