Neeliveetil Pankajakshan vs Pokkinari Hashim on 27 March, 2024

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Kerala High Court

Neeliveetil Pankajakshan vs Pokkinari Hashim on 27 March, 2024

The petitioner is the respondent-tenant in R.C.P.No.35 of 2017, on the file of the Rent Control Court (Munsiff), Koyilandi, which is a petition filed by the respondents herein-landlords under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule shop room. 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 landlords to start business in cement and sand (poozhi) in sacks by stocking it in the petition schedule shop room. Before the Rent Control Court, the tenant entered appearance and filed counter. Before the Rent Control Court, the 1st respondent herein was examined as PW1 and Exts.A1 to A6 were marked on the side of the landlords. On the side of the tenant, he was examined as RW1 and Exts.B1 to B20 were marked. The report filed by the Advocate Commissioner was marked as Ext.C1. After considering the pleadings and evidence on record, the Rent Control Court granted an order of eviction under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Act and the tenant was directed to give vacant possession of the petition schedule shop room to the landlords 4 R.C.R.No.83 of 2024 within one month from the date of that order.

2. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.10 of 2022 before the Rent Control Appellate Authority (Additional District Judge-I), Kozhikode, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 31.07.2023, thereby confirming the order of eviction granted by the Rent Control Court. Feeling aggrieved by the order of eviction concurrently passed by the Rent Control Court as well as the Appellate Authority, the tenant is before this Court in this Rent Control Revision filed under Section 20 of the Act.

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

4. Insofar as the order of eviction under Section 11(2)(b) of the Act is concerned, the learned counsel for the petitioner-tenant would submit that the contention of the tenant before the Rent Control Court as well as the Appellate Authority is about adjustment of the rent advance and the amount spent by the tenant towards improvements in the petition schedule shop room, against the arrears of rent.

5. The above aspect is covered by the decision of this Court in Gopala Panicker Baiju and another v. Mallika [2018 (5) KHC 95], wherein a Division Bench of this Court held 5 R.C.R.No.83 of 2024 that the relevant factors from which 'arrears of rent' can be inferred are the rate of rent and period of default. In that decision, it was held that neither Section 11(2)(b) nor Section 12 of the Act recognises or permits any kind of set off, adjustment or counter claim by the tenant towards arrears of rent or admitted arrears. Paragraph 8 of that decision reads thus:

"8. In this context, it is to be borne in mind that any kind of set off or adjustment towards arrears of rent cannot be accepted, while considering an application under S.12 of the Act, as such counter claims require enquiry and adjudication. Neither S.11(2)(b) nor S.12 recognises or permits any kind of set off, adjustment or counter claim by the tenant towards arrears of rent or admitted arrears. The enabling provision which permits set off towards rent is S.17(2) of the Act and the same is permissible, where an order to that effect is passed by the Accommodation Controller, on satisfaction of the failure on the landlord to attend to maintenance and necessary repairs of the building."

6. Following the law laid down in Gopala Panicker Baiju, a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a party, held in Nandanam Tiles & Sanitaries (P) Ltd. v. Abdul Gaffur [2022 (4) KHC 201] that the only enabling provision which permits set off towards rent is Section 17(2) of the Act and the same is permissible where an order to that effect is passed by the Accommodation Controller 6 R.C.R.No.83 of 2024 on satisfaction of the failure of the landlord to attend to maintenance and necessary repairs of the building.

7. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the reasoning of the Rent Control Court as well as the Appellate Authority while granting an order of eviction under Section 11(2)(b) of the Act is either perverse or patently illegal and it cannot also be said that while arriving at such a conclusion, the authorities have committed any manifest error.

8. Insofar as the order of eviction granted under Section 11(4)(iii) of the Act is concerned, such a finding of the Rent Control Court is based on Ext.C1 report of the Advocate Commissioner, which contains the details of the rooms, which are in the ownership and occupation of the tenant. The reasoning for granting an order of eviction under Section 11(4)(iii) of the Act is neither perverse not patently illegal, which requires no interference in this Rent Control Revision.

9. Insofar as the order of eviction granted under Section 11(3) of the Act, during the course of arguments, the learned counsel for the petitioner-tenant would confine the challenge made in this Rent Control Revision against the finding of the Rent Control Court as well as the Appellate Authority that the 7 R.C.R.No.83 of 2024 need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is bona fide.

10. 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 suitable building available in the locality for such person to carry on such trade or business.

11. In Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476] the Apex Court reiterated 8 R.C.R.No.83 of 2024 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.

12. In Nalakath Saidali Haji v. Kalluparamba Musthafa and others [2015 (4) KHC 815], a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in Kizhakkayil Suhara v. 9 R.C.R.No.83 of 2024 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 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.

R.C.R.No.83 of 2024

13. 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.

14. 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 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 11 R.C.R.No.83 of 2024 (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.

15. In Gireeshbabu T.P. v. Jameela and others [2021 (5) KHC SN 30], a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that, in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent 12 R.C.R.No.83 of 2024 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).

16. 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 of the Act is that of the landlords to start the business in cement and sand (poozhi) in sacks by stocking it in the petition schedule shop room. That need was substantiated by the oral testimony of the 1st respondent herein, who was examined as PW1. After considering the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority arrived at a conclusion that the need projected in the rent control petition for seeking an order of eviction under Section 11(3) of the Act is bona fide. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said 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 13 R.C.R.No.83 of 2024 Control Revision.

17. 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 proceedings before the High Court or District Court under sub-section (1) shall be in its discretion.

18. 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 14 R.C.R.No.83 of 2024 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 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.

19. 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 20 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 15 R.C.R.No.83 of 2024 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.

20. 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. 16 R.C.R.No.83 of 2024 On examining the impugned judgment of 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.

21. 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.

22. 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, 17 R.C.R.No.83 of 2024 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.

23. 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.

24. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2) KLJ 164], a Division Bench of this Court held that, the High 18 R.C.R.No.83 of 2024 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.

25. 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 while ordering eviction of the tenant under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Act is neither perverse nor patently illegal. It cannot also be said that, while ordering eviction of the tenant under the aforesaid Sections 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 Sections 11(2)(b), 11(3) and 11(4)(iii) of the Act.

26. The learned counsel for the petitioner-tenant would submit that the tenant is conducting business in the petition 19 R.C.R.No.83 of 2024 schedule shop room. The tenant may be granted at least six months' time to vacate the petition schedule shop room. The tenant is prepared to clear the entire dues, if any, towards arrears of rent, within a time limit that may be fixed by this Court, and he shall continue to pay monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule shop room to the landlords.

27. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment/ order of the Rent Control Appellate Authority and the Rent Control Court; however, by granting four months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondents-landlords, 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 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 petitioners-landlords within four months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further he shall conduct any business in the petition schedule shop room only on the 20 R.C.R.No.83 of 2024 strength of a valid licence/permission/consent issued by the local authority/statutory authorities;

(ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within 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 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 petitioners-landlords will be at liberty to proceed with the execution of the order of eviction.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE AV/1/4

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