Kovukkal Sajeev Kumar vs Thayyilakkal Abdul Latheef on 3 January, 2024

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Kerala High Court

Kovukkal Sajeev Kumar vs Thayyilakkal Abdul Latheef on 3 January, 2024

The petitioner is the respondent-tenant in R.C.P.No.51 of 2015 on the file of the Rent Control Court (Munsiff), Thalaserry, which was one filed by the respondent-landlord, invoking the provisions 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 demolish the petition schedule shop rooms and use that space as parking area and exit of his newly constructed building. Before the Rent Control Court, the tenant entered appearance and filed counter, denying the bona fide need projected in the rent control petition and also arrears of rent. Before the Rent Control Court, Exts.A1 to A7 were marked and PWs 1 and 2 were examined on the side of the landlord. Exts.B1 and B2 were marked and RWs 1 and 2 were examined on the side of the tenant. After considering the pleadings and evidence on record, the Rent Control Court granted an order of eviction under Sections 11(2)(b) and 11(3) of the Act. By the order dated 27.07.2018, the Rent Control Petition 3 R.C.Rev.No.252 of 2023 was allowed and the tenant was directed to surrender vacant possession of the petition schedule shop rooms to the landlord within one month from the date of that order, under Section 11(3) of the Act, failing which the landlord will be at liberty to get the order executed through the process of law. The tenant was given liberty to deposit the entire arrears of rent with interest and cost within one month from the date of that order. The order passed under Section 11(2)(b) of the Act was made subject to the provisions under Section 11(2)(c).

2. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.117 of 2018 before the Rent Control Appellate Authority (Addl. District Judge-II), Thalassery, invoking the provisions under Section 18(1)(b) of the Act. That appeal was allowed in part, setting aside the order of eviction granted by the Rent Control Court under Section 11(2)(b) of the Act. However, the order of eviction under Section 11(3) of the Act was confirmed. Accordingly, the tenant was directed to give vacant possession of the petition schedule shop rooms to the landlord, within one month from the date of that order, failing which the landlord will be at liberty to get the order executed through the process of court.

R.C.Rev.No.252 of 2023

3. Challenging the order of eviction granted by the Rent Control Court and the Rent Control Appellate Authority under Section 11(3) of the Act, the tenant is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.

4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for respondent-landlord.

5. During the course of arguments, the learned counsel for the petitioner-tenant would confine the challenge made in this revision on the finding of the Rent Control Court and the Rent Control Appellate Authority 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. The learned counsel would submit that regarding the second proviso to Section 11(3) of the Act, no materials were placed before the Rent Control Court to show that the tenant is entitled to the protection under that proviso.

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 5 R.C.Rev.No.252 of 2023 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.

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 6 R.C.Rev.No.252 of 2023 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 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 7 R.C.Rev.No.252 of 2023 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.

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) 8 R.C.Rev.No.252 of 2023 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 (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 9 R.C.Rev.No.252 of 2023 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 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, 10 R.C.Rev.No.252 of 2023 of course, subject to the first and second provisos to Section 11(3).

12. In the instant case, before the Rent Control Court, the case of the landlord was that the petition schedule shop rooms (two rooms) are let out to the tenant on a monthly rent of Rs.2,400/-. The landlord constructed a new commercial complex behind the petition schedule building. In order to provide car parking facility and an exit to the newly constructed commercial complex, the landlord bona fide needs the vacated premises of the petition schedule shop rooms. The tenant contended that even if he is not evicted from the petition schedule shop rooms, the newly constructed building will get a good access and parking area, since the landlord had already evicted other shop rooms in front of the newly constructed building. The tenant contended that he is depending solely on the income derived from the business in Ayurvedic medicines and Allopathy medicines conducted in the petition schedule shop rooms, for his livelihood.

13. The landlord, who was examined as PW1, deposed before the court in tune with the averments in the Rent Control Petition. Exts.A1 to A7 were marked on the side of the landlord. During cross-examination, the landlord affirmed that he bona fide need the petition schedule shop rooms to provide car parking area 11 R.C.Rev.No.252 of 2023 and exit for the newly constructed commercial complex. PW1 has also deposed that, since the tenant did not vacate the petition schedule shop rooms, he could not open the newly constructed commercial complex. PW1 has also deposed that the Secretary of Panoor Grama Panchayat has issued Ext.A7 notice dated 28.11.2013 directing him to demolish the newly constructed commercial complex, since there is no sufficient parking space.

14. The tenant, who was examined as RW1, admitted the fact that adjacent shop rooms of the petition schedule shop rooms were demolished, after vacating the tenants in those shop rooms. RW1 has also admitted that the landlord has not started using the newly constructed commercial complex, which is constructed behind the petition schedule shop rooms. RW1 has also admitted that he has filed a suit against the landlord, before the Munsiff Court, Thalassery, demanding two rooms in the newly constructed commercial complex, and he agreed to vacate the petition schedule rooms.

15. In paragraph 8 of the impugned order, the Rent Control Court found that the landlord has already constructed a new commercial complex behind the petition schedule shop rooms and he had demolished the vacated shop rooms which were situated 12 R.C.Rev.No.252 of 2023 in front of that commercial complex, to provide access to that building. If the landlord bona fide needs the space covered by the petition schedule shop rooms also, in order to extend the car parking area and to provide exit for the newly constructed commercial complex, that cannot be considered as a ruse for eviction of the tenant from the petition schedule shop rooms.

