Kunjamma vs Dr.M.Raveendran

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944 AGAINST THE JUDGMENT DATED 19.06.2015 IN R.C.P.NO.7 OF 2008 OF THE RENT CONTROL COURT (MUNSIFF), KAYAMKULAM ARISING OUT OF THE ORDER DATED 27.10.2017 IN R.C.A.NO.5 OF 2015 OF THE RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA REVISION PETITIONERS:

1 KUNJAMMA, W/O.LATE ZACHARIAH, KANKALIL HOUSE, KAYAMKULAM MURI, KAYAMKULAM VILLAGE, KAYAMKULAM P.O. 2 NADIYA, D/O.KUNJAMMA & LATE ZACHARIAH, KANKALIL HOUSE,KAYAMKULAM P.O., KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 3 NIDIYA, D/O.KUNJAMMA & LATE ZACHARIAH, KANKALIL HOUSE,KAYAMKULAM P.O., KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 4 NEETHU, D/O.KUNJAMMA & LATE ZACHARIAH, KANKALIL HOUSE,KAYAMKULAM P.O., KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 5 RIYA, D/O.KUNJAMMA & LATE ZACHARIAH, KANKALIL HOUSE,KAYAMKULAM P.O., KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 6 NIDHIN, S/O.ZACHARIAH & KUNJAMMA, KANKALIL HOUSE,KAYAMKULAM P.O., KAYAMKULAM MURI, KAYAMKULAM VILLAGE. BY ADVS. SRI.S.SREEKUMAR (SR.)

SRI.JOSEPH JOHN SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA RESPONDENT: DR.M.RAVEENDRAN AGED 84 YEARS, S/O.MADHAVA PANICKER, 9B TRANQUIL TOWER, KAKKANADU P.O., KOCHI-30, KERALA. BY ADV SRI.S.SUJIN (CAVEATOR) OTHER PRESENT: SRI N.N. SUGUNAPALAN (SR.) FOR RESPONDENT THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ORDER

Anil K. Narendran, J.

The petitioners are the legal heirs of Sakariya, who was

arrayed as the respondent-tenant in R.C.P.No.7 of 2008 filed by the respondent herein-landlord before the Rent Control Court (Munsiff), Kayamkulam, a petition under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking eviction of the tenant from the petition schedule shop rooms. The landlord filed RCP on 07.11.2008, at the age of 73 years. Going by the averments in the RCP, the petition schedule shop rooms bearing Nos.34 and 35 in Ward No.XIII of Kayamkulam Muncipality belong to the landlord by virtue of partition deed No.2032 of 1957 dated 30.12.1957. The petition schedule shop rooms are part of a large building consisting of 14 rooms. In terms of a partition deed, out of the 14 rooms, the landlord got 4 rooms. Out of the 4 rooms, 2 rooms have already been disposed of. Now, what remains is the petition schedule shop rooms. The tenant defaulted payment of the monthly rent of Rs.1,000/- for the last five years. The landlord is a doctor by

profession, who intends to start a consulting centre at Kayamkulam. Other than the petition schedule shop rooms, no other rooms are available with the landlord for the said purpose. The landlord is having sufficient financial background. He bona fide needs the petition schedule shop rooms for the above purpose.

