Chethil Tharemmal Rasheeda vs Peedikayilakath Muhammed on 7 March, 2024

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Kerala High Court

Chethil Tharemmal Rasheeda vs Peedikayilakath Muhammed on 7 March, 2024

Aggrieved by the concurrent findings of the Rent Control Court, Payyoli and the Rent Control Appellate Authority (Additional District Judge-III), Kozhikode, directing eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), the tenant is here before this Court with this revision.

2. The respondent-landlord instituted R.C.P.No.4 of 2017 before the Rent Control Court, seeking eviction of the petitioner- tenant on the ground of arrears of rent, and bona fide need for the commencement of a fancy and cosmetic items shop. The Rent Control Court allowed the above R.C.P under Section 11(3) of the Act, and passed the order dated 02.02.2022, directing the tenant to put the landlord in vacant possession of the petition schedule shop rooms within 30 days. Though the tenant challenged the above order before the Rent Control Appellate Authority (Additional District Judge-III), Kozhikode in the R.C.A No.68 of 2022, she could not succeed. The Rent Control Appellate Authority, Kozhikode upheld the findings of the Rent Control Court and dismissed the appeal on 12.12.2023. In the present revision, the petitioner-tenant would contend that the findings of the Rent Control Court and the Appellate Authority, are illegal, irregular and improper. 3 R.C.(Rev) No.65 of 2024

3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.

4. The rental arrangement between the landlord and the tenant is not in dispute in this case. Though the respondent-landlord had alleged that the petitioner-tenant defaulted payment of rent, the calculation statement filed before the Rent Control Court, after the institution of a petition under Section 12(3) of the Act, revealed that the entire rent arrears till the date of statutory notice were remitted by the tenant, and hence, the Rent Control Court declined the prayer for eviction under Section 11(2)(b) of the Act. The above finding has not been challenged by the landlord in cross objection or cross appeal.

5. As regards the claim for eviction on the ground of bona fide need, the contention of the respondent-landlord is that the petition schedule shop rooms are required for the commencement of business of fancy and cosmetic items by him and his wife. The respondent-landlord adduced evidence before the Rent Control Court as PW1 in support of the above need to have possession of the petition schedule shop rooms. The evidence on record does not bring out anything to doubt the veracity of the above requirement projected by the landlord, for seeking eviction of the petitioner- tenant.

R.C.(Rev) No.65 of 2024

6. 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.

7. 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, and held that the question as to whether a 5 R.C.(Rev) No.65 of 2024 particular need is bona fide or not has to be judged by the Court, placing itself in the position of landlord.

8. 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.

9. 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, of course, subject to the first and second provisos to Section 11(3).

R.C.(Rev) No.65 of 2024

10. In Aboobacker.C.P v. K.T.Sreelatha Nambiar [2022 KHC 5100] also, a Division Bench of this Court in which one among us, [Anil K. Narendran, J.] was a party, has held that once, on the basis of 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 the said Act.

11. As regards the onus of proving requirements of provisos 1 and 2 of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, it is well-settled that it is upto the tenant to bring out the requisite particulars through convincing evidence, for seeking the protection of the said provisos.

12. Following various earlier decisions of this Court, it has been held by a Division Bench of this Court in Chethil Tharemmal Rasheeda v. Peedikayilakath Muhammad [2021 (6) KHC 723], in which one among us, [Anil K. Narendran, J.] was a party, that the burden to prove the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, is on the tenant. So also, in Aboobacker.C.P v. K.T.Sreelatha Nambiar (supra) it has been held that it is the absolute burden of the tenants to prove both 7 R.C.(Rev) No.65 of 2024 limbs of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act.

13. As far as the present case is concerned, the petitioner- tenant could not bring out anything to show that she is entitled for the protection and privilege of provisos 1 and 2 of Section 11(3) of the Act. Nor could she dislodge the logical conclusion which could be drawn from the evidence adduced by the landlord that the need to have possession of the building for the commencement of a fancy and cosmetic items shop, is natural, real, sincere and honest. Thus, the conclusion is irresistible that the findings of the Rent Control Court and Appellate Authority are neither perverse nor patently illegal, warranting interference in this revision.

14. When our view, as above, has been made clear in open court, the learned counsel for the revision petitioner-tenant sought eight months' time for the revision petitioner to vacate the petition schedule shop room. The learned counsel for the respondent- landlord opposed the above request stating the reason that such a long period of time would cause further hardship and sufferings to the respondent-landlord who has been prosecuting this proceedings for the eviction of the revision petitioner-tenant right from the year 2016. Having regard to the submissions of the learned counsel for the revision petitioner and the learned counsel for the respondent- 8 R.C.(Rev) No.65 of 2024 landlord on the above aspect, we feel it proper to grant a period of five months' time to the revision petitioner-tenant to vacate the petition schedule shop room, if she is ready to abide by the terms and conditions enumerated hereafter in the concluding portion of this order.

In such circumstances, this Rent Control Revision 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 five months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room 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 this order, expressing an unconditional undertaking that she will surrender vacant possession of the petition schedule shop room to the petitioner-landlord within five months from the date of this order and that, she shall not induct third parties into possession of the petition schedule shop room and further that she shall conduct any business in the petition schedule shop room 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 9 R.C.(Rev) No.65 of 2024 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 room 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 jsr/vgd

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