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 FRIDAY, THE 11TH DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943 RCREV. NO. 30 OF 2022 AGAINST THE JUDGMENT DATED 22.10.2021 IN R.C.A.NO.122 OF 2019 PASSED BY THE RENT CONTROL APPELLATE AUTHORITY, IRINJALAKUDA, AGAINST THE ORDER DATED 16.02.2019 IN R.C.P.NO.10 OF 2017 PASSED BY THE RENT CONTROL COURT, IRINJALAKUDA REVISION PETITIONER: ABBAS AGED 50 YEARS S/O. NELLIKKODE KUNJHANKUTTY, ERUMATHADAM DESOM, VADAKKUMKARA, VILLAGE, P.O VELLANKALLUR, MUKUNDAPURAM TALUK , THRISSUR DISTRICT BY ADVS. K.S.RAJESH M.SHAJU PURUSHOTHAMAN RESPONDENT: BHABHA AGED 53 YEARS S/O. KAITHAVALAPPIL, GANGADHARAN, KOTTANELLUR VILLAGE AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT PIN 680 661 BY ADV S.KARTHIKA (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.Rev.No.30 of 2022 2
ORDER
Anil K. Narendran, J.
The petitioner has filed this Rent Control Revision, invoking the provisions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the order of eviction granted by the Rent Control Court (Munsiff), Irinjalakkuda in R.C.P.No.10 of 2017, under Section 11(2)(b) and 11(3) of the Act, which now stands confirmed by the Rent Control Appellate Authority (Additional District Judge), Irinjalakkuda, in the judgment dated 22.10.2021 in R.C.A.No.122 of 2019, which is one filed under Section 18(1)(b) of the said Act.
2. The landlord filed R.C.P.No.10 of 2017 before the Rent
Control Court, Irinjalakkuda, seeking eviction of the tenant from the petition schedule building, on the grounds of arrears of rent and also the bona fide need of the wife of the landlord, who is planning to star a boutique in the petition schedule building. On the ground of eviction under Section 11(2)(b), the landlord has stated that the tenant has taken the petition schedule building for conducting hotel business, on a daily rent of Rs.900/-, for a period of 11 months, in 2009-2010, and the rental agreement was renewed periodically. The last renewal was on 18.02.2015. The
R.C.Rev.No.30 of 2022 3
period of that agreement expired on 18.01.2016, and the tenant had agreed to give vacant possession. The tenant without giving vacant possession, filed O.S.No.3412 of 2016 before the Munsiff Court, Irinjalakkuda against forceful eviction from the tenanted premises. Since the tenant failed to pay the rent as agreed, the landlord issued Annexure A7 lawyer notice dated 23.07.2017, asking the tenant to clear the arrears of rent and also to give
vacant possession of the tenanted premises. According to the landlord, the total arrears of rent comes to Rs.5,21,000/-.
3. Before the Rent Control Court, the tenant filed counter,
opposing the order of eviction sought for under Section 11(2)(b) and 11(3) of the Act. On the side of the landlord, PW1 to PW3 were examined and Exts.A1 to A10 series were marked. On the side of the respondent, RW1 and RW2 were examined and Exts.B1 to B7 were marked. The Advocate Commissioner, who submitted Exts.C1 and C1(a) reports, was examined a CW1. Exts.X1 and X2 were marked as third party exhibits. After considering the pleadings and evidence on record, the Rent Control Court arrived at the conclusion that the tenant has kept the rent of the petition schedule building, at the rate of Rs.900/- per day, in arrears and he has not chosen to make the payment despite the receipt of
R.C.Rev.No.30 of 2022 4 Ext.A7 lawyer notice. Therefore, the Rent Control Court found that the landlord is entitled for an order of eviction under Section 11(2)
(b) of the Act. Insofar as the ground of eviction under Section 11(3) of the Act is concerned, the Rent Control Court arrived at a
conclusion that the need projected for seeking an order of eviction
under Section 11(3) of the Act is bona fide; that the provisions under the first proviso to Section 11(3) of the Act has no application on the facts of the case; and that the tenant is not entitled to protection under the second proviso to Section 11(3) of the Act. By the order dated 16.02.2019, the Rent Control Court allowed R.C.P.No.10 of 2017 by granting an order of eviction under Section 11(2)(b) and 11(3) of the Act and the tenant was directed to give vacant possession of the petition schedule building to the landlord within one month.
4. Challenging the order of eviction granted by the Rent Control Court, the tenant filed R.C.A.No.122 of 2019 before the Rent Control Appellate Authority (Additional District Judge),
Irinjalakkudea. That appeal ended in dismissal by the judgment
dated 22.10.2021, thereby confirming the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, however, the order of eviction granted under Section 11(2)(b) was R.C.Rev.No.30 of 2022 5 set aside, after confirming the finding of the Rent Control Court regarding the rate of rent, i.e., Rs.900/- per day. Challenging the
order dated 16.02.2019 of the Rent Control Court in R.C.P.No.10
of 2017 and the judgment dated 22.10.2021 of the Rent Control Appellate Authority in R.C.A.No.122 of 2019, to the extent of confirming the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, the tenant is before this Court in this Rent Control Revision.
5. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord.
6. The issue that arises for consideration in this Rent
Control Revision is as to whether any interference is warranted on the order of eviction granted by the authorities below, concurrently under Section 11(3) of the Act.
7. The learned counsel for the petitioner-tenant would
contend that the finding of the Rent Control Court and that of the Appellate Authority while granting eviction under Section 11(3) of the Act is without properly appreciating the pleadings and materials on record.