2. In the RCP, the original tenant entered appearance and filed an objection. Paragraph 3 of the objection reads thus;

“3. ഹർജി 2-ാ ാ പ ര യിൽ വിവരി്കു്ᩐ ക രണ്ങൾ പൂർ്ᩆമ യു ശരിയ്ᩤ ്ᩈതിന ൽ നിഷേധി്കു്ᩐു. ഹർജി്ക രന് എതയഹർജി്ക രനു മ യി Landlord-Tenant Relationship ഇ്ᩤ. പ്ടിക കടമുറികൾ എതയഹർജി്ക രന് വില നൽകിയതിനുഷശേ ഹർജി്ക രനു ടിയ ന്ററ മുവ്യ റുക രനു എതയഹർജി്ക രറന ടി കടമുറികളുറട ഉടമ്ᩝന യി്ട ണ് അ ഗീകരി്ച് വരു്ᩐത്. പ്പതിമ സ 100/- രൂപ യ്്ക് വ ടകയ്ഷ്ക്ᩢിരു്ᩐ കടമുറികളുറട 07-01-1996 വറരയു്ᩦ വ ടക കുടിശിഖ കടകൾ വിലയ്്ക് വ ്ങു ഷപ ൾ എതയഹർജി്ക രൻ മുവ്യ റുക രറന ഏൽ്ᩔി്ച് രസീതു വ ്ങിയി്ടു്ᩦത ണ്. അതിനുഷശേ കടകളുറട ഉടമ്ᩝന യ എതയഹർജി്ക രനിൽ നി്ᩐു ഹർജി്ക രഷന മഷ്ᩢ വ ടക ഷ ദി്കഷപ ലു റ യ്ത ി്ടി്ᩤ. പ്പതിമ സ 1,000/- രൂപ വ ടകയ റണ്ᩐു 5 വർേറ്ᩈ വ ടക കുടി- ശിഖ ഉറെ്ᩐു മ്ᩢു ഹർജിയിൽ പ്പതിപ ദി്ചിരി- ്കു്ᩐതു അടി്ᩝ നരഹിതവു കളവുമ ണ്. വിഷദശ്ᩈ് ഷജ ലിയ യിരു്ᩐ ഹർജി്ക രൻ ധ ര ളo പണവുമ യി്ട ണ് ഇഷ്ᩔ ൾ ന ്ടിൽ മട്ങി വ്ᩐി്ടു്ᩦത്. ഹർജി്ᩔ്ടിക കടമുറി ടിയ ന് സവ്ᩌമ യി ്ഷിനിക് നട്ᩈു്ᩐതിന് ആവശയമ ണ് എ്ᩐു പറ്ഞിരി്കു്ᩐത് ദുരുഷേശപരമ ണ്. യ റത രു അവക ശവുമി്ᩤ ്ᩈ കടമുറികൾ സവ്ᩌമ വശയ്ᩈിന് ആവശയറ്ᩔ്ടുറക െ് ഇ്ങറനറയ രു ഹർജി ഷ ധി്ᩔി്കുവ ൻ നിയമപരമ യി തട്ᩰമു്ᩦത കു്ᩐു.” (underline supplied)

3. During the pendency of the Rent Control Petition, the

tenant died and his legal representatives were impleaded as additional respondents 2 to 7. On the side of the landlord PW1 was examined and Exts.A1 to A8 were marked. On the side of the tenants, Exts.B1 to B7 were marked. The wife of the original tenant was examined as CW1 and CW2 and CW3 were examined on their side. The report and mahazar prepared by the Advocate Commissioner were marked as Ext.C1. After considering the pleadings and evidence on record, the Rent Control Court, by the

order dated 19.06.2015, dismissed the RCP, holding that the

landlord is not entitled to an order of eviction under Sections 11(2)(b) or 11(3) of the Act.

4. Challenging the order of the Rent Control Court in R.C.P.No.7 of 2008, the landlord filed R.C.A.No.5 of 2015, under Section 18(1)(b) of the Act, before the Rent Control Appellate

Authority, Mavelikkara. The Appellate Authority by the judgment

dated 27.10.2017 allowed that RCA, thereby ordering eviction of the tenants from the petition schedule shop rooms under Sections 11(2)(b) and 11(3) of the Act. The Appellate Authority set aside

the dismissal of the RCP. The operative portion of that judgment

reads thus; “21. Point No.4:- In the result, this appeal is allowed. The

order of the Rent Control Court, Kayamkulam dismissing

R.C.P.No.7 of 2008 is set aside. R.C.P.No.7 of 2008 is allowed as follows: 1) Additional counter petitioners 2 to 7 are directed to surrender vacant possession of petition schedule shop rooms under Section 11(2)(b) of the Kerala Building (Lease and Rent Control) Act. 2) The order passed under clause.1 shall not be executed for a period of one month from today and the tenant may within the said period deposit the arrears of rent from November 2003 till November 2008 at the rate of Rs.100/- per month with interest at the rate of 6% per annum and cost of the proceeding in the court and in that event, the

order of eviction under Section 11(2)(b) of the Act shall be

vacated. 3) Additional counter petitioners 2 to 7 shall surrender vacant possession of the petition schedule shop rooms under Section 11(3) of the Act within 30 days from today.”

