Shaji Joseph vs Ponnamma Varghese on 11 January, 2022

[Cites 38, Cited by 0]

Kerala High Court

Shaji Joseph vs Ponnamma Varghese on 11 January, 2022

The petitioner is the respondent-tenant in R.C.P.No.10 of 2015 on the file of the Rent Control Court (Munsiff), Thiruvalla and the appellant in R.C.A.No.10 of 2018 on the file of the Rent Control Appellate Authority (District Judge), Pathanamthitta. The landlords, namely, Shri.P.A.Varghese and his wife Smt.Ponnamma Varghese (1st respondent herein) filed the R.C.P. under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop rooms. The need projected in the Rent Control Petition, in order to seek an order of eviction under Section 11(3) of the Act, was that of Shri. P.A.Varghese and his wife Smt. Ponnamma Varghese wanted the rooms for starting a hardware business. He intend to start the business in the two petition schedule shop rooms and also the adjacent two shop rooms which are already in their possession.

2. Before the Rent Control Court, the petitioner- 4 R.C.Rev.No. 188 of 2021 tenant entered appearance and filed a counter statement. He has denied the bona fide of the need projected in the Rent Control Petition. He also contended that the petition is barred by res judicata, other rooms are there in the possession of the landlords and the petitioners are entitled to get the protection of the second proviso to section 11(3) of the Act.

3. On the side of the landlords, Shri.P.A.Varghese was examined as PW1 and Exts.A1 to A3 series were marked. The tenant and an independent witness were examined as DW1 and DW2. Exts.B1 to B9 were marked on the side of the tenant.

4. Claim for eviction on the ground of arrears of rent was not seen pressed by the landlords. After considering the pleadings and evidence on record, the Rent Control Court found that the need projected in the Rent Control Petition under Section 11(3) of the Act was bonafide and genuine. Since the landlords are not in possession of any other suitable and convenient building for the proposed purpose, the tenant is not entitled to the benefit of the first proviso to Section 5 R.C.Rev.No. 188 of 2021 11(3) of the Act. The tenant as DW1 during cross examination has admitted that vacant rooms are available in the locality, although he added that those rooms are situated away and therefore not convenient for shifting his business. The Rent Control Court found that the tenant was not entitled to protection under the second proviso to Section 11(3) of the Act. Therefore, the landlords were found entitled for an order of eviction under Section 11(3) of the Act. Accordingly, the Rent Control Court, by the order dated 22.01.2018, allowed the R.C.P under Section 11(3) of the Act directing the tenant to put the landlords in vacant possession of the petition schedule shop room, within 60 days from the date of order.

5. Challenging the order of eviction the tenant filed R.C.A.No.10 of 2018, before the Rent Control Appellate Authority, Pathanamthitta. During the pendency of that appeal, Shri. P.A.Varghese died and his legal heirs were impleaded as supplemental respondents 3 and 4 as per order dated 9.3.2021 in I.A.No. 3 of 2021. The Rent Control Appellate Authority, by the judgment dated 17.9.2021, 6 R.C.Rev.No. 188 of 2021 dismissed R.C.A.No.10 of 2018, thereby confirming the order of eviction granted by the Rent Control Court under Section 11(3) of the Act.

6. Feeling aggrieved by the judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court, the tenant has filed this Rent Control Revision, invoking the revisional jurisdiction of this Court under Section 20 of the Act.

7. On 3.01.2022, when this Rent Control Revision came up for admission, the learned Counsel for the respondents, who filed Caveat entered appearance.

8. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents.

9. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction granted by the Rent Control Court, under Section 11(3) of the Act, which was confirmed by the Rent Control Appellate Authority in its 7 R.C.Rev.No. 188 of 2021 judgment dated 17.9.2021.

10. The bona fide need projected in the Rent Control Petition, to seek an order of eviction under Section 11(3) of the Act, was that Shri.P.A.Varghese and his wife, the 1 st respondent, the landlords, wanted the petition schedule shop rooms and also the adjacent two shop rooms already in their possession, for starting a hardware business.

