Kerala High Court
Usha S Nair vs Vijaya Chandran on 7 October, 2022
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
RCREV. NO. 71 OF 2022
[AGAINST THE JUDGMENT DTD.17.3.2021 IN RCA NO.3 OF 2018 OF RENT
CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT-I,
MAVELIKKARA AND ORDER IN RCP NO.3 OF 2016 OF RENT CONTROL COURT,
MAVELIKKARA]
REVISION PETITIONER/APPELLANT/RESPONDENT:
USHA S NAIR
AGED 55 YEARS
D/O BHASKARA PANICKER, DEVI VIHAR, KOTTARKAVU
MURI, MAVELIKKARA P.O. MAVELIKKARA TALUK,
ALAPPUZHA DISTRICT - 690101.
BY ADVS.
K.S.HARIHARAPUTHRAN
BHANU THILAK
RESPONDENT/RESPONDENT/ADDL.2ND PETITIONER:
VIJAYA CHANDRAN
S/O RAMACHANDRAN NAIR, POKKATTU PUTHENVEEDU,
NEAR VARAVILA VIDHYALAYAM, VARAVILA P.O,
KLAPPANA VILLAGE, KARUNAGAPPALLI TALUK,
KOLLAM-690528.
BY ADV B.RENJITHKUMAR
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 07.10.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.C.R.No.71 of 2022
2
ORDER
Shoba Annamma Eapen. J This Rent Control Revision is filed by the revision petitioner-tenant challenging the common judgment dated 17.3.2021 in R.C.A.No.3/2018 of the Rent Control Appellate Authority, Mavelikkara and order dated 31-03-2018 in R.C.P.No.3/2016 of the Rent Control Court, Mavelikkara.
2. The tenant is the revision petitioner. The respondent-landlord filed R.C.P.No.3 of 2016 seeking eviction of the petitioner under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') . The Rent Control Court, Mavelikara, allowed the petition under Section 11(2)(b) & 11(3) of the Act. An appeal was preferred under Section 18(1)(b) of the Act against the aforesaid order of the Rent Control Court by the tenant and a cross objection was filed by the landlord against the rejection of his prayer to grant recovery of rent, by the Rent Control Court. The Rent Control Appellate Authority (1 st Additional District Judge), Kozhikode, partly allowed the appeal by R.C.R.No.71 of 2022 3 setting aside the order granting eviction under Section 11(2)
(b) of the Act and dismissed the appeal under Section 11(3) as well as the cross objection filed by the landlord. Hence, the petitioner came up with this revision under Section 20 of the Act.
3. We heard the learned counsel appearing for the petitioners in extenso.
4. The petition for eviction was filed contending that the revision petitioner-tenant defaulted payment of rent which exceeds Rs.50,000/- and that the respondent-landlord's son Vijayachandran, who is a dependent on him, needs the shop room to start a computer centre. The tenant resisted the prayer for eviction contending that her father had taken the room on rent from 1992 onwards and from 1995, the tenant is running a book stall in it and that the tenant is eking her livelihood from the business conducted in the shop room. It was further contended that after 01.01.2015, an amount of Rs.34,500/- was paid and Rs.1,50,000/- was spend by the tenant for doing the maintenance work in the petition R.C.R.No.71 of 2022 4 schedule building. She also contended that the need put forth by the respondent herein-landlord for his son is not bona fide and one of the rooms is lying vacant in the petition schedule building. During the pendency of the petition, the landlord died and his son, Vijayachandran was impleaded as his legal representative as additional 2nd petitioner in the Rent Control Petition.
5. PW1 and DW1 were examined and Exts.A1 to A6 and B1 to B9 were received in evidence before the Rent Control Court. The contentions raised by the tenant that she spend Rs.1,50,000/- for renovation of the building and that she was eking her livelihood from the business conducted in the shop room and that there is no bona fide need for the respondent's son were turned down by the Rent Control Court. Further, it was found that the tenant has kept the rent in arrears and the need urged by the landlord for his son were found to be bona fide and further found that the tenant failed to prove that there was no other building or shop room available in the locality for her to carry on the trade or R.C.R.No.71 of 2022 5 business. The Rent Control Court also referred to the Judgment of this Court reported in R.C.Warrier v.Leshmikutty Warassiar (1986 KHC 491) wherein it was held that the word 'bona fide' denotes something less than absolute necessity. The court below also relied on the judgment in Shahul Hameed.A. v. P.E.Abdu Razak (2016 (5)KHC 820) wherein it was held that the burden to prove both the ingredients of the second proviso to S.11(3) of the Act is on the tenant. The tenant failed to prove the income she derived from the business conducted in the shop room and further failed to prove that no other building or shop room is available in the locality for her to carry on the trade or business. It was found that the landlord was entitled to get an order of eviction under Section 11(2) (b) and 11(3) of the Act. The prayer of the landlord for recovery of arrears of rent from the tenant was rejected. The order of eviction thereby passed by the Rent Control Court was assailed before the Appellate Authority by the tenant. The landlord also filed a cross objection against the rejection of his prayer to grant recovery R.C.R.No.71 of 2022 6 of rent, by the Rent Control Court. The Appellate Authority considered the matter in detail and after a re-appreciation of evidence, set aside the order granting eviction under Section 11(2)(b) of the Act and dismissed the appeal under Section 11(3) and also dismissed the cross objection filed by the landlord. Now, the tenant would contend that the said findings under section 11(3) are unsustainable in law and against facts. The landlord has not filed any revision petition against the dismissal of the cross-objection.
6. The learned counsel appearing for the revision petitioner-tenant would contend that the original petitioner- landlord in the RCP has not pleaded that the respondent herein (the additional second petitioner in the RCP), for whom the need is raised, is depending on the original petitioner- landlord for occupying the room, which is sine quo non, for the purpose of maintaining a petition under section 11(3) of the Act. The learned counsel submits that the additional 2 nd petitioner was impleaded on the basis of a Will, which is not proved. The claim for bona fide need also is not proved by R.C.R.No.71 of 2022 7 adducing evidence. The learned counsel further submits that the revision petitioner-tenant has positively asserted that there is no vacant room in the locality for her, to shift her business, was not effectively challenged by the respondent- landlord.
7. The issue that arises for consideration in this Rent Control Revision is whether any interference is warranted on the Judgment dated 17.03.2021 whereby the order of eviction granted by the Rent Control Court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 in R.C.P No.3 of 2018 stands confirmed.
8. 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, 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 R.C.R.No.71 of 2022 8 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.
9. In Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476] the Apex Court reiterated the principle laid down in Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] that a bona fide requirement must be an outcome of a sincere and honest R.C.R.No.71 of 2022 9 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.
10. 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 R.C.R.No.71 of 2022 10 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) of the Act.
11. The case of the original petitioner landlord was that, his son is a computer expert and he is unemployed and dependent on the petitioner. The original petitioner was in R.C.R.No.71 of 2022 11 need of the petition schedule room and other vacant room lying nearby for his dependent son. During the pendency of the petition, the original petitioner died and his son was impleaded as additional 2nd petitioner. He was examined as PW1. He deposed that on the death of his father, the petition schedule rooms devolved upon him as per a registered Will bearing No.39/2017 of the SRO, Ochira. He further deposed that he is having knowledge in computer science and is not having any job. He was depending on his father for his livelihood and he wants to start a computer centre of his own, for making an earning and requires the petition schedule room and the room lying vacant adjacent to it. The tenant did not dispute the fact that the additional 2 nd petitioner-landlord is a legal heir of the deceased original petitioner and had not disputed the evidence of PW1 that the petition schedule building had devolved upon him as per a registered Will. The main argument was based on the bona fides of the need projected by contending that the additional 2 nd respondent is employed in a company and there is no need for him to start R.C.R.No.71 of 2022 12 a business. While cross-examination of PW1, nothing material was brought out to disbelieve the evidence of PW1. The tenant did not dispute the evidence of PW1 that the petition schedule building had devolved upon him as per a registered Will. It is in the revision petition that the revision petitioner- tenant has raised dispute regarding the Will. Further it was found by the court below that the revision petitioner-tenant failed to prove the fact that the landlord is having any other vacant building in the locality other than vacant shop room which the landlord requires for his business. The said contention is not proved even by taking out a commission.
12. Regarding the 2nd proviso, it is settled law that the burden is on the tenant to prove that she is depending for her livelihood mainly on the income derived from the business carried on in the building. The court below found that though RW1 has stated that she is mainly depending upon the business conducted in the premises, she has not stated anything about the income she is deriving from that business. Thus the revision petitioner-tenant has failed to establish that R.C.R.No.71 of 2022 13 she is entitled to the protection under the 2 nd proviso to Section 11(3) of the Act. In the said circumstances, it can only be found that the need urged by the respondent-landlord is bona fide. There is nothing on record to doubt his honesty or sincerity in the need projected by him. Therefore, we hold that the finding rendered by the courts below ordering eviction under Section 11(3) of the Act is sustainable in law. Further we hold that the need put forth by the landlord is genuine, real and honest and that the tenant has failed to satisfy the first and second provisos to Section 11(3) of the Act. It is out of an honest and genuine desire, the landlord has approached the court below with a prayer for eviction and that cannot be interfered with by this Court in exercise of its revisional jurisdiction under Section 20 of the Act.
13. In the said circumstances, the findings of the courts below cannot be found fault with. We do not find any reason to interfere with that finding.
14. Having considered the entire matter in detail, we hold that this revision can only fail and hence we dismiss it. R.C.R.No.71 of 2022 14
15. Taking note of the request made by the learned counsel for the revision petitioner-tenant to grant sufficient time for vacating the premises, we grant time up to 30.04.2023 to surrender vacant possession of the petition schedule shop room, subject to the following conditions:
(i) The respondent-tenant in the Rent Control Petition (revision petitioner herein) shall file an undertaking before the Rent Control Court or the Execution Court, as the case may be, within two weeks from today, that she will vacate the shop room, on or before 30.04.2023.
(ii) The respondent-tenant in the Rent Control Petition shall continue to pay the rent till 30.04.2023, 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 shop room will stand cancelled automatically and the petitioner-
landlord (respondent herein) will be at liberty to proceed with the execution of the order of eviction.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE sd/-
SHOBA ANNAMMA EAPEN, JUDGE MBS/