5. Challenging the judgment dated 27.10.2017 of the

Rent Control Appellate Authority in R.C.A.No.5 of 2015, the legal representatives of the tenants are before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act.

6. On 11.01.2018, when this Rent Control Revision came

up for admission, the respondent-landlord entered appearance through counsel. The submission made on behalf of the landlord that no execution steps will be pursued till the disposal of this Rent Control Revision was recorded.

7. Heard the learned counsel for the petitioners and also the learned Senior Counsel for the respondent.

8. The learned counsel for the petitioners would mainly

contend that the need projected in the Rent Control Petition for seeking an order of eviction under Section 11(3) of the Act is not bona fide, inasmuch as, even at the time of filing of the RCP, the landlord was aged 73 years. During trial, before the Rent Control Court, landlord filed I.A.No.546 of 2014, an application to record his evidence through an Advocate Commissioner. The averments in the affidavit filed in support of that interlocutory application and also the medical certificate marked as Ext.B2 would show the physical condition of the landlord as on 23.02.2014, which is a subsequent event which would completely eclipse the need projected in the RCP. The aforesaid aspect was not properly considered by the Rent Control Court or the Rent Control Appellate Authority. The learned counsel would also raise a

contention that the argument raised on behalf of the petitioners, placing reliance on Ext.B1 sale agreement dated 08.12.1993 in respect of the petition schedule shop rooms, was not properly appreciated by the court below. The learned counsel for the petitioners would place reliance on the decision of the Apex Court in Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476].

9. Per contra, the learned Senior Counsel for the

respondent-landlord would contend that the concurrent finding of the Rent Control Court and the Appellant Authority that the landlord is entitled to an order of eviction under Section 11(3) of the Act is neither perverse nor patently illegal and as such no interference is warranted, in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. The stand taken by the tenant in the objection filed in R.C.P.No.7 of 2008 is not at all sufficient to arrive at a conclusion that the need projected for seeking an order of eviction under Section 11(3) of the Act is a mere fanciful or whimsical desire. The averments in the affidavit filed in support of I.A.No.546 of 2014 to record the evidence of the landlord through an Advocate Commissioner or the contents

of Ext.B2 medical certificate showing the physical condition of the landlord as on 23.02.2014, is not a subsequent event, which would completely eclipse the need projected in the Rent Control Petition, which is one filed in the year 2008. The learned Senior Counsel would rely on the decision of the Apex Court in D.Sasi Kumar v. Soundararajan [(2019) 9 SCC 282].

10. Section 11 of the Kerala Buildings (Lease and Rent

Control) Act deals with eviction of tenants. As per Section 11(2)(a) of the Act, a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. As per the first

proviso to Section 11(2)(b), an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per Section 11(2)(c), the order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order.

11. In order to seek an order of eviction under Section

11(2)(b) of the Act the landlord contended that the tenant has defaulted payment of monthly rent of the petition schedule shop rooms, at the rate of Rs.1,000/-. On the other hand, the tenant contended that the monthly rent of the said shop rooms is only Rs.100/-. Relying on Ext.B1 agreement dated 08.12.1993, the tenant contended that he had paid a sum of Rs.1,10,000/- towards advance sale consideration of the petition schedule shop rooms and thereafter, by Ext.B2, the balance sale consideration together with interest for delayed payment was also paid.