11. 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 8 R.C.Rev.No. 188 of 2021 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. As per the third proviso to Section 11(3), no landlord whose right to recover possession arises under an instrument of transfer inter-vivas shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. As per the fourth proviso to Section 11(3), if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him.

12. 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 9 R.C.Rev.No. 188 of 2021 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.

13. In Ammu v. Nafeesa [2015 (5) KHC 718] a Division Bench of this Court held that, it is a settled 10 R.C.Rev.No. 188 of 2021 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.

14. In the instant case, as already noticed, the need projected in the Rent Control Petition was that Shri.P.A.Varghese and his wife, the 1st respondent, the landlords, wanted the petition schedule shop rooms to be used along with the adjacent two shop rooms already in their possession, for starting a hardware business. Shri.P.A. Varghese, who was examined as PW1, has deposed that he and his wife were employed abroad and he lost employment and settled in his native place. His wife is planning to resign and come back. They intend to start a hardware business in the petition schedule shop rooms and in the adjacent two shop rooms. There is nothing in evidence to discredit that version of PW1. It has also come out in evidence that the landlords are having enough funds with them to start the business.

15. The petitioner-tenant raised the contentions before 11 R.C.Rev.No. 188 of 2021 the Rent Control Court, the Rent Control Appellate Authority and reiterated before this Court that the claim of the landlords for eviction is not bonafide and the petition is barred by res judicata. The learned Counsel for the petitioner would contend that the landlords filed O.S.No.571 of 2014 seeking eviction of the petitioner without starting any reason and after withdrawing that suit this petition was filed. Since no leave was obtained to file a fresh petition for eviction this proceedings is barred under section 11 of the Code of Civil Procedure, 1908. But the Appellate Authority and the Rent Control Court in oblivion of that fact held that the petition for eviction is maintainable.

16. It is an admitted case that O.S.No.571 of 2014 was filed for getting vacant possession of the petition schedule shop rooms describing the petitioner as a licensee and, on accepting his plea that he is a lessee and not a licensee, that suit was withdrawn. There was no decision on merit in that suit which is sine qua non for the bar of res judicata under section 11 of the Code as also under Section 15 of the Act. 12 R.C.Rev.No. 188 of 2021 Acting upon the plea of the petitioner that he is a tenant, the landlords withdrew O.S.No.571 of 2014. The petitioner cannot now reprobate and contend that this petition is not maintainable. In a suit for ejectment of a licensee on termination of licence there is no requirement of pleading the purpose for which the owner moves for ejection. Therefore the contention that in O.S.No.571 of 2014 the ground for ejection was not stated is not a reason to find that the need projected by the landlords in this petition is only a ruse for eviction. The contentions of the petitioner in this regard are untenable.

17. In the impugned judgment dated 17.09.2021 in R.C.A.No.10 of 2018, the Rent Control Appellate Authority found that the Rent Control Court in its order dated 22.01.2018 in R.C.P.No.10 of 2015 rightly repelled the objections raised by the tenant against the bona fide need projected by the landlords. The finding to that effect in the judgment dated 17.09.2021 of the Rent Control Appellate Authority and the order of the Rent Control Court dated 22.01.2018 are neither perverse nor patently illegal, 13 R.C.Rev.No. 188 of 2021 warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

18. The learned counsel for the petitioner raised a jurisprudential contention that the prayer should have been under Section 11(8) of the Act since the landlords are already in possession of two adjacent rooms rather than under Section 11(3). Section 11(8) enables the landlord who is in occupation of a part of a building to seek eviction of the tenant in occupation of whole or any portion of the remaining part of the building. The word 'occupation' cannot be equated to 'possession'. Both are different connotations. True, the adjacent two rooms are vacant. The landlords are in possession of those rooms, but not in occupation. Hence, we hold that the provision under which the landlord can seek eviction of the petitioner is under Section 11(3) and not under Section 11(8) of the Act.

19. The learned counsel for the petitioner-tenant would further submit that the death of Shri.P.A.Varghese during the pendency of R.C.A.No.10 of 2018 is a subsequent event 14 R.C.Rev.No. 188 of 2021 completely eclipsing the bona fide need projected in the Rent Control Petition, but the Appellate Authority omitted to take into consideration that subsequent event, having fundamental impact on the right of the landlords to get an order of eviction under Section 11(3) of the Act.

