Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 13TH DAY OF JULY 2022 / 22ND ASHADHA, 1944 RCREV.NO.27 OF 2021 AGAINST THE ORDER OF THE RENT CONTROL APPELLATE AUTHORITY / ADDITIONAL DISTRICT COURT - V, KOZHIKODE IN R.C.A.NO.188 OF 2016 DATED 24.11.2020, EMANATING FROM THE ORDER OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF COURT-II KOZHIKODE IN R.C.P.NO.35 OF 2015 DATED 15.06.2016)
REVISION PETITIONER: P.PUSHPALATHA AGED 56 YEARS W/O.ASHOKAN, 'CAMEO', NGO QUARTERS JUNCTION, RESIDING AT MANDADAI HOUSE, CHEVAYOOR AMSOM DESOM, P.O.CHEVARAMBALAM, KOZHIKODE-673 012. BY ADVS. R.SUDHISH SMT.M.MANJU RESPONDENTS:
1 V.PREMANATHAN AGED 70 YEARS S/O.LATE ACHUTHAN, VELUTHARAMBATH HOUSE, CHEVAYOOR AMSOM DESOM, P.O.MERIKKUNU, KOZHIKODE TALUK, PIN-673 012. 2 V.VISWANATHAN, AGED 68 YEARS S/O.LATE ACHUTHAN, VELUTHARAMBATH HOUSE, CHEVAYOOR AMSOM DESOM, P.O.MERIKKUNU, KOZHIKODE TALUK, PIN-673 012. 3 DR.V.BABURAJAN, AGED 59 YEARS S/O.LATE ACHUTHAN, VELUTHARAMBATH HOUSE, CHEVAYOOR AMSOM DESOM P.O.MERIKKUNNU, KOZHIKODE TALUK, PIN-673 012.
4 V.BHUVANDAS, AGED 57 YEARS S/O.LATE ACHUTHAN, VELUTHARAMBATH HOUSE, CHEVAYOOR AMSOM DESOM, P.O.MERIKKUNU, KOZHIKODE TALUK, PIN-673 012. 5 V.VINOD KUMAR, AGED 50 YEARS S/O.LATE ACHUTHAN, VELUTHARAMBATH HOUSE, CHEVAYOOR AMSOM DESOM, P.O.MERIKKUNU, KOZHIKODE TALUK, PIN-673 012. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 29.06.2022, THE COURT ON 13.07.2022 DELIVERED THE FOLLOWING:
ORDER
Ajithkumar, J The respondent in R.C.P.No.35 of 2015 on the file of
the Rent Control Court (Additional Munsiff court-II), Kozhikode is the revision petitioner. The respondents- landlords filed the Rent Control Petition seeking eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. It was allowed. The petitioner preferred an appeal before the Rent Control Appellate Authority
(Additional District Judge-V), Kozhikode, but it was dismissed. Questioning the legality, regularity and propriety of the said judgment and order, this revision has been filed under Section 20 of the Act.
2. On 01.02.2022, this revision was admitted and
notice was ordered to be served on the respondents. On 10.03.2021, an order of interim stay was granted for a period of four months. Interim stay was extended from time to time and is still in force.
3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents.
4. Eviction of the petitioner from the petition
schedule shop room was sought on the ground that respondents Nos.2 and 5 wanted to open a supermarket making use of the said room and the adjoining rooms. Reason for that proposal is that rooms, where they have been conducting the business now, are being acquired for the widening of Kozhikode - Wayanad road constraining them to shift their business.
5. The petitioner resisted the petition by filing a
counter statement. Essential contentions were that the respondents do not require the petition schedule shop room to start the proposed supermarket since they are already in possession of four rooms in a row and that the petitioner who is conducting a manufacturing unit of beds and pillows is entitled to get the protection of section 11(3) of the Act.
6. The learned counsel appearing for the petitioner vehemently contended that in Ext.A1 notice, the respondents pleaded that the petition schedule shop room and its adjoining room are required to start the
supermarket, whereas in the subsequent stages of the proceedings they have improved their plea by stating that all the five rooms including the petition schedule one are required for accommodating the supermarket. Such an embellishment was consciously made to mislead the court and that tells about the bona fides of the respondents. Accordingly, the learned counsel canvassed for a position that the need urged by the respondents cannot be said to be
bona fide. The learned counsel explained that the respondents’ requirement is only two rooms and already they are in possession of four rooms. As such, there is no need for evicting the petitioner. Moreover, the first proviso to Section 11(3) disentitles them from claiming eviction. Another aspect pointed out is that the respondents got another room on the first floor of the building which became vacant during the pendency of the proceeding and for that reason also, they are disentitled to get an order of eviction.