12. Though the Rent Control Court dismissed the claim for

eviction under Section 11(2)(b) of the Act, the Appellate Authority in the judgment dated 27.10.2017 in R.C.A.No.5 of 2015 granted an order of eviction on the ground of arrears of rent. As noticed by the Appellate Authority, in the judgment dated 27.10.2017, even going by the admission made by the tenant in the counter filed in the RCP, the monthly rent of the petition schedule shop rooms at the rate of Rs.100/- was paid only up to 07.01.1996. Insofar as Ext.B1 sale agreement and Ext.B2 receipt are concerned, the brother of the landlord, who was examined as CPW3 had admitted that he was not a power of attorney holder of the landlord, at the time of execution of Ext.B1 agreement for sale. The landlord who was examined as PW1 has deposed that the alleged sale agreement, i.e., Ext.B1 is one executed without his consent or knowledge. After analysing the evidence on record, the Appellate Authority rightly granted an order of eviction under

Section 11(2)(b) of the Act. The reasoning of the Appellate Authority while reversing the findings of the Rent Control Court on the ground of eviction under Section 11(2)(b) of the Act is neither perverse nor patently illegal and it cannot also be said that the Appellate Authority has committed any material irregularity while granting such an order.

13. 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.

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 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 Nalakath Saidali Haji v. Kalluparamba

Musthafa and others [2015 (4) KHC 815], a decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the law laid down in the decisions of the Apex Court referred to supra. The Division Bench also noticed the law laid down by the Apex Court in Kizhakkayil Suhara v. Manhantavida Aboobacker (dead) by Lrs. [(2001) 8 SCC 19] that, not merely the need of the landlord but also the need of the dependants for whom eviction is sought, should be established to be bona fide. On the facts of the case on hand, the Division Bench noticed that, neither the Rent Control Court nor the Appellate Authority has considered the need put forward by the landlord in accordance with the principles laid down in the decisions referred to supra and in the manner in which, the same ought to have been considered. Both the authorities were influenced by the fact that the landlord was holding an employment visa. The Division Bench noticed that, there is absolutely no evidence available on record regarding the nature of the employment visa that the landlord was holding or the terms

subject to which the said visa has been issued to him. The conclusions of both the authorities below are based on the admission made by the landlord, while he was cross-examined as PW1. Nothing precludes the landlord from going abroad for employment. The case of the landlord in the Rent Control Petition is that, he has left his employment abroad and has come back to his native place. The fact that he is still holding an employment visa, does not militate against the bona fide need pleaded by the landlord.

16. 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.

17. In Regy V. Edthil v. Hubert Leslie D'Cruz [2016

(2) KLJ 164], another decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court relied on the decision of the Apex Court in Deena Nath v. Pooran Lal

[(2001) 5 SCC 705], wherein the Apex Court held that, in order

to order eviction on the ground of bona fide 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. In the said decision, the Division Bench relied on the decision of the Apex Court in Shiv Sarup Gupta [(1999) 6 SCC 222], wherein it was held that, the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The phrase 'required bona fide' is suggestive of Legislative intent is an outcome of a sincere and honest desire, in contra distinction with a mere desire, by the Rent Control Legislation. In Abdul Salam v. Sebastian [2013 (4) KLT 592], a Division Bench of this Court held 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 it, as the need mentioned under Section 11(3) of the Act cannot be a mere desire. On the facts of that case, since there was no sufficient opportunity given in the absence of plea, the Rent Control Petition was remitted to the Rent Control Court to enable the landlord to adduce evidence on that aspect and for fresh consideration by the

Rent Control Court. Therefore, 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 bona fide and he is not entitled to get an

order of eviction under Section 11(3) of the Act.

18. In Gireeshbabu T.P. v. Jameela and others [2021

(5) KHC SN 30], a decision relied on by the learned counsel for the petitioner-tenant, a Division Bench of this Court in which one

among us (Anil K. Narendran, J) was a party, held that, in order

to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act but, of course, subject to the first and second provisos to Section

11(3).

19. On the ground of eviction sought for under Section

11(3) of the Act, the landlord is a doctor by profession, who is admittedly having financial capacity to start the proposed medical consultancy in the petition schedule shop rooms. The fact that the landlord is permanently settled at Ernakulam cannot be a ground to contend that there is no bona fides in the need projected in the RCP for seeking an order of eviction under Section 11(3) of the Act. The Appellate Authority rightly found that the landlord has succeeded in proving the bona fide need for starting medical consultancy in the petition schedule shop rooms.

