Sugathan vs Shaji Das on 24 March, 2022

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Kerala High Court

Sugathan vs Shaji Das on 24 March, 2022

The revision petitioner-tenant is the respondent in R.C.P.No.13 of 2010 on the file of the Rent Control Court (Munsiff), Wadakkancherry. The respondent herein-landlord has filed that rent control petition seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per order dated 30.07.2014, the Rent Control Court ordered eviction. The petitioner preferred an appeal under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (Additional District Judge-I), Thrissur, dismissed the appeal as per its judgment dated 09.07.2021 in R.C.A.No.76 of 2014. Feeling aggrieved thereof, this revision petition under Section 20 of the Act has been preferred by the petitioner-tenant.

2. The respondent is the owner of the petition schedule shop room and its western adjoining room. He has decided to start a stationery business in the petition schedule shop room and also in the adjoining room. The rooms are to 3 R.C.Rev.No. 190 of 2021 be joined together to start the business. For such a need, the respondent sought eviction of the petitioner under Section 11(3) of the Act.

3. The petitioner filed counter statement with the following contentions:

While he was possessing the petition schedule shop room as a tenant, an agreement for sale of the same to the petitioner was orally entered into by the respondent. Rs.4 lakhs was agreed to be the sale consideration, of which Rs.1 lakh was paid as advance. Therefore, there is no landlord-

tenant relationship and petitioner is not liable to be evicted from the petitioner schedule shop room. The need urged by the respondent is not bona fide. He is in possession of other vacant rooms. He can start the business in the neighbouring room, if he really wants it. His intention is not to start any business and that is why he is claiming eviction of the petitioner, instead of starting his business in the adjoining room. The petitioner is depending for his livelihood from the income derived from the business in the petition schedule 4 R.C.Rev.No. 190 of 2021 shop room and no other convenient room is available in the locality to shift his business.

4. Before the Rent Control Court, PW1 and RW1 were examined. Exts.A1 to A8, B1, B2 and C1 were admitted in evidence.

5. Today, when the matter came up for admission, we have heard the learned counsel appearing for the petitioner in detail.

6. The learned counsel appearing for the petitioner raised contentions regarding maintainability of the rent control petition on two grounds. First is that he has been in occupation of the petition schedule shop room on the basis of an agreement for sale entered into between himself and the respondent, as per which he agreed to sell the petition schedule shop room to the petitioner for a sale consideration of Rs.4 lakhs. The second is that in April, 2010, rent for the petition schedule shop room was enhanced on mutual agreement, and therefore, the rent control petition filed in June, 2010, is not maintainable.

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7. The petitioner mooted that an agreement for sale was entered into orally and as its part performance, he continued to be in possession of the petition schedule shop room. Rs.1 lakh was claimed to have been paid as advance sale consideration as well. Other than raising such a contention, no evidence in support thereof has been let in. Of course, RW1, the petitioner deposed that there was such an agreement. Regarding entering into such an agreement or payment of money there is no document. An oral agreement cannot be the basis to claim benefit under Section 53A of the Transfer of Property Act, 1882 for, a written agreement is mandatory to attract Section 53A of the Transfer of Property Act.

8. In Safeena Salim v. P. A. Subair [2014 (4) KLT 752] a similar question was considered by this Court. It was held, "The trump card plea of the tenants is that they had a contract of sale in their favour and, therefore, the landlord's right does not continue to be what it was as between the landlord and the tenants. It is 6 R.C.Rev.No. 190 of 2021 submitted that, as of now, the suit for specific performance of that contract of sale is pending trial. Suffice it for us to say, that it is trite law that a contract of sale does not create any interest in immovable property. Nor does a decree or order under the Specific Relief Act directing specific performance of a contract of sale by itself amount to create an interest in immovable property either by way of charge or otherwise. It is trite law that even such a decree or order has to undergo the process of execution or enforcement through the competent Court, resulting in transfer of property, either voluntarily or by intervention of Court. It is only then that the transferee under the contract of sale can claim that the said contract has got transformed into a real right in the property. This is the law. That being so, we are unable to conceive that merely because a tenant in possession obtains a contract of sale, there could be any transmutation of the rights and the characteristics of parties for a Court to assume that the possession of a building tenant under Act 2 of 1965 should be treated as one who has been put to be in continuing possession in part performance of the contract of sale"

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9. In Andrews V. M. v. Daisy Punnan and others [2016 (2) KHC 37 : 2016 (2) KLJ 59] this Court held, "It is settled law that merely because the tenant entered into an agreement for sale with the landlords is not a ground to be taken to refer the parties to Civil Court as the agreement to sell will not confer any title on the tenant and the relationship between them will continue as landlord and tenant. So, on that ground the jurisdiction of the Rent Control Court is not taken away from considering the question under S.11 of the Act. This was so held in the decisions reported in Robert Welress v. Mammu, 1985 KHC 251 : 1985 KLT 1121 : 1985 KLJ 869 and Hajira Umma v. Razak, 1991 KHC 488 : 1991 (2) KLT 700 : 1992 (1) KLJ 134 : ILR 1992 (1) Ker. 537 by two Single Benches of this Court which we feel is correct in law."

10. In the light of the principles laid down in the above- said decisions, it cannot be said that the landlord-tenant relationship ceased to exist, even if there was an agreement for sale. In the said circumstances, we are of the view that the contention of the petitioner is absolutely untenable.

11. The petitioner has no case that any fair rent has been fixed. Simply because the parties have agreed to 8 R.C.Rev.No. 190 of 2021 enhance the prevailing rate of rent, there is no bar for the landlord to claim eviction in the event of arising any of the grounds provided for in Section 11 of the Act. Therefore, the said second contention is also untenable.

12. The respondent deposed in court as PW1 that he remained jobless and it has become a necessity for him to start a business of his own. Therefore, he decided to start a stationery business. He is already in vacant possession of the western adjoining room. That is a small room, which is not at all sufficient to accommodate a stationery business. Therefore, his plan is to unite the petition schedule shop room and the western one, in order to accommodate his stationery business. As regards his capacity to start such a business, there has not been any challenge. Although it is contended that such a need was urged by the respondent without bona fides, nothing to doubt the veracity of PW1 has come out. After considering the said evidence, the courts below found that the need put forth by the respondent is honest, sincere and bona fide.

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13. 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 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 10 R.C.Rev.No. 190 of 2021 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.

14. 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 11 R.C.Rev.No. 190 of 2021 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.

15. 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. 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 12 R.C.Rev.No. 190 of 2021 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.

16. In view of the above legal principles, it is not available for us to reach a different finding, especially when the Appellate Authority, being the first appellate court, has considered and marshalled the entire evidence in great detail and confirmed the finding of the Rent Control Court.

17. The petitioner raised a contention that since the respondent is already in possession of the room on the western side, he is debarred from claiming eviction of the petitioner in view of the first proviso to Section 11(3) of the Act. No other building is alleged to be in his possession. The respondent set forth a definite contention that he wants not only the petition schedule shop room, but also the western room to start the stationery business. That is a sufficient explanation for not occupying the said room. Therefore, plea 13 R.C.Rev.No. 190 of 2021 under the first proviso to Section 11(3) of the Act does not sound good.

18. The petitioner claimed the benefit of the second proviso to Section 11(3) of the Act. The evidence that came on record, however, makes him totally ineligible to claim that benefit. He is conducting a medical shop in the petition schedule shop room. While examining as RW1, he admitted that he has another medical shop. He also admitted that he owns two rooms in the building to which petition schedule shop room forms a part. That apart, he has three more rooms in the same locality, out of which two rooms are lying vacant. From the said facts, it is revealed that the petitioner has several other sources of income than what is derived from the business in the petition schedule shop room. Vacant rooms are available in the possession of the petitioner himself. In such circumstances, evidence certainly negatives the claim of the petitioner based on the second proviso to Section 11(3) of the Act. After adverting to all such evidence only the courts below rejected the claim of the petitioner for the benefit of the 14 R.C.Rev.No. 190 of 2021 proviso. Therefore, that finding cannot have interference by this Court.

19. 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 15 R.C.Rev.No. 190 of 2021 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.

20. 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.

21. In Thankamony Amma v. Omana Amma [AIR 16 R.C.Rev.No. 190 of 2021 2019 SC 3803 : 2019 (4) KHC 412] after considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh (supra) the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could not re-appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.

22. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it.

23. The learned counsel for the petitioner has made a request to afford nine month's time for vacating the premises pointing out the difficulty in finding out another room and making necessary arrangements for shifting his business.

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24. Having considered all the aspects, we deem it appropriate to grant six months' time to surrender vacant possession of the petition schedule shop room, 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 petitioner-landlord within six 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 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 four 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;

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(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/-

P.G. AJITHKUMAR, JUDGE dkr

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