20. Per contra, the learned counsel for respondents argued that since the bonafide need projected in the Rent Control Petition was that of both Shri.P.A.Varghese and his wife, the 1st respondent, the original landlords, for starting a hardware business in the petition schedule shop rooms and also the adjacent two shop rooms, the subsequent event, i.e., the death of Shri.P.A.Varghese during the pendency of the appeal is not of such a magnitude as to completely eclipse the bona fide need projected in the Rent Control Petition, as rightly found by the Appellate Authority.

21. Exactly a similar question arose in T.P.Gireeshbabu v. Jameela and others [2021 SCC OnLine Ker.3641]. In that case this Court (a decision rendered by one among us (Anil K. Narendran, J.) held thus: 15 R.C.Rev.No. 188 of 2021

'22. In Sheshambal (dead) through LRs. v. Chelur Corporation, Chelur Building [(2010) 3 SCC 470] the Apex Court was dealing with a case in which the landlords, late Shri K. Sachindanda Iyer and his wife late Smt. A. Sheshambal Sachindanda Iyer, let out the premises in dispute to the 1st respondent for a period of three years in terms of a lease deed dated 12.04.1983. On the expiry of the lease period the landlords filed R.C.P.No.116 of 1986 before the Rent Control Court, Ernakulam seeking eviction of the tenant on the ground that they required the same for their bona fide personal occupation within the meaning of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The prayer for eviction was opposed by the tenant, inter alia, on the ground that the landlords did not require the demised premises and that, the tenant would find it difficult to shift its business to any other premises on account of non-availability of a suitable accommodation. The Rent Control Court eventually came to the conclusion that the landlords had failed to establish their bona fide requirement of the premises. The Rent Control Court found that the landlords had shifted their residence from Cochin and were living with their daughter and son- in-law, who were running a nursing home in that city. Aggrieved by the order passed by the Rent Control Court, the landlords appealed to the Rent Control Appellate Authority, who affirmed the decision taken by 16 R.C.Rev.No. 188 of 2021 the Rent Control Court, holding that the landlords were residing with their daughter and son-in-law at Ernakulam in a building owned by the landlords. The Appellate Authority also found that the landlords had a cottage at Kodaikanal and that, they being fairly old had no reason to shift back to Ernakulam in search of better medical facilities, especially when their son-in-law was running a nursing home at Coimbatore, where such facilities were available to them. Aggrieved by the order passed by the Rent Control Court and the judgment of the Appellate Authority, the landlords approached the High Court in a revision filed under Section 20 of the Act. During the pendency of the revision Shri K. Sachindanda Iyer passed away on 24.04.1996. The High Court refused to intervene with the concurrent findings recorded by the courts below and accordingly, dismissed the revision petition. Feeling aggrieved, Smt. A. Sheshambal Sachindanda Iyer approached the Apex Court. During the pendency of the Civil Appeal, Smt. Sheshambal passed away. In I.A.No.7 of 2008 filed on 14.11.2008 permission was sought for substitution of her legal heirs on the basis of a will left behind by the deceased, as per which the property in question has to devolve upon her three daughters, out of which two of the daughters are living in India, one each at Coimbatore and Bihar, and the third daughter is settled in America.

23. In Sheshambal the Apex Court noticed that, in the 17 R.C.Rev.No. 188 of 2021 eviction petition the landlords had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the landlords leave alone any member of their family who was dependent upon them.

That being so the parties went to trial before the Rent Control Court on the basis of the case pleaded in the petition and limited to the requirement of the landlords for their personal occupation. Neither before the Rent Control Court nor before the Appellate Authority it was argued that the requirement in question was not only the requirement of the landlords but also that of any other member of their family, whether dependent upon them or otherwise. Not only that, even in the petition filed before the Apex Court the requirement pleaded was that of the deceased widowed landlord and not that of any member of her family.