20. The tenant has no specific case that the first proviso

to Section 11(3) of the Act is attracted in the facts and circumstances of the case on hand. Insofar as the second proviso to Section 11(3) of the Act is concerned, in the additional objection filed by the legal representatives of the deceased tenant it was contended that they are depending for their livelihood the income derived from the business conducted in the petition schedule shop rooms. They have also raised a contention that no other suitable building is available in the locality to carry on their

business. The Appellate Authority found that no materials were placed to show that the second proviso to Section 11(3) of the Act has application to the facts and circumstances of the case. Therefore, the finding of the Appellate Authority that the tenant is not entitled to the protection under the first proviso and also the second proviso to Section 11(3) of the Act is neither perverse nor patently illegal and it cannot also be said that while arriving at such a conclusion the Appellate Authority has committed any material irregularity.

21. Now, we shall deal with the contention raised by the

learned counsel for the petitioner that the averments in the affidavit filed in support of I.A.No.546 of 2014 in R.C.P.No.7 of 2008 and Ext.B2 medical certificate as to the physical condition of the landlord as on 23.02.2014 is a subsequent event, which would completely eclipse the need projected in the RCP for seeking an order of eviction under Section 11(3) of the Act.

22. In Sheshambal (dead) through LRs. v. Chelur

Corporation, Chelur Building [(2010) 3 SCC 470] the Apex Court was dealing with a case in which the landlords, late Shri K. Sachindanda Iyer and his wife late Smt. A. Sheshambal

Sachindanda Iyer, let out the premises in dispute to the 1st respondent for a period of three years in terms of a lease deed dated 12.04.1983. On the expiry of the lease period the landlords filed R.C.P.No.116 of 1986 before the Rent Control Court, Ernakulam seeking eviction of the tenant on the ground that they required the same for their bona fide personal occupation within the meaning of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The prayer for eviction was opposed by the tenant, inter alia, on the ground that the landlords did not require the demised premises and that, the tenant would find it difficult to shift its business to any other premises on account of non- availability of a suitable accommodation. The Rent Control Court eventually came to the conclusion that the landlords had failed to establish their bona fide requirement of the premises. The Rent Control Court found that the landlords had shifted their residence from Cochin and were living with their daughter and son-in-law, who were running a nursing home in that city. Aggrieved by the

order passed by the Rent Control Court, the landlords appealed

to the Rent Control Appellate Authority, who affirmed the decision taken by the Rent Control Court, holding that the landlords were

residing with their daughter and son-in-law at Ernakulam in a building owned by the landlords. The Appellate Authority also found that the landlords had a cottage at Kodaikanal and that, they being fairly old had no reason to shift back to Ernakulam in search of better medical facilities, especially when their son-in- law was running a nursing home at Coimbatore, where such facilities were available to them. Aggrieved by the order passed by the Rent Control Court and the judgment of the Appellate Authority, the landlords approached the High Court in a revision filed under Section 20 of the Act. During the pendency of the revision Shri K. Sachindanda Iyer passed away on 24.04.1996. The High Court refused to intervene with the concurrent findings recorded by the courts below and accordingly, dismissed the

revision petition. Feeling aggrieved, Smt. A. Sheshambal Sachindanda Iyer approached the Apex Court. During the pendency of the Civil Appeal, Smt. Sheshambal passed away. In I.A.No.7 of 2008 filed on 14.11.2008 permission was sought for substitution of her legal heirs on the basis of a will left behind by the deceased, as per which the property in question has to devolve upon her three daughters, out of which two of the

daughters are living in India, one each at Coimbatore and Bihar, and the third daughter is settled in America.

23. In Sheshambal the Apex Court noticed that, in the

eviction petition the landlords had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the landlords leave alone any member of their family who was dependent upon them. That being so the parties went to trial before the Rent Control Court on the basis of the case pleaded in the petition and limited to the requirement of the landlords for their personal occupation. Neither before the Rent Control Court nor before the Appellate Authority it was argued that the requirement in question was not only the requirement of the landlords but also that of any other member of their family, whether dependent upon them or otherwise. Not only that, even in the petition filed before the Apex Court the requirement pleaded was that of the deceased widowed landlord and not that of any member of her family.

