Judgment:
K. Ramakrishnan, J.
The landlord in R.C.P.No.13 of 2011 on the file of the Rent Control Court, Kochi is the revision petitioner herein. The rent control petition was filed by the landlord for eviction of the petition schedule building from the possession of the respondent on the ground of bonafide need under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter called the Act for short).
2. The case of the petitioner in the petition was that, the petitioner is the absolute owner of the tenanted premises with No.16/990T, which is part of a larger building known as Edathil Buildings . It is a three storied building facing P.T. Jacob Road on its south. The ground floor of the building belongs to the petitioner and the first and the second floor belong to his mother and brother respectively. The respondent is in possession of the petition schedule building on a monthly rent of 1,320/- and other rooms in the petition schedule building are in the occupation of other tenants. The petitioner has decided to start a business in computer services of his own in the petition schedule building to augment his income. He is unemployed and he has no other business. The petition schedule building is one of the four rooms in the front portion of the building in the ground floor facing the main road. It was let out to the respondent for running a bakery in the year 2007 for a period of 11 months from 01.01.2007. Thereafter he abandoned the bakery business and closed the same for sometime and thereafter converted the petition schedule building as a branch office for his out door catering service. When the petitioner decided to start the aforesaid business in the petition schedule room he informed the respondent about his need and requested him to surrender the petition schedule building. He wanted some time to surrender the room. In the meantime the tenants who were occupying the rooms with Nos.16/990L and 16/990M situated on the back portion of the ground floor of the aforesaid Edathil Buildings , expressed their intention to vacate those two rooms. Since they are situated in the back portion of the building, they are not suitable for the petitioner to start his business. When respondent came to know about the proposed surrender, he expressed his desire to shift his business to one of the rooms and the petitioner was also willing to offer one of the rooms to him on payment of fair rent. He agreed to vacate the premises in the month of January, 2011. As promised the tenants of room No.16/990L and 16/990M, vacated the premises in the month of January, 2011. When this was intimated to the respondent, he delayed the surrender on one pretext or other and now it is understood that he has no intention to vacate the premises. The intention to start the business in computer service is bonafide and urgent, he is qualified and having knowledge in that field. If the petition schedule building is obtained for that purpose, the same can be used profitably. The respondent is having other business and also having other place of business. A large number of vacant rooms are available in the locality to shift the business of the respondent. He is not eking his livelihood from the petition schedule building as well. The petition schedule building is the first room from the western end facing P.T. Jacob Road and it is most suitable for the petitioner to start his business. Since the respondent did not vacate the premises, he has no option but to file the application for eviction on the ground of bonafide need under Section 11(3) of the Act.
3. The respondent appeared and filed a counter wherein after admitting that petitioner is the owner of the building and he is his tenant in respect of that building, he contended as follows:
The respondent started his business along with his father in the room owned by the father of the petitioner by name, Sri. Valsan Edathil, in the year 1981. It was situated on P.T. Jacob Road, facing the main road with four shop rooms, each having a carpet area of 175 square feet. In the year 1997, after demolishing the said building, the owner of the building Sri. Valsan Edathil constructed a new shopping cum office complex in the back side of the old room. While vacating the earlier shop room, the owner Sri. Valsan Edathil and the petitioner herein had promised to give a shop room having a bigger area in the front portion of the new building. As agreed earlier, the respondent and his father vacated the old building and moved to the new building. But after constructing the new building, contrary to the earlier agreement, petitioner and his father Sri.Valsan Idathil had given a shop room having only an extent of 100 square feet, which is smaller than the earlier room. Only one tenant M/s. Fashion Flowers was given a shop room having an area of 200 square feet in the front portion as promised by the petitioner. Other earlier tenants like M/s. Bombay Saloon was given a side room having an area of 100 square feet and M/s. Matha Medicals was given a room in the front portion having the area of 100 square feet. The allegation regarding the ownership of the first and second floor of the building with the mother and the brother of the petitioner is not known to him and it has to be proved by the petitioner himself. The averment that the period of tenancy expired long back and he is holding over the same without the authority etc., is false and denied. He is regularly paying the rent without default and the rent is now enhanced to Rs.1,320/-.