24. In Sheshambal the Apex Court further noticed that, the legal representatives who now claim to be the family members of the deceased landlords are all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependent upon the deceased landlord was also a fact undisputed before the Apex Court. Even otherwise, in the social milieu to which we are accustomed, daughters happily 18 R.C.Rev.No. 188 of 2021 married have their own families and commitments, financial and otherwise. Such being the position the Apex Court found it difficult to see how the legal representatives of the deceased landlord can be allowed to set up a case which was never set up before the courts below so as to bring forth a requirement that was never pleaded at any stage of the proceedings. Allowing the legal heirs to do so would amount to permitting them to introduce a case which is totally different from the one set up before the Rent Control Court, the Appellate Authority or even the High Court. The position may indeed have been differentiated if in the original petition the landlords had pleaded their own requirement and the requirement of any member of their family dependent upon them. In such a case the demise of the landlords or any one of them may have made little difference for the person for whose benefit and bona fide requirement the eviction was sought, who could pursue the case to prove and satisfy any such requirement.

25. In Sheshambal, before the Apex Court it was contended on behalf of the appellants that the rights and obligations of the parties get crystallised at the time of institution of the suit so that any subsequent development is not only inconsequential but also wholly irrelevant for determination of the case before the Apex Court. In that context, the Apex Court observed that, while it is true that the right to relief must be judged by 19 R.C.Rev.No. 188 of 2021 reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted.

26. In Sheshambal, the Apex Court noticed that, the above proposition of law is fairly settled by the decision in Pasupuleti Venkateswarlu v. Motor and General Traders [(1975) 1 SCC 770]. To the same effect is the decision in Om Prakash Gupta v. Ranbir B. Goyal [(2002) 2 SCC 256] where it was declared that although the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit, yet the court has power to mould the relief in case the following three conditions are satisfied (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is 20 R.C.Rev.No. 188 of 2021 brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Hasmat Rai v. Reghunath Prasad [(1981) 3 SCC 103] it was observed that, if the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events, and the court including the appellate court has to examine, evaluate and adjudicate upon the same. To the same effect is the decision in Baba Kashinath Bhinge v. Samast Lingayat Gavali [(1994) Supp. 3 SCC 698] where relying upon the decision in Hasmat Rai it was held that in a case of bona fide requirement it is necessary to establish that the landlord needs the premises and the need subsists till a decree is passed in his favour. In a case where such need is available at the time of the filing of the petition but becomes extinct by the time the matter attains finality in appeal for revision no decree will be justified. For that purpose, the court should take all the subsequent events into consideration and mould the relief accordingly.

27. In Sheshambal, at Para.22 of the decision (SCC page 477), the Apex Court quoted with approval the following passage from the decision in Baba Kashinath Bhinge (SCC pages 699- 700, para 2) as complete answer to the question raised before it, which reads thus;

R.C.Rev.No. 188 of 2021

'2. Equally it is settled by this Court in series of judgments and a reference in this behalf would be sufficient by citing Hasmat Rai v. Raghunath Prasad [(1981) 3 SCC 103] that in a case of bona fide requirement, it is always necessary, till the decree of eviction is passed that the landlord should satisfy that the need is bona fide and the need subsists. In a case where the need is available at the time of filing of the petition, but at the time of granting decree it may not continue to subsist, in that event, the decree for eviction could not be made. Similarly pending appeal or revision or writ petition, the need may become more acute.

The court should take into account all the subsequent events to mould the relief. The High Court may not be justified in omitting to consider this aspect of the matter but that does not render the judgment illegal for the subsequent discussion we are going to make.' (emphasis in original)

28. In Sheshambal, the Apex Court noticed that, a similar view was expressed in Ramesh Kumar v. Kesho Ram [(1992) Supp. 2 SCC 623] (SCC pages 626-27, para 6), wherein it was held that, the normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law 22 R.C.Rev.No. 188 of 2021 which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. Similarly, in Maganlal Kishanlal Godha v. Nanasaheb Uddhaorao Gadewar [(2008) 13 SCC 758] it was held that, if the litigation keeps extending and number of developments sprouting up during the long interregnum, the court should adopt a pragmatic approach in the matter and determine whether or not the development pending finalisation of the litigation is such as would completely non-suit the party concerned. In Sheshambal, the Apex Court observed that the decision in Maganlal Kishanlal Godha is no authority for the proposition that subsequent developments having material impact on the rights and obligations of the parties can be ignored by a court simply because such rights and obligations have to be determined by reference to the date on which the litigation was instituted.