24. In Sheshambal the Apex Court further noticed that,

the legal representatives who now claim to be the family members of the deceased landlords are all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependent upon the deceased landlord was also a fact undisputed before the Apex Court. Even otherwise, in the social milieu to which we are accustomed, daughters happily married have their own families and commitments, financial and otherwise. Such being the position the Apex Court found it difficult to see how the legal representatives of the deceased landlord can be allowed to set up a case which was never set up before the courts below so as to bring forth a requirement that was never pleaded at any stage of the proceedings. Allowing the legal heirs to do so would amount to permitting them to introduce a case which is totally different from the one set up before the Rent Control Court, the Appellate Authority or even the High Court. The position may indeed have been differentiated if in the original petition the landlords had pleaded their own requirement and the requirement of any member of their family dependent upon them. In such a case the demise of the landlords or any one

of them may have made little difference for the person for whose benefit and bona fide requirement the eviction was sought, who could pursue the case to prove and satisfy any such requirement.

25. In Sheshambal, before the Apex Court it was

contended on behalf of the appellants that the rights and obligations of the parties get crystallised at the time of institution of the suit so that any subsequent development is not only inconsequential but also wholly irrelevant for determination of the case before the Apex Court. In that context, the Apex Court observed that, while it is true that the right to relief must be judged by reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted.

26. In Sheshambal, the Apex Court noticed that, the

above proposition of law is fairly settled by the decision in Pasupuleti Venkateswarlu v. Motor and General Traders [(1975) 1 SCC 770]. To the same effect is the decision in Om Prakash Gupta v. Ranbir B. Goyal [(2002) 2 SCC 256] where it was declared that although the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit, yet the court has power to mould the relief in case the following three conditions are satisfied (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Hasmat Rai v. Reghunath Prasad [(1981) 3 SCC 103] it was observed that, if the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events, and the

court including the appellate court has to examine, evaluate and adjudicate upon the same. To the same effect is the decision in Baba Kashinath Bhinge v. Samast Lingayat Gavali [(1994) Supp. 3 SCC 698] where relying upon the decision in Hasmat Rai it was held that in a case of bona fide requirement it is necessary to establish that the landlord needs the premises and the need subsists till a decree is passed in his favour. In a case where such need is available at the time of the filing of the petition but becomes extinct by the time the matter attains finality in appeal for revision no decree will be justified. For that purpose, the court should take all the subsequent events into consideration and mould the relief accordingly.

27. In Sheshambal, at Para.22 of the decision (SCC page

477), the Apex Court quoted with approval the following passage from the decision in Baba Kashinath Bhinge (SCC pages 699- 700, para 2) as complete answer to the question raised before it, which reads thus; “2. Equally it is settled by this Court in series of judgments and a reference in this behalf would be sufficient by citing Hasmat Rai v. Raghunath Prasad [(1981) 3 SCC 103]

that in a case of bona fide requirement, it is always necessary, till the decree of eviction is passed that the landlord should satisfy that the need is bona fide and the need subsists. In a case where the need is available at the time of filing of the petition, but at the time of granting decree it may not continue to subsist, in that event, the decree for eviction could not be made. Similarly pending appeal or revision or writ petition, the need may become more acute. The court should take into account all the subsequent events to mould the relief. The High Court may not be justified in omitting to consider this aspect of the matter but that does not render the judgment illegal for the subsequent discussion we are going to make.” (emphasis in original)

28. In Sheshambal, the Apex Court noticed that, a similar view was expressed in Ramesh Kumar v. Kesho Ram [(1992) Supp. 2 SCC 623] (SCC pages 626-27, para 6), wherein it was

held that, the normal rule is that in any litigation the rights and

obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ‘cautious cognizance’ of the subsequent

changes of fact and law to mould the relief. Similarly, in Maganlal Kishanlal Godha v. Nanasaheb Uddhaorao Gadewar [(2008) 13 SCC 758] it was held that, if the litigation keeps extending and number of developments sprouting up during the long interregnum, the court should adopt a pragmatic approach in the matter and determine whether or not the development pending finalisation of the litigation is such as would completely non-suit the party concerned. In Sheshambal, the Apex Court observed that the decision in Maganlal Kishanlal Godha is no authority for the proposition that subsequent developments having material impact on the rights and obligations of the parties can be ignored by a court simply because such rights and obligations have to be determined by reference to the date on which the litigation was instituted.