4. The allegation that the petitioner bonafide requires the petition schedule building for starting business in computer service, is not correct. Some portion of the ground floor of the new building, which was offered to be given to the earlier existing tenants were kept by the petitioner himself along with his father and they along with another partner has started a new business namely, Classic Super Shoppe in the said front portion of the ground floor having an area of 1100 square feet. The petitioner s wife has started a garment business in the shop room having an area of 400 square feet next to the Classic Super Shoppe. The petitioners brother-in-law has started a hotel business in the ground floor of the said building having an area of 800 square feet by name and style C-Green Hotel . Subsequently all these shops were closed down and shop room where Classic Super Shoppe was being conducted was let out to M/s. Corporation Bank and presently the bank is working there. The shop room wherein the garment shop was run by the wife of the petitioner was let out to. Mr. Paul, who is conducting a photostat and stationary business there. The hotel room was rented out to one Sivan, who is now conducting an Internet cafe and computer service centre. More over five shop rooms having an area of 200 square feet each are rented out to Life Insurance Corporation and another shop measuring 200 square feet was let out to M/s. Little Flower Kuries and one shop room having the same area was let out to Mr. Nazar for running a Gift Gallery. Thereafter the petitioner evicted the shop room occupied by M/s. Matha Medicals, claiming bonafide need and after obtaining an order of eviction under. Section 11(3) of the Act, during March, 2010, he had let out the said room to M/s. Reliance Money Express. The allegations that, the petitioner has decided to start a business in computer service in the petition schedule building for augmenting his revenue and he is unemployed etc., are false and trotted out as a ruse for eviction. He is immensely rich and having many businesses and sources of income. There is presently a computer service shop situated in the building and more over he has no knowledge or experience in the said business. Further he had evicted M/s. Matha Medicals earlier, from a room facing the road, on the ground of bonafide need and subsequently let out the same to another tenant.
5. The allegation that, after obtaining the petition schedule building for running a bakery, he abandoned the room for sometime and it was lying vacant and thereafter he converted that room as the branch office for his out door catering service etc. is false and denied. The business was started in the year, 1981 by his father and himself. Earlier they were doing bakery business and out door catering. After shifting the business to the new building, since bakery business became dull as the present building is situated away from the road and a wall with iron grill was erected by the petitioner in front of the said room, it affected their business. However they managed to overcome the drawback by getting more catering business. In the year 2007, the respondent renovated and furnished the petition schedule building by spending more than Rs.7,00,000/- by taking a loan from M/s. HDFC Bank and State Bank of Travancore for the purpose of doing false ceiling, flooring and electrification work and furnishing the building etc. The allegation that petitioner informed the respondent about his bonafide need and he pleaded for some time to surrender the building etc. are false and hence denied. He has no knowledge regarding the intention of the tenants of the building with No.16/990L and 16/990M and the allegation that the petitioner offered to provide one room etc., is not correct. If the petitioner is intending to start a business in computer service, he can very well do the same in the vacant room presently available in the building. They are situated just opposite to the room where a computer service is being run profitably. Mr. Shivan is now running M/s Spider on line by taking four shop rooms on lease from the petitioner and he had offered to vacate one shop room having an area of 200 square feet to the petitioner, but he told him to continue in possession till any other person takes the same on rent. Similarly, Life Insurance Corporation which is in possession of four rooms having an area of 200 square feet each also offered to vacate one shop room within three months time, but the petitioner was not wiling to accept the same. The claim of the petitioner that he is not in possession of other suitable rooms is not correct. He is depending mainly on the income derived from the business conducted in the petition schedule building and there are no suitable buildings available in the locality. The need alleged by the petitioner is only a ruse to evict the tenant from the plaint schedule building. So he prayed for dismissal of the application.
6. The petitioner examined himself as PW1 and Exts.A1 to A4 were produced and marked on his side. The respondent was examined as RW1 and Exts.B1 to B6 were marked on his side. The commissioner was examined as CW1 and Ext.C1 was marked through him. Ext.X1 was also marked. After considering the evidence on record, the court below found that the need alleged by the petitioner is not genuine as he had not occupied the room which came into his possession and the reasons stated by him for non-occupation of the same cannot be said to be a special reason so as to overcome the bar under the first proviso to Section 11(3) of the Act and dismissed the application. Aggrieved by the same, the revision petitioner filed R.C.A.No.96 of 2012 before the Rent Control Appellate Authority, Ernakulam and it was made over to First Additional District Court for disposal and the Rent Control Appellate Authority by the impugned judgment dismissed the appeal confirming the order of eviction passed by the court below. Aggrieved by the same, the revision has been filed by the landlord under Section 20 of the Act.