7. It is seen from Ext.A1 that at its opening part it is stated that the respondents require the petition schedule shop room and adjoining room for housing the supermarket.
In Ext.A1, it is stated below that the petition schedule shop room and the adjoining rooms are required to accommodate supermarket. A correction in the proof affidavit filed by PW1 that room was corrected as rooms also is highlighted by the learned counsel to contend that the respondents improved their case mischievously.
8. A document has to be read as a whole to
understand what it means. Evidence of a witness has to be read and interpreted to understand the purport of his evidence. A word or a stray sentence cannot be given more emphasis. If we read Ext.A1 and the deposition of PW1 in
court; Chief examination and cross-examination, and interpret in its entirety, the case put forward by the respondents is clear. It is that they require all the four rooms now available vacant with them and its adjoining room, which is the petition schedule room for respondents No. 2 and 5 to start a supermarket. It is undisputed that the building where respondents No. 2 and 5 are now conducting business has been taken over on acquisition and therefore they need to have alternative premises for their business.
When it is quite clear from the evidence available on record that their proposal is to start the supermarket by making use of all the five rooms including the petition schedule shop room, their bona fides in the matter cannot be doubted.
9. 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 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.
10. 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.
11. 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 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.
12. Viewed in the light of the principle adverted to
above, the findings rendered by the courts below that the respondents successfully proved the need they projected to be genuine and honest cannot be said to be either incorrect or perverse. Both the authorities considered the evidence in great detail. The possibility of housing such a supermarket on the first floor of the building was critically analyised. The advantage of starting the supermarket on the ground floor which, before the widening of the road, was in the nature of a cellar area was also probed into. The courts below
recorded sufficient reasons while concluding that the respondents quite honestly and sincerely had demanded the eviction of the petitioner from the petition schedule shop room.
13. In such circumstances, we are not expected in the
exercise of the powers of this court under section 20 of the Act to interfere with the said findings which are concurrent. Although the petitioner tried to press into service the first proviso to Section 11(3) of the Act, the same seldom attracts to the facts and circumstances of this case. An area that situates contiguous is required to run a supermarket. That is the definite stand of the respondents which is quite logical. Availability of one room on another floor of the building would not be a substitute. Therefore, respondents’ obtaining a vacant room on the first floor of the building is not a reason to disallow the plea for eviction.
14. The petitioner is conducting a unit of
manufacturing mattresses and pillows in the petition schedule shop room. It is her definite case that sale of the products is being held in another place. Her husband has a business in another room in the same building. The respondents did not attempt to evict him. When the petitioner has another place of business and her husband is
running another business in a room in the same building, she cannot successfully contend that she is depending for her livelihood solely on the income derived from the petition schedule shop room.
15. Regarding the non-availability of alternative
rooms in the locality, the evidence is scanty. No worthwhile evidence has been let in by the petitioner in this respect. A Commissioner was deputed by the Appellate Authority. The Commissioner has filed Ext.C2 report and C2(a) sketch. The report and sketch are regarding the building in question. The Commissioner was not asked to ascertain whether there are any other rooms available in the locality. Thus the petitioner did not venture to bring on record evidence that was possible. In such circumstances, we hold that the petitioner failed to discharge her burden in order to avail the benefit of the second proviso to Section 11(3) of the Act.
16. In the light of what are stated above, we are of
the view that the order of eviction concurrently rendered by the courts below is not liable to be interfered with by invoking the powers of this court under section 20 of the Act. This revision, therefore, is liable only to be dismissed. We dismiss it.
17. The learned counsel for the petitioners has made a request to afford seven months' time for vacating the premises. The learned counsel for the respondents conceded to grant time up to 31.12.2022.
18. Having considered all the aspects, we deem it appropriate to grant time till 31.12.2022 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 she will surrender vacant possession of the petition schedule building to the petitioners-landlords on or before 31.12.2022 and that, she shall not induct third parties into possession of the petition schedule building and further she shall conduct any business in the petition schedule building 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 damages for use and occupation at the existing rate of 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 building will stand cancelled automatically and the petitioners-landlords will be at liberty to proceed with the execution of the order of eviction. Sd/- ANIL K.NARENDRAN JUDGE Sd/- P.G. AJITHKUMAR JUDGE
PV