29. In Sheshambal, the Apex Court further noticed that,

the decision in Kedar Nath Agrawal v. Dhanraji Devi [(2004) 8 SCC 76] has reiterated the legal position after a detailed review of the case law on the subject. That was also a case where the two landlords seeking eviction of the tenant had passed away during the pendency of the eviction petition and the question was

whether the three married daughters left behind by the couple could continue with the same. In the said decision (SCC page 86, para 31) it was observed that, in view of the settled legal position as also the decisions in Pasupuleti Venkateswarlu [(1975) 1 SCC 770] and Hasmat Rai [(1981) 3 SCC 103] the High Court was in error in not considering the subsequent event of death of both the landlords. It was the power as well as the duty of the High Court to consider the fact of death of the landlords during the pendency of the writ petition. Since it was the case of the tenant that all the three daughters got married and were staying with their in-laws, obviously, the said fact was relevant and material.

30. In Sheshambal (SCC page 478, paras 26 and 27), the

Apex Court noticed that, the decisions in Pratap Rai Tanwani v. Uttam Chand [(2004) 8 SCC 490], Gaya Prasad v. Pradeep Srivastava [(2001) 2 SCC 604], Kamleshwar Prasad v. Pradumanju Agarwal [(1997) 4 SCC 413], Shakuntala Bai v. Narayan Das [(2004) 5 SCC 772], G.C. Kapoor v. Nand Kumar Bhasin [(2002) 1 SCC 610], Shantilal Thakordas v. Chimanlal Maganlal Telwala [(1976) 4 SCC 417] and

Pukhraj Jain v. Padma Kashyap [(1990) 2 SCC 431] do not

lend any support to the proposition that subsequent developments cannot be noticed by the court, especially when such developments have an impact on the right of a party to the relief prayed for. In Shantilal Thakordas v. Chimanlal Maganlal Telwala [(1976) 4 SCC 417] the earlier decision rendered in Phool Rani v. Naubat Rai Ahluwalia [(1973) 1 SCC 688] was overruled and it was held that the law permitted the eviction of the tenant for the requirement of the landlord for occupation of the landlord as residence for himself and members of his family and that, such a requirement was both of the landlord and the members of his family so that upon the death of the landlord the right to sue survived to the members of his family. That is not the position in the case on hand.

31. In Sheshambal, on the facts of the case on hand, the

Apex Court noticed that, the requirement pleaded in the eviction petition by the landlords was their own personal requirement and not the requirement of the members of their family whether dependent or otherwise. Indeed if the deceased landlords had any dependent member of the family, the Court may have, even in

the absence of a pleading assumed that the requirement pleaded extended also to the dependent memhber of their family. That unfortunately, for the appellants is neither the case set up nor the position on facts. The deceased couple did not have any dependent member of the family for whose benefit they could have sought eviction on the ground that she required the premises for personal occupation. In the light of what have been stated above, the Apex Court held that on the death of the landlords in the original eviction petition their right to seek eviction on the ground of personal requirement for the demised premises became extinct and no order could on the basis of any such requirement be passed at this point of time.

32. In view of the law laid down by the Apex Court in

Sheshambal it would be open to a tenant to point out a subsequent event of such a magnitude as to completely eclipse the bona fide need projected in the Rent Control Petition filed seeking eviction under Section 11(3) of the Act, in which event, the Rent Control Court, including the Appellate Court, has to examine, evaluate and adjudicate upon the same, in order to find out whether such bona fide need no more exists because of the

subsequent event.