7. Heard Sri. Babu Karukapadath, learned counsel appearing for the revision petitioner and Sri. T.Krishnan Unni, learned Senior counsel appearing for the respondent.
8. The learned counsel for the revision petitioner argued that the courts below have not properly appreciated the need alleged by the petitioner and also the evidence adduced on this aspects. It is not a case where the landlord had suppressed the fact that he is in possession of vacant room but had mentioned the same in the petition and also given reasons for not occupying the same and also offered reasons as to why he preferred the petition schedule building for starting his intended business. He has also argued that he was even prepared to offer a room which is in his possession for shifting the business of the tenant, that shows his bonafidies, as his intention is not to evict the tenant and let out the room to others for higher rent. The landlord has the right to choose the building in which he intends to start the business and the tenant cannot compel the landlord to occupy the building of the tenant s choice to start a business in that room. The rooms mentioned by the respondent are situated on the back portion of the building, whereas the petition schedule building is facing the main road and that will be more suitable for his business and that can be profitably used by the petitioner. So the courts below were not justified in dismissing the application, as he had given special reasons for not occupying the rooms which fell vacant and he prayed for allowing the petition.
9. On the other hand, the learned senior counsel appearing for the respondent submitted that, it is not the mere desire or fanciful wish of the landlord that has to be considered by the court. The court must consider whether the need alleged is genuine and real and not imaginary. Further the commissioner s report as well as the evidence of RW1 will go to show that the room in the possession of the petitioner is also equally suitable and computer service centre is being conducted by another tenant in one of the rooms which is situate opposite to this room. So he can also use the same for that purpose. Further he had also filed a petition to evict Matha Medicals on the ground of a bonafide need, earlier and after getting a favourable order and getting vacant possession he did not occupy the same, but let it out to others. The rooms in which his brother-in-law and wife had been conducting business were also let out to others. During the pendency of the proceedings, the Life Insurance Corporation as well as the Corporation Bank have vacated the premises and they were let out to others. All these things will go to show that the intention of the petitioner is not bonafide and the reasons stated are not sufficient to overcome the bar under the first proviso to Section 11(3) of the Act. Further, the concurrent findings of the court below on facts after appreciating evidence cannot be interfered lightly by this court, invoking the power under Section 20 of the Act and he prayed for dismissal of the revision petition.
10. Section 11(3) of the Act reads as follows:-
Sec.11(3) - 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 bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him:
Provided that 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:
Provided further that 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:
Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument:
Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that the bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him.
11. A reading of the above section will go to show that in order to get an order of eviction, the landlord has to prove that he bonafide requires the building for his own occupation or for the occupation by any member of his family dependant on him. The first proviso to Section 11(3) says that, even if the need appears to be bonafide, 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. The second proviso to Section 11(3) says that, even if the Rent Control. Court has found that the need alleged is bonafide, if the tenant is entitled to prove that he is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there are no other suitable buildings available in the locality for such person to carry on such a trade or business, then the court shall not give such direction to surrender possession of the building by the tenant to the landlord. Other two provisos are not much relevant for the purpose of this case. Before going into the facts of this case, let us consider the precedents on this aspects and also the power of the revisional court to interfere with the concurrent findings of the courts below on facts under Section 20 of the Act.
12. Section 20 of the Act reads as follows:-
20. Revision.- (1) 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 things fit.
(2) The costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion.
13. The scope of the power of the revisional court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 has been considered by a constitution Bench of the Apex Court in the decision reported in Hindustan Petroleum Corporation Ltd., v. Dilbahar Singh (C.A.No.6177 of 2004 and connected cases) [2014(4) KLT 182 (SC)]. Since there were conflicting decisions of the Apex Court on this aspect delivered by three Judge Benches namely, Rukmini Amma Saradamma v. Kalliyani Sulochana and others (1993 (1) SCC 499) and Ram Dass v. Ishwar Chander and Others (AIR 1988 (SC) 1422), in which the decision reported in Moti Ram v. Suraj Bhan and Others (AIR 1960 (SC) 655) was followed, the issue was referred to a larger bench. While considering this aspect, the Apex Court also considered the revisional powers provided under other similar rent control enactments as well and observed that, none of the Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the trial court/first appellate authority because on reappreciation of evidence, its view is different from the court/authority below. The consideration or examination of evidence by the High Court in revisional jurisdiction under these aspects is confined to find out whether the finding of fact recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by the court/authority below, if perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or a misreading of evidence or is grossly erroneous that if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to the law. In that event, the High Court in exercise of its revisional jurisdiction under the Rent Control. Court Acts will be entitled to set aside the impugned order, being not legal or proper. The High Court is entitled to satisfy itself about the correctness or illegality or propriety of any decision or order impugned before it as indicated above. However to satisfy itself about the regularity, correctness, legality or propriety of the impugned decision or order, the High Court shall not exercise its power as an appellate court or reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not be equated with the power of reconsideration of all questions of facts as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from any procedural illegality or irregularity.
