Shaji M.K vs P.V. Kuriakose on 25 January, 2024

[Cites 26, Cited by 0]

Kerala High Court

Shaji M.K vs P.V. Kuriakose on 25 January, 2024

The petitioner is the respondent-tenant in R.C.P.No.21 of 2018 on the of the Rent Control Court (Munsiff), Kalpetta, a petition filed by the respondent herein-landlord 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 for seeking an order of eviction under Section 11(3) of the Act is that of the landlord to start a furniture business in the petition schedule shop room and the two adjacent shop rooms. Before the Rent Control Court, the tenant filed an objection opposing the order of eviction sought for. On the side of the landlord, he was examined as PW1 and Exts.A1 to A24 were marked. On the side of the tenant, he was examined as RW1 and Exts.B1 to B10 were marked. The Building Tax Assessment Register was marked as Ext.X1. After considering the pleadings and evidence on record, the Rent Control Court by the order dated 16.11.2022 granted an order of eviction under Sections 11(2)(b) and 11(3) of the Act and the tenant was directed to surrender vacant possession of the petition schedule shop rooms to the landlord, within the time limit specified in that 3 RC.Rev.No.238 of 2023 order, failing which the landlord can get the order executed through the process of law. The Rent Control Court found that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bonafide, that the first proviso to Section 11(3) of the Act has no application in the facts and circumstances of the case and that the tenant is not entitled to the protection under the second proviso to Section 11(3).

2. The order of eviction granted by the Rent Control Court was under challenge in R.C.A.No.5 of 2023 filed by the tenant before the Rent Control Appellate Authority (Additional District Judge-I), Kalpetta, invoking the provisions under Section 18(1)(b) of the Act. During the pendency of that appeal, the tenant filed an interlocutory application, invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure, 1908, seeking an order to accept on record an attested copy of the agreement dated 10.09.2020 executed between the landlord and one Noufal; an attested copy of the letter dated 05.02.2021 of Noufal addressed to the Secretary of Kalpetta Municipality; and an attested copy of a demand slip dated 14.10.2020 issued to the said Noufal by Kalpetta Municipality. Those documents were placed before the Appellate Authority to contend that the 4 RC.Rev.No.238 of 2023 landlord has another shop room in the very same building, which can be used for the need projected in the Rent Control Petition, instead of evicting the tenant from the petition schedule shop rooms. The Appellate Authority dismissed R.C.A.No.5 of 2023 by the judgment dated 27.09.2023, whereby the order of eviction granted by the Rent Control Court under Sections 11(2)(b) and 11(3) of the Act stands confirmed. Feeling aggrieved, the petitioner-tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.

3. Heard the learned counsel for the petitioner-tenant.

4. 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 concurrently by the Rent Control Court and the Appellate Authority under Sections 11(2)(b) and 11(3) of the Act.

5. During the course of the argument, the learned counsel for the petitioner would confine the challenge made in this Rent Control Revision against the finding of the Rent Control Board as well as the Appellate Authority that the need projected in the Rent Control Petition seeking an order of eviction under Section 11(3) of the Act is bona fide. The learned counsel would also contend that the Appellate Authority went wrong in brushing 5 RC.Rev.No.238 of 2023 aside the additional documents placed on record along with the interlocutory application filed under Order XLI Rule 27 of the Code, in the context of the provisions under the first proviso to Section 11(3) of the Act.

6. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. 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 6 RC.Rev.No.238 of 2023 suitable building available in the locality for such person to carry on such trade or business.

7. In Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476] the Apex Court reiterated that, as laid down in Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing 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. In Nalakath Saidali Haji v. Kalluparamba 7 RC.Rev.No.238 of 2023 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. The Division Bench also noticed the law laid down by the Apex Court in Kizhakkayil Suhara v. Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19] that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has considered the need put forward by the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control 8 RC.Rev.No.238 of 2023 Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord.

9. 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.

10. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2) KLJ 164], a Division Bench of this Court relied on the decision of the Apex Court in Deena Nath v. Pooran Lal [(2001) 5 SCC 705], wherein the Apex Court held that, in order to order eviction on the ground of bona fide need of the landlord, the statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti and also the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. In the said decision, the Division Bench relied on the decision of the Apex Court in Shiv Sarup Gupta [(1999) 6 SCC 222], wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement 9 RC.Rev.No.238 of 2023 is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control Legislation. In Abdul Salam v. Sebastian [2013 (4) KLT 592], a Division Bench of this Court held that, when the landlord has clearly admitted in his evidence that vacant rooms are in his possession, he has to attribute special reasons for not occupying it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the Rent Control Court. Therefore, if there is admission on the part of the landlord of coming into possession of vacant rooms, unless special reason is given for not occupying the same, the need cannot be said to be bona fide and he is not entitled to get an order of eviction under Section 11(3) of the Act.

11. 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 10 RC.Rev.No.238 of 2023 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).

12. In the instant case, the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act, is that of the landlord to conduct furniture business in the petition schedule shop room and the adjacent two shop rooms. The need projected in the Rent Control Petition is substantiated by the oral testimony of the landlord who was examined a PW1. The tenant who was examined as RW1, have not chosen to deny or dispute the need projected by the landlord for seeking an order of eviction under Section 11(3) of the Act. After considering the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority concurrently 11 RC.Rev.No.238 of 2023 found that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bonafide. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be contended that the reasoning of the Rent Control Court and the Appellate Authority on the above aspect is either perverse or patently illegal, warranting interference by this Court in this Rent Control Revision.

13. 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.

14. In M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC 355] the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141], wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question 12 RC.Rev.No.238 of 2023 which is intermixed with the question regarding bona fide requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non- disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question.

15. In Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21] the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. 13 RC.Rev.No.238 of 2023 The Division Bench held that the initial burden to prove that landlord is in possession of the vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its non-occupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises.

16. In Vasantha Mallan, relying on the law laid down by the Apex Court in M.L. Prabhakar [(2001) 2 SCC 355] the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for 14 RC.Rev.No.238 of 2023 the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for non-occupation of the premises for his alleged needs.

17. In Dineshan Pillai P.B. v. Joseph @ Jose [2019 (3) KHC 206] a Division Bench of this Court was dealing with a case in which one of the contentions of the tenant was that the landlord has several other vacant buildings of his own in his possession to start the proposed business. The Division Bench noticed that, the pleadings are very vague with respect to the first proviso to Section 11(3) of the Act. It is stated that the landlord has several other buildings. No particular vacant room has been identified or pointed out in the pleadings. The Division 15 RC.Rev.No.238 of 2023 Bench opined that it is obligatory on the part of the tenant to plead and prove the identity of the vacant building in the possession of the landlord. In the absence of specific pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be said that the tenant has not discharged the initial burden of proof under the first Proviso to Section 11(3) of the Act.

18. During the course of arguments, the learned counsel for the petitioner-tenant has made available for the perusal of this Court a copy of I.A.No.4 of 2023 in R.C.A.No.5 of 2023, filed by the tenant before the Rent Control Appellate Authority, invoking the provision under Order XLI Rule 27 of the Code, to accept additional documents.

19. As already noticed hereinbefore, the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is that of the landlord to start furniture business in the petition schedule shop room and the two adjacent shop rooms. The additional documents produced along with the interlocutory application filed before the Appellate Authority under Order XLI Rule 27 of the Code are in respect of a shop room covered by an agreement dated 10.09.2020 executed between the landlord and one Noufal. On a specific 16 RC.Rev.No.238 of 2023 query made by this Court, the learned counsel for the petitioner- tenant would submit that, before the Appellate Authority, the tenant has no case that the shop room covered by the agreement dated 10.09.2020 is not one lying adjacent to the petition schedule shop room or the adjacent two shop rooms, in which the landlord wants to start furniture business. We also notice that the attested copy of the agreement dated 10.09.2020 produced before the Appellate Authority does not even contain the schedule of the shop room covered by that agreement.

20. In the absence of any cogent and convincing evidence, the Rent Control Court as well as the Appellate Authority rightly found that the first proviso to Section 11(3) of the Act has no application in the facts and circumstances of the case on hand. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be contended that the reasoning of the Rent Control Court and the Appellate Authority on the above aspect is either perverse or patently illegal, warranting interference by this Court in this Rent Control Revision.

21. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of 17 RC.Rev.No.238 of 2023 Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion.

22. 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 18 RC.Rev.No.238 of 2023 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.

23. 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 19 RC.Rev.No.238 of 2023 be justified in interfering with such a finding recorded by the courts below.

24. In Ubaiba v. Damodaran [(1999) 5 SCC 645] the Apex Court considered the exercise of revisional power by 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 the 20 RC.Rev.No.238 of 2023 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.

25. 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.

26. 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 21 RC.Rev.No.238 of 2023 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.

27. In Abdul Salam v. Sebastian [2013 (4) KLT 592], a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the view taken is perverse and the statutory scheme has not been kept in mind and if it requires correction, then Court can re- appreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence.

28. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2) KLJ 164], a Division Bench of this Court held that, the High 22 RC.Rev.No.238 of 2023 Court (in revision) is obliged to test the order of the Rent Control Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available.

29. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Appellate Authority in the impugned order/judgment that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bonafide and that the first proviso to Section 11(3) of the Act has no application in the facts and circumstances of the case, are neither perverse nor patently illegal. It cannot also be held that, while ordering eviction of the tenant under Section 11(3) of the Act, the authorities below have committed a manifest error, warranting interference of this Court, in exercise of the revisional jurisdiction under Section 20 of the Act. Therefore, we find no reason to interfere with the order of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act. 23 RC.Rev.No.238 of 2023

30. The learned counsel for the petitioner-tenant would submit that the tenant may be granted at least six months' time to vacate the petition schedule shop rooms.

31. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and the order of the Rent Control Court; however by granting five months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop rooms 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 rooms to the respondent-

landlord within five 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 he shall conduct any business in the petition schedule shop rooms 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, 24 RC.Rev.No.238 of 2023 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 months, 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 of the petition schedule shop rooms will stand cancelled automatically and the respondent-landlord will be at liberty to proceed with the execution of the order of eviction.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

G. GIRISH, JUDGE SMA

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