33. In Sheshambal the bona fide need projected under

Section 11(3) of the Act was for the personal occupation of the landlords, namely, Sachidananda Iyer and his wife Sheshambal. The Rent Control Court found that the landlords had failed to establish their bona fide requirement of the premises. Aggrieved by that order, the landlords filed appeal before the Rent Control Appellate Authority, which ended in dismissal. The landlord filed Rent Control Revision before this Court. During the pendency of that revision, Sachidananda Iyer passed away. This Court refused to intervene with the concurrent findings recorded by the courts below and accordingly, dismissed the Rent Control Revision. Feeling aggrieved, Sheshambal approached the Apex Court. During the pendency of Civil Appeal, Sheshambal passed away. Her legal heirs were substituted in the party array, on the basis of a Will left behind by her. As per the said Will, the property in question has to devolve upon her three daughters, out of which two daughters are living in India, one each at Coimbatore and Bihar and the 3rd daughter settled in America.

34. In Sheshambal the Apex Court found that the

eviction petition was totally silent about the requirements of any member of the family of the landlords leave alone any member of their family, who was dependent on them. Therefore, the legal heirs cannot be allowed to set up a case, which was never set up before the courts below. In Sheshambal the Apex Court has made it clear that the position may indeed have been differentiated, if in the original petition the landlords had pleaded their own requirement and the requirement of any member of their family dependent upon them. In such a case, the demise of the landlords or any one of them may have made little difference for the person whose benefits and bona fide requirement, the eviction was sought, who could pursue the case to prove and satisfy any such requirement.

35. The factual matrix and the law laid down by the Apex

Court in Sheshambal, which we have dealt with in extenso hereinbefore, gives a complete answer to the question as to whether the averments in the affidavit filed in support of I.A.No.546 of 2014 in R.C.P.No.7 of 2008 or the physical condition of the landlord as on 23.02.2014 as stated in Ext.B2 medical certificate is of such a magnitude as to completely eclipse the

bona fide need projected in R.C.P.No.7 of 2008.

36. In D.Sasi Kumar v. Soundararajan [(2019) 9 SCC

282], a decision relied on by the learned Senior Counsel for the respondent-landlord, the Apex Court noticed that the High Court has erroneously arrived at the conclusion that the bona fide occupation as sought should be not only on the date of the petition but it should continue to be there on the date of final adjudication of rights. Firstly, there is no material on record to indicate that the need as pleaded at the time of filing the petition

does not subsist at this point. Even otherwise such a conclusion

cannot be reached, when it cannot be lost sight that the very judicial process consumes a long period and because of the delay in the process if the benefit is declined it would only encourage the tenants to protract the litigation so as to defeat the right. On the facts of the case on hand, the Apex Court noticed that, the petition filed by the landlord is of the year 2004 which was disposed of by the Rent Control Court only in the year 2011. The appeal was thereafter disposed of by the Appellate Authority in the year 2013. The High Court had itself taken time to dispose of the revision petition, only on 06.03.2017. The entire delay cannot

be attributed to the landlord and deny the relief. If as on the date of filing the petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time lapse in the judicial process coming to an end. In Gaya Prasad v. Pradeep Srivastava [(2001) 2 SCC 604] it has been reiterated that the landlord should not be penalised for the slowness of the legal system and the crucial date for deciding the bona fide requirement of landlord is the date of application for eviction.

37. In the instant case the Rent Control Petition is one filed

in the year 2008, which was disposed of by the Rent Control Court only in the year 2015. The appeal filed by the landlord, which is of the year 2015 was disposed of by the Rent Control Appellate Authority in the year 2017. Thereafter, the tenant filed this Rent Control Revision before this Court, which was pending disposal for the last more than 4 years. 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 landlord to start a consulting centre in the petition schedule shop rooms. As already noticed hereinbefore there was no serious challenge to the ability of the landlord, who is a doctor by profession with vast experience, to

start a consulting centre at Kayamkulam, other than the vague allegations in the objection filed in the RCP. At the time of filing of the RCP the landlord was aged 73 years only. Even otherwise, the physical condition of the landlord as stated in the affidavit filed in support of I.A.No.546 of 2014 or that stated in Ext.B2 medical certificate as on 23.02.2014, is not sufficient to completely eclipse the need projected in the Rent Control petition for seeking an order of eviction under Section 11(3) of the Act.

38. In such circumstances, we find