14. So it is clear from the above decision that the power of the revisional court is limited to consider the legality or propriety of the order passed by the authorities below on facts and if the findings are concurrent findings of fact, normally, the revisional court should not interfere on the ground that a different finding is also possible on a reappreciation of the evidence by the revisional court. Unless the High Court is satisfied that the finding of the court below or the authority below is perverse and appreciation is not proper or it was decided on the basis of no evidence and such a finding could not be possible and allowing such a finding to continue will result in miscarriage of justice, the High Court cannot interfere with the concurrent findings of the court below on facts.
15. In the decision reported in Amarjith Singh v. Smt.Khatoon Quamarain (AIR 1987 SC 741), it has been held that in order to grant eviction on the ground of bonafide need, the landlord has to prove not only that he bonafide requires the building but also to prove that he is not having any other reasonably suitable accommodation for that purpose. In that decision, it has been further held that, if after the need arose the landlord could have taken possession of other reasonable accommodation, not doing so will tell upon his bonafides and in such circumstances, he is disentitled to evict the tenant on the ground of bonafide need.
16. In the decision reported in Deena Nath v. Pooran Lal [(2001) 5 SCC 705], the Supreme Court has held that in order to order eviction on the ground of bonafide 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. The Hon ble the Supreme Court has relied on the decision reported in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222], wherein it has been held The term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by the term requires is much higher than in mere desire. The phrase required bonafide is suggestive of legislative intent that a mere desire which is the outcome of a whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need, which is an outcome of a sincere honest desire in contra distinction with a mere pretense or pretext to evict the tenant on the part of the landlord claiming to occupy the premises for himself or for any other member of the family would entitle him to seek ejectment of the tenant. In the same decision it has been held The High Court (in revision) is obliged to test the order of the rent controller on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence that is for the purpose of ascertaining whether the conclusion arrived at by the rent controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available.
17. In the decision reported in Adil Jamshed Frenchman (dead) by LRs v. Sardar Dastur Schools Trust and others [(2005) 2 SCC 476], it has been held that the question to be asked by a Judge of facts by placing himself in the place of landlord is whether in given facts proved by the materials on record, the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bonafide need or genuine requirement needs practical approach instructed by the realities of life.
18. In the decision reported in K.N. Anantharaja Gupta v. D.V. Usha Vijayakumar (AIR 2008 SC 539), it has been held that when self occupation after reconstruction was alleged by the landlord, alleging that she with her children are residing in the house of her father-in-law and if there is nothing to show that there was any threat of eviction and if the order was passed without considering whether the landlord could be said to be not in possession of reasonably suitable accommodation as also condition to suit house, then the finding of the court below has to be set aside. In that case, it was set aside and remitted to the High Court for proper consideration of that fact.
19. In the decision reported in Abdul Salam v. Sebastian (2013 (4) KLT 592), it has been held that even though the decisions of the apex court and this court has held in revisional jurisdiction, there cannot be a reappreciation of evidence 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 statuary scheme has not been kept in mind and if it requires correction, then court can reappreciate 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 conclusions have been arrived at properly on the pleadings and evidence.
20. It is further held in the same decision 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 in it and need mentioned under Section 11(3) cannot be a mere desire. In that case, since there was no sufficient opportunity given in the absence of plea, it was remitted to the court below to enable the landlord to adduce evidence on that aspect and for fresh consideration by the court below. So it is clear from the above decision that, 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 bonafide and he is not entitled to get eviction under Section 11(3) of the Act.