16. In the impugned order, the Rent Control Court noticed that the tenant as RW1 admitted that the newly constructed commercial complex of the landlord is in 'C' shape and the petition schedule shop rooms is a hindrance for that commercial complex. RW1 added that only one shop room blocks the view and access of the newly constructed building. RW2, who is the witness in Ext.A1 kachit, deposed that one can enter into the newly constructed building only after passing a portion of the petition schedule shop rooms.

17. In Krishan Menon v. District Judge [1988 (1) KLT 131] a learned Single Judge of this Court held that though the need under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act is of the building, the occupation is not confined to the building as such. The definition of 'building' contained in clause (1) of Section 2 of the Act includes the garden, grounds, etc., 13 R.C.Rev.No.252 of 2023 which are appurtenant to the building. It is important to note that the definition includes any building also besides part of a building. The controlling words in Section 2 of the Act direct that the definition is not meant to be exhaustive nor restrictive because even the items enumerated and included are subject to variations if 'the context otherwise requires'. The definition provides sufficient play at the joints while fixing the parameters of the scope of the expression 'building' in different situations. It enables the Rent Control Authorities to mould the reliefs in accordance with the exigency in each case. The contextual flexibility permuted in clause (1) of Section 2 is meant to be used according to the particular need in different situations. If Section 11(3) of the Act is to be given a narrow interpretation that it could be applied only if the building is kept up as such even after the eviction, such an interpretation is likely to bring about unjust consequences. Eg:- A person owning large vacant area behind an old or outmoded building abutting a main road in a commercially important locality of the town, is desirous of utilising the remaining vacant area for construction of a multi-storied building complex or a big hotel or a cinema theatre. Can he not use the space occupied by the old building as car park, or as passage to the new building? If he 14 R.C.Rev.No.252 of 2023 cannot do so, the entire rear portion may become practically useless. This would be one of the hard consequences if Section 11(3) of the Act is given a narrow or strict interpretation. Such consequences can be averted if Section 11(3) is given a wider interpretation, as was done by Krishnamoorthy Iyer, J. in Sarada v. Kumaran [1969 KLT 133].

18. After analysing the pleadings and evidence on record, the Rent Control Court 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. In the impugned judgment, the Rent Control Appellate Authority found that the newly constructed commercial complex is on the back side of the petition schedule shop rooms occupied by the tenant. As evident from Ext.A6(a) plan prepared by the Advocate Commissioner, which forms part of Ext.A6 report, the rooms in the newly constructed commercial complex were constructed facing towards north. Without demolishing the petition schedule shop rooms, the shop rooms in the newly constructed commercial complex would not get access from the road as well as parking area. Therefore, the Appellate Authority found that the bona fide need projected by the landlord is the actual need, which is not a 15 R.C.Rev.No.252 of 2023 mere fanciful or whimsical desire, which is also not a ruse to evict the tenant from the petition schedule shop rooms.

19. Before the Appellate Authority, the tenant claimed the benefit of the second proviso to Section 11(3) of the Act. The Appellate Authority confirmed the finding of the Rent Control Court on the above aspects, since the tenant failed to discharge his onus in proving those aspects. The reasoning of the Rent Control Court or that of the Appellate Authority in the impugned order/judgment, for granting an order of eviction under Section 11(3) of the Act is neither perverse nor patently illegal.

20. 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 16 R.C.Rev.No.252 of 2023 proceedings before the High Court or District Court under sub- section (1) shall be in its discretion.

21. 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 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.

22. In T. Sivasubramaniam v. Kasinath Pujari [(1999) 17 R.C.Rev.No.252 of 2023 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.

23. 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 18 R.C.Rev.No.252 of 2023 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 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.

24. 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 19 R.C.Rev.No.252 of 2023 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.

25. 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.

26. 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, 20 R.C.Rev.No.252 of 2023 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.

27. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2) KLJ 164], a Division Bench of this Court held that, the High 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.

28. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of 21 R.C.Rev.No.252 of 2023 the Rent Control Court and the Rent Control Appellate Authority while ordering eviction of the tenant under Section 11(3) of the Act is neither perverse nor patently illegal. It cannot also be said that, while ordering the eviction of the tenant under Section 11(3) of the Act, the Rent Control Court or the Rent Control Appellate Authority has committed a manifest error, warranting interference in exercise of the revisional jurisdiction of this Court 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.

29. In the result, the challenge made in this Rent Control Revision against the order of eviction granted by the Rent Control Court and the Appellate Authority under Section 11(3) of the Act fails and the Rent Control Revision is accordingly dismissed.

30. The learned counsel for the petitioner-tenant would submit that the tenant is conducting Ayurveda medical shop and Allopathic medical shop in the petition schedule shop rooms. The tenant may be granted a reasonable time of six months to give vacant possession of the petition schedule shop rooms.

31. On the above request made by the learned counsel for the petitioner-tenant, the learned counsel for the respondent- 22 R.C.Rev.No.252 of 2023 landlord would submit that a reasonable period of three months can be granted to the tenant for surrendering vacant possession of the petition schedule shop rooms, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default.

32. The learned counsel for the petitioner-tenant would submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule shop rooms to the landlord.

33. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting three 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 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 23 R.C.Rev.No.252 of 2023 this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule shop rooms to the petitioner-landlord within three months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop rooms 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 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 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 shop rooms will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

G. GIRISH, JUDGE MIN

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