29. In Sheshambal, the Apex Court further noticed that, the decision in Kedar Nath Agrawal v. Dhanraji Devi [(2004) 8 SCC 76] has reiterated the legal position after a detailed review of the case law on the subject. That was also a case where the two landlords seeking eviction of the tenant had passed away during the pendency of the eviction petition and the question 23 R.C.Rev.No. 188 of 2021 was whether the three married daughters left behind by the couple could continue with the same. In the said decision (SCC page 86, para 31) it was observed that, in view of the settled legal position as also the decisions in Pasupuleti Venkateswarlu [(1975) 1 SCC 770] and Hasmat Rai [(1981) 3 SCC 103] the High Court was in error in not considering the subsequent event of death of both the landlords. It was the power as well as the duty of the High Court to consider the fact of death of the landlords during the pendency of the writ petition. Since it was the case of the tenant that all the three daughters got married and were staying with their in- laws, obviously, the said fact was relevant and material.

30. In Sheshambal (SCC page 478, paras 26 and 27), the Apex Court noticed that, the decisions in Pratap Rai Tanwani v. Uttam Chand [(2004) 8 SCC 490], Gaya Prasad v. Pradeep Srivastava [(2001) 2 SCC 604], Kamleshwar Prasad v. Pradumanju Agarwal [(1997) 4 SCC 413], Shakuntala Bai v. Narayan Das [(2004) 5 SCC 772], G.C. Kapoor v. Nand Kumar Bhasin [(2002) 1 SCC 610], Shantilal Thakordas v. Chimanlal Maganlal Telwala [(1976) 4 SCC 417] and Pukhraj Jain v. Padma Kashyap [(1990) 2 SCC 431] do not lend any support to the proposition that subsequent developments cannot be noticed by the court, especially when such developments have an impact on the right of a party to the relief 24 R.C.Rev.No. 188 of 2021 prayed for. In Shantilal Thakordas v. Chimanlal Maganlal Telwala [(1976) 4 SCC 417] the earlier decision rendered in Phool Rani v. Naubat Rai Ahluwalia [(1973) 1 SCC 688] was overrules and it was held that the law permitted the eviction of the tenant for the requirement of the landlord for occupation of the landlord as residence for himself and members of his family and that, such a requirement was both of the landlord and the members of his family so that upon the death of the landlord the right to sue survived to the members of his family. That is not the position in the case on hand.

31. In Sheshambal, on the facts of the case on hand, the Apex Court noticed that, the requirement pleaded in the eviction petition by the landlords was their own personal requirement and not the requirement of the members of their family whether dependent or otherwise. Indeed if the deceased landlords had any dependent member of the family, the Court may have, even in the absence of a pleading assumed that the requirement pleaded extended also to the dependent member of their family. That unfortunately, for the appellants is neither the case set up nor the position on facts. The deceased couple did not have any dependent member of the family for whose benefit they could have sought eviction on the ground that she required the premises for personal occupation. In the light of what 25 R.C.Rev.No. 188 of 2021 have been stated above, the Apex Court held that on the death of the landlords in the original eviction petition their right to seek eviction on the ground of personal requirement for the demised premises became extinct and no order could on the basis of any such requirement be passed at this point of time.

32. The factual matrix and the law laid down by the Apex Court in Sheshambal, which we have dealt with in extenso hereinbefore, gives a complete answer to the question as to whether the subsequent event, i.e., the death of Kuzhichalil Abdurahiman during the pendency of R.C.A.No.66 of 2018, is of such a magnitude as to completely eclipse the bona fide need projected in R.C.P.No.71 of 2016."

22. In view of the above principle of law, it would be open to a tenant to point out a subsequent event which is of such a magnitude as to completely eclipse the bona fide need projected in the Rent Control Petition as a ground for eviction, under Section 11(3) of the Act. In such an event, the Rent Control Court and the Appellate Court are obligated to examine, evaluate and adjudicate upon the same, in order to find out whether the bona fide need no more exists because of the subsequent event.