21. In the decision reported in Thanuja Sunderdas v. Sisirkumar Raj (2008 (4) KLT 248), it has been held that in order to get the benefit of the second proviso to Section 11(3) of the Act, the burden is on the tenant to prove both the limbs and a mere assertion by the tenant that there are no suitable buildings available in the locality alone is not sufficient for shifting the onus of proof to the landlord.
22. In the decision reported in Kurian K.Kuriakose v. Usha Cherian (2008 (1) KLT 739), this court has held that, previous experience to conduct business is not necessary as a pre-condition for seeking eviction on the ground of bonafide need to conduct business. In the same decision it has been held that landlord is not bound to plead in the rent control petition that the tenant is not entitled to the benefit of the second proviso and it has to be pleaded and proved by the tenant, as the burden is on him to prove the ingredients mentioned therein to get the protection. In the same decision it has been held, demand for increased rent by itself is not a ground to reject a claim for eviction on the ground of bonafide need. Same view has been reiterated in the decision reported in Satheesan v. Abdul Rahiman (2003 (3) KLT 1119).
23. In the decision reported in S.J. Ebenezer v. Velayudhan and others (AIR 1998 SC 746), it has been held that mere desire of the landlord is not sufficient to constitute bonafide need, the said desire has to be tested objectively and the burden also lies on the landlord to establish that he genuinely required accommodation. Further in the same decision it has been held that invoking the power under Article 227 of the Constitution of India, thus court cannot substitute its view in the place of views taken by the statuary authority. That was a case where the landlady had filed the application for eviction on the apprehension that the building where she was residing was likely to be acquired by the Government, but later it was revealed that no proceedings to acquire the land has taken place even after the lapse of ten years and in such circumstances, the authorities below found that the need alleged is not bonafide, but only a mere desire and that when challenged under Article 227 of the Constitution of India, the High Court has reversed the finding of the authorities below and ordered eviction and that was set aside by the apex court.
24. In the decision reported in Mathew v. Aruna (2014 (2) KLT 876), this court has held that the question of reasonable sufficiency must be assessed by the court in terms of the nature of business and also in terms of the requirement of the business. In that case, the question of subsequent acquisition of building by the tenant was considered to order eviction under Section 11(4)(iii) of the Act and held that if the business being conducted in the tenant s premises cannot be conveniently and comfortably conducted in the subsequent acquired premises where customers cannot be attracted for such business, the court cannot find reasonable sufficiency as meant under Section 11(4)(iii) of the Act.
25. In the decision reported in Deep Chandra Juneja v. Lajwanti Kathuria (SMT) (Dead) through LRs (2008) 8 SCC 497), it has been held that the landlord is the best judge of his requirement and the courts have no concern to dictate how and in what manner he should live. In the absence of any malice or the reason being not bonafidie, need of the landlord cannot be said to be not genuine, generally. That was a case where the tenant had failed to prove that landlord was in possession of any other suitable building and that was let out to others. So in such circumstances, it has been held that the need alleged by the landlord cannot be said to be not bonafide and concurrent findings of the court below on these aspect could not be interfered with by the revisional authority.
26. In the decision reported in Venugopalan Nair v. Mohamedkunhi (2010 (1) KLT 971), it has been held that rent control court cannot sit in judgment over wisdom of the landlord to identify one among his various tenanted rooms for conducting proposed business. That was a case where the landlord was the owner of several rooms in a building and he wanted to evict a tenant in the upstairs and the tenant contended that the ground floor room will be suitable for that purpose and in such circumstances, this court has held that, court is not expected to sit in judgment over the wisdom of the landlord to identify one among his various tenanted rooms for conducting the proposed business and the power to pick and choose conceded to landlord when landlord has several tenants has received recognition in rent control jurisprudence. Unless it can be said that it is with an oblique motive that landlord has chosen the tenant who is sought to be evicted in preference to other tenants, it is not for the authorities under the statute to intervene.
27. In the decision reported in Sheela v. KAMCO Employees Union (2010 (2) KLT 435), it has been held that it is not for the tenant to dictate to landlord how to satisfy his need. That was a case where the landlord wanted to evict the tenant from the building on the ground of additional accommodation and in such circumstances, this court has come to the conclusion that if the landlord requires additional accommodation for the purpose of their need, then tenant cannot dictate that he will have to be satisfied with the convenience that he is enjoying in the present premises and the vigor of proving requirements under Section 11(3) is considerably reduced in the case of protection under Section 11(8) of the Act.