8. Per contra, the learned counsel for the respondentR.C.Rev.No.30 of 2022 6
landlord would argue that it was on a proper appreciation of the pleadings and evidence on record that the authorities below have granted order of eviction, concurrently, under Section 11(3) of the Act. In exercise of the revisional jurisdiction under Section 20 of the Act, which is limited in nature, no interference is warranted, since the findings of the authorities below are neither perverse nor patently illegal.
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
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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. R.C.Rev.No.30 of 2022 8 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.
12. In the instant case, 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 wife of the landlord to start a boutique in the petition schedule building. The landlord was examined as PW1 and his wife was examined as PW2. PW1 is conducting menswear business in two other rooms near the petition schedule building, through his relative, Nishanth. The evidence of PW2 is to the effect that she was working as a teacher prior to her marriage and three years after her marriage. She had to stop teaching when she got pregnant for the second time. Now, the children are grown up and therefore, she wants to start a
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business of her own of fashion designing and boutique. The tenant, who was examined as RW1, during cross examination, admitted that PW2 has no job. The Advocate Commissioner, who was examined as CW1, has deposed that the petition schedule building is suitable for the proposed boutique business. After considering the pleadings and evidence on record, the Rent Control Court as well as the Appellate Authority arrived at a conclusion that the need projected in the Rent Control Petition seeking an order of eviction under Section 11(3) of the Act is bona fide. The said finding of the authorities below are neither perverse nor patently illegal. It cannot also be said that, while arriving at such a finding, the authorities below have committed any material irregularity.
13. 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.
14. In M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC 355] the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section R.C.Rev.No.30 of 2022 10
14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141], wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. Whether the
landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question.
15. In Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21] the question that arose before a Division R.C.Rev.No.30 of 2022 11
Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its non-occupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises.
16. In Vasantha Mallan, relying on the law laid down by the Apex Court in M.L. Prabhakar [(2001) 2 SCC 355] the Division Bench held that, it is not incumbent on the landlord to R.C.Rev.No.30 of 2022 12
disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his
requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for non- occupation of the premises for his alleged needs.
17. Before the Rent Control Court and also the Appellate Authority, the tenant contended that the landlord is in possession of another building in which his wife can start boutique. It has R.C.Rev.No.30 of 2022 13 come out in evidence that PW1 owns a shop room in which he is doing textile business along with his close relative, which was
started 3½ years back. RW1 has no case that the said room is vacant. After considering the evidence on record, the Rent Control Court as well as the Appellate Authority found that the first proviso to Section 11(3) of the Act has no application on the facts of the case. The said finding of the Rent Control Court and the Appellate Authority is neither perverse nor patently illegal, warranting interference.
18. As per the second proviso to Section 11(3) of the Act,
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.
19. In Ammeer Hamsa v. Ramabhadran and another
[2019 (2) KHC 465] a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the R.C.Rev.No.30 of 2022 14 legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions.
Vide: Narayanan Nair v. Pachumma [1980 KLT 430], Prasannan v. Haris [2005 (2) KLT 365], Vineethan v. Fathima and others [2016 (1) KHC 631]. In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant,
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the question whether the landlord has pleaded or proved the facts
constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the
burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act.
20. Apart from the oral testimony of the tenant as RW1,
nothing was brought out to show that the tenant is mainly depending on the income derived from the hotel business conducted in the petition schedule building for his livelihood. No accounts or income tax statements were produced by the tenant in
order to prove his income derived from such business. RW1,
during cross examination, admitted that there are vacant rooms available in E.G. Complex. However, he contended that those vacant rooms are not suitable for hotel business. RW1 has also stated that the room in a building constructed near Thrissur bus stop and also the vacant rooms in 'Prince Tower' and R.C.Rev.No.30 of 2022 16 'Kizhakkepeedika Complex' are not suitable for hotel business. After considering the evidence on record, the Rent Control Court as well as the Appellate Authority found that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act.
21. 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 proceedings before the High Court or District Court under sub-section (1) shall be in its discretion.
22. 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 R.C.Rev.No.30 of 2022 17
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.
23. In T. Sivasubramaniam v. Kasinath Pujari [(1999)
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
R.C.Rev.No.30 of 2022 18
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.
24. 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 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
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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.
25. 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
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confined to find out legality, regularity and propriety of the order
impugned before it.
26. 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.
27. Viewed in the light of the law laid down in the decisions
referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court and the Rent Control Appellate Authority while ordering eviction of the tenants under Section 11(3) of the Act is neither perverse nor patently illegal, 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. R.C.Rev.No.30 of 2022 21
28. The learned counsel for the petitioner-tenant would
submit that considering the situation prevailing in the country on account of COVID-19 pandemic, the tenants may be given at least six months' time to give vacant possession of the petition schedule building.
29. On the above request made by the learned counsel for
the tenant, the learned counsel for the respondent-landlord would submit that a reasonable period for surrendering the vacant possession of the petition schedule building can be granted, 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.
30. The learned counsel for the 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 give vacant possession of the petition schedule building to the landlord.
31. 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
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order of the Rent Control Court; however by granting six months'
time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondent-landlord, considering the situation prevailing in the country on account of COVID-19 pandemic, 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 they will surrender vacant possession of the petition schedule building 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 building and further he 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 two 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;
(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 R.C.Rev.No.30 of 2022 23
granted by this order to surrender vacant possession of the petition schedule building 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 uu