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23. This Court in T.P.Gireeshbabu (supra) further held, '35. In Sheshambal the bona fide need projected under Section 11(3) of the Act was for the personal occupation of the landlords, namely, Sachidananda Iyer and his wife Sheshambal. The Rent Control Court found that the landlords had failed to establish their bona fide requirement of the premises. Aggrieved by that order, the landlords filed appeal before the Rent Control Appellate Authority, which ended in dismissal. The landlord filed Rent Control Revision before this Court. During the pendency of that revision, Sachidananda Iyer passed away. This Court refused to intervene with the concurrent findings recorded by the courts below and accordingly, dismissed the Rent Control Revision. Feeling aggrieved, Sheshambal approached the Apex Court. During the pendency of Civil Appeal, Sheshambal passed away. Her legal heirs were substituted in the party array, on the basis of a Will left behind by her. As per the said Will, the property in question has to devolve upon her three daughters, out of which two daughters are living in India, one each at Coimbatore and Bihar and the 3rd daughter settled in America.

36. In Sheshambal, the Apex Court found that the eviction petition was totally silent about the requirements of any member of the family of the 27 R.C.Rev.No. 188 of 2021 landlords leave alone any member of their family, who was dependent on them. Therefore, the legal heirs cannot be allowed to set up a case, which was never set up before the courts below. In Sheshambal the Apex Court has made it clear that the position may indeed have been differentiated, if in the original petition the landlords had pleaded their own requirement and the requirement of any member of their family dependent upon them. In such a case, the demise of the landlords or any one of them may have made little difference for the person whose benefits and bona fide requirement, the eviction was sought, who could pursue the case to prove and satisfy any such requirement.'

24. In this case, the bona fide need projected in the Rent Control Petition was that of both Shri.P.A.Varghese and his wife, 1st respondent. They together wanted to start a hardware business in the petition schedule shop rooms and also the adjacent two shop rooms. We found above that the need projected by the landlords in the Rent Control Petition is bonafide and genuine. Therefore the death of one of the landlords, Shri.P.A.Varghese, during the pendency of R.C.A.No.10 of 2018, is not a subsequent event of such a magnitude as to completely eclipse the bona fide need 28 R.C.Rev.No. 188 of 2021 projected in the Rent Control Petition. The finding to that effect in the judgment dated 17.9.2021 of the Rent Control Appellate Authority is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

25. As per the first proviso to Section 11(3) of the Act, 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.

26. The petitioner contended that two adjacent rooms are available vacant and those rooms are sufficient for the purpose of the landlords. Very case of the landlords is that they require the said two rooms as well as the petition schedule rooms to start a hardware business. Genuineness of that need has been proved by the landlords also. Pointing out those facts, the learned counsel for the respondents would contend that this is not a case where the tenant can 29 R.C.Rev.No. 188 of 2021 successfully raise a plea under the first proviso to section 11(3) of the Act.

27. In Sait Nagee Purushotham and Co. Ltd. v. Vimalabai Prabhulal [2005 (8) SCC 252] the Apex Court held that, it is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.

28. The landlord is the best judge of his need or requirement and the manner in which he should conduct his affairs. It is not for the tenant to dictate terms as to which premises will be suitable or not for the proposed business of the landlord, or to advice the landlord what he should do and what he should not do. Neither the tenant nor the court can thrust upon its opinion or wisdom on the landlord and dictate terms in this regard.

29. Therefore, the petitioner-tenant cannot dictate that the landlords should start the proposed hardware business in the two rooms already with them, instead of the petition 30 R.C.Rev.No. 188 of 2021 schedule shop rooms and those adjacent two shop rooms. The petitioner-tenant has no case that the landlords are in vacant possession of any other shop room or building, suitable for the proposed business. After considering the evidence on record the Rent Control Court and the Appellate Authority rightly concluded that the provisions under the first proviso to Section 11(3) of the Act is not attracted and hence the tenant is not entitled to protection under that proviso. Those findings of the Rent Control Appellate Authority and the Rent Control Court are neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

30. As per the second proviso to Section 11(3) of the Act, 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. 31 R.C.Rev.No. 188 of 2021