28. In the decision reported in George T.I. v. K.L.Stanley (2013 (4) KHC 543), it has been held that, the mere fact that landlord had an opportunity to get vacant possession of another room and did not start business does not mean that the bonafide need cannot be said to be genuine. Several factors would go into the mind of landlord and once a choice is made by the landlord to a particular room or rooms for his own occupation, even if during the pendency of the petition, he comes into possession of another room that may be immaterial. That was a case where two rooms had come to the possession of the landlord, but he did not occupy the same instead rented out the same to others and after long period of time he filed an application for eviction on the ground of bonafide need and in such circumstances, this court has held that he had an opportunity earlier to occupy the building, which he had not done is not a ground to deny eviction and the circumstances under which he could not occupy the same has to be considered on the basis of evidence.
29. In the decision reported in Basheer M v. Ramani Gopalan and Another (2014 (1) KHC 4361, it has been held that tenant contending that landlord has other buildings, but face with recovery proceedings from bank was held to be a special reason enabling the landlord to overcome the bar under the first proviso to Section 11(3) of the Act and held that despite having other buildings eviction of the tenanted premises can be ordered.
30. In the decision reported in Abdul Nazar v. Mammad Koya (2011 (2) KLT 914), it has been held that the burden to establish that the landlord is the owner in an exclusive position of another building is on the tenant. After analyzing the evidence of thread bare, the courts below came to the conclusion that the need protected by the landlord is bonafide and he has no other building of his own in his possession to start the business intended by him, then there is nothing to interfere with the order of eviction passed by the courts below, invoking the power under Section 20 of the Rent Control Act.
31. In the decision reported in Kunju v. Fathima (2014 (3) KLT 563), it has been held that it cannot be understood from the first proviso to Section 11(3) that the landlord has to plead the particulars of all the premises under their ownership and possession to claim an order of eviction. In the same decision it has been held that, the scope of the first proviso to Section 11(3) of the Act, in the circumstances is to be understood in the context of the provision of Section 11(3) of the Act. Section 11(3) of the Act confers authority on the rent control court to pass an order directing the tenant to put the landlord in possession of the building, if he bonafide needs the building for his occupation and the proviso carves out an exception to the authority of the rent control court to order eviction when the landlord has another building of his own in his possession and there are no special reasons for not occupying the same for the proposed need. A combined reading of the provision and the proviso would indicate beyond doubt that it is only when it is established that the landlord has another building of his own in his possession for his occupation for the proposed need, he need satisfy the Rent Control Court of the special reasons for not occupying the said premises. In other words to non-suit the landlord, the vacant building should be of such a character, which would meet the requirements of the landlord. Any other interpretation of the proviso would lead to absurdity and cannot be accepted.
32. In the decision reported in Chacko P.Mathew v. Kuttappan (2002 KHC 583), it has been held that primary burden to show that, the landlord has a building of his own in possession is on the tenant unless it is an admitted fact. Once it is shown, the burden shifts to the landlord to establish the special reasons. Landlord need explain the circumstances and special reasons before the rent control court, only if it is established by the tenant that the landlord has got other buildings of his own. So it is clear from the above decisions that there is no need for the landlord initially to prove that he has got buildings of his own and it is not suitable for his purpose. But if it is an admitted fact or it is established by the tenant that the landlord is in possession of other buildings suitable for his purpose, then the burden shifts to the landlord to prove by special reasons the circumstances in which he chose the present building for his purpose and the reason for not occupying, the buildings which were in his possession for that purpose. With these principles in mind, the case on hand has to be considered.
33. It is not a case where the landlord was not in possession of any building of his own. It is admitted by him in the petition itself that he has come into possession of two rooms, namely, 16/990L and 16/990M in the same building that even earlier the tenants had agreed to vacate the premises and one such room was offered to the respondent for shifting his present business being conducted in the petition schedule building, but he was not amenable for the same. Except stating that the building which has come into his possession is not suitable for his business, he has not mentioned as to why the same is not suitable for his purpose. He had only mentioned that the vacant rooms are situated behind the petition scheduled building and petition scheduled building facing P.T.Jacob road, is the most ideal and suitable room for the petitioner to start his business namely, computer service.
34. The question is whether that is a special reason contemplated in the first proviso to Section 11(3) of the Act has to be considered on the basis of evidence. This fact was denied by the tenant and he had stated that, the vacant rooms are suitable for the intended purpose and that several tenants had vacated the premises earlier and they were let out to others on higher rent. The attempt of the petitioner is to evict the tenant from the premises and let it to others for higher rent, it is contended. Except the fact that the petition scheduled building is facing P.T. Jacob road, from the commissioners report there is nothing to show that the building now in the possession of the landlord is not suitable for his purpose. What is required to be proved by the landlord is that the building in his possession is not suitable for the business which is intended to be conducted by him. It was brought out in the evidence of PW1 that even prior to the filing of the petition and after filing of the petition, certain rooms have come into his possession and they were let out to others for higher rent. It is also seen from the evidence that one of the rooms which is situate on the opposite side of the building now in the possession of the tenant, another person by name Manoj had conducted computer service, that later he vacated it and now a cyber cafe is being conducted in that room. He had denied the suggestion that, that room was closed and that can be occupied by the landlord. But he had stated that now one Ajithkumar is conducting a dry cleaning business and he is getting regular rent from that room. It is admitted by him that the building in the possession of Life Insurance Corporation was later vacated by them and it was let out to others. According to him, his daughter is an engineering student and his brother-in-law is a software engineer in America and he can conduct business with the help of brother-in-law from the petition scheduled building. It is also stated by him that the present need has arisen from the date on which his daughter had joined computer science course. It was also brought out in evidence that he had evicted one tenant by name Latheef from one of the rooms by filing R.C.P.No.4 of 2009 as per Ext.B1 order and it was thereafter that the building was let out to Reliance and both the petition scheduled building and that room are identical and he had also stated that enikku nalla client vannal njan vadakakku kodukkum . A reading of his evidence will go to show that, he has no idea about the business that is going to be conducted. He had no case in the petition that he intended to start the business with the help of his brother-in-law and his daughter who is doing her computer science course.
35. In this court also a commission was taken out and commissioner has filed his report which can be marked as Ext.C4 and the plan can be marked as Ext.C4(a) and the photographs taken by the commissioner can be marked as Ext.C3 series. In the present commissioners report it has been mentioned that the petition scheduled building is having an area of 100 square feet whereas the other two rooms namely 16/990L and 16/990M are having an area of 200 square feet each. The landlord has no case in the petition that, since they are bigger rooms, they are not required for his purpose and so much extent is not required for him. He wanted only the tenant to shift his business to the room and since the tenant did not heed to the request, he has filed the application for eviction.
36. Except stating that the rooms in his possession are not suitable for his purpose and stating that the petition scheduled building is facing the main road, there is nothing mentioned in his evidence as to how the rooms in his possession are not suitable for his need and why he had not occupied those rooms for his purpose. The courts below have properly appreciated the evidence and come to the conclusion that the petitioner is not sure about the nature of the business to be conducted and from the evidence adduced by him regarding the nature of business intended to be conducted, it cannot be said that the rooms in his possession are not suitable for that purpose. The nature of evidence stated by him at the time of evidence was not pleaded in the petition as well. Further his evidence will go to show that he is in the habit of filing applications for eviction and after getting possession of the room, he is letting out the same to others for higher rent. So under such circumstances, both the courts below have come to the conclusion that the need alleged by the petitioner is not genuine. It is only a mere desire or irrational desire of some business intended to be started by him without any idea about the same as a ruse to evict the tenant from the building and the reasons stated by him cannot be said to be a special reason for not occupying the room so as to order eviction under Section 11(3) of the Act, in view of the bar under first proviso to Section 11(3) of the Act and rightly dismissed the application and that was confirmed by the appellate authority as well. The reasons stated by the courts below for coming to such a conclusion cannot be said to be unreasonable or perverse reasons given by the court below without understanding the evidence properly in a perverse manner or relying on certain material which is not on evidence so as to upset the concurrent findings of the court below on fact on the question of need alleged by the petitioner and also the reasons stated for not occupying the building in his possession so as to warrant interference by this court invoking the power under Section 20 of the Act.
37. On going through the evidence and also the reasons given by the rent control court as well as the appellate authority, it cannot be said that the conclusions arrived at by the courts below on the question of bonafide need are perverse and that they are liable to be interfered. So the revision lacks merits and the same is liable to be dismissed.
In the result, the revision petition is dismissed. Considering the circumstances of the case the parties are directed to bear their respective costs in this court.