31. In Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465] a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide:Narayanan Nair v. Pachumma [1980 KLT 430], Prasannan v. Haris [2005 (2) KLT 365], Vineethan v. Fathima and others [2016 (1) KHC 631]. In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord did not state that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he 32 R.C.Rev.No. 188 of 2021 failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 33 R.C.Rev.No. 188 of 2021

32. In the counter statement filed by the petitioner- tenant contended that the income derived from the bakery and provision store business conducted in the petition schedule shop rooms is the main source of income and he is depending upon the said income for his livelihood. It was also contended that no other shop room which is convenient to shift his business is available in the locality, especially in view of the fact that a huge sum remained to be collected from his customers who made purchases from his shop on credit.

33. The petitioner-tenant did not place on record any document before the Rent Control Court to prove his income derived from the business being conducted in the petition schedule shop rooms and that the income derived from the said business is his main source of livelihood. The tenant who was examined as DW1, admitted during cross examination, that his wife is employed as a teacher and he owned an autorickshaw. According to DW1, he has availed bank loans for the purpose of his business and a good sum is required for repaying the loan amount. However, no documents were 34 R.C.Rev.No. 188 of 2021 placed on record to prove the income he has been deriving from the business in the petition schedule shop rooms.

34. Regarding non-availability of suitable building in the locality for carrying out the business conducted in the petition schedule shop room, DW1 during cross examination, admitted that rooms in the buildings of Orthodox Church and one Smt. Kunnathuveetil Thankamma are available for availing on rent. According to DW1, the said shop room are not in the immediate vicinity and shifting to those rooms will affect his business adversely.

35. It is well settled that both limbs under the second proviso to Section 11(3) of the Act are conjunctive and the burden of proof is on the tenant. The petitioner-tenant failed to prove that he is depending for his livelihood mainly the income derived from any business carried on in the petition schedule shop rooms and that, there is no other suitable building available in the locality to carry on such business, as rightly found by the Rent Control Court and the Appellate Authority, the petitioner-tenant is not entitled to protection 35 R.C.Rev.No. 188 of 2021 under the Second proviso to Section 11(3) of the Act. The finding to that effect in the judgment dated 17.9.2021 of the Rent Control Appellate Authority and the order of the Rent Control Court dated 22.01.2018 is neither perverse nor patently illegal, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

36. 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 36 R.C.Rev.No. 188 of 2021 proceedings before the High Court or District Court under sub section (1) shall be in its discretion.

37. 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 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 37 R.C.Rev.No. 188 of 2021 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.

38. In T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275] the Apex Court held that, the words 'to satisfy itself' employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below.

39. In Ubaiba v. Damodaran [(1999) 5 SCC 645] the Apex Court considered the exercise of revisional power by 38 R.C.Rev.No. 188 of 2021 the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in Rukmini Amma Saradamma it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re- appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression 'propriety' in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of 39 R.C.Rev.No. 188 of 2021 the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re- appreciating the evidence and in coming to the conclusion that the relationship of landlord tenant did not exist.

40. 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 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.

R.C.Rev.No. 188 of 2021

41. 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.

42. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the order of eviction passed by the Rent Control Court, which stands confirmed by the Appellate Authority, is either perverse or patently illegal or it suffers from any legal infirmity, warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction concurrently passed by the authorities below. 41 R.C.Rev.No. 188 of 2021

43. The learned counsel for the petitioner-tenant would submit that considering the situation prevailing in the country on account of Covid-19 pandemic the tenant may be given at least eight months' time to give vacant possession of the petition schedule shop room. The learned counsel for respondents would concede that the time requested for by the petitioner is reasonable.

44. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned order of the Rent Control Court and the judgement of the Rent Control Appellate Authority; however by granting eight months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondents; the landlords, considering the situation prevailing in the Country on account of COVID-19 pandemic, subject to the following conditions:

(i) The respondent-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 42 R.C.Rev.No. 188 of 2021 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 landlords within eight months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room;

(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 month, without any default;

(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 room will stand cancelled automatically and the 43 R.C.Rev.No. 188 of 2021 petitioners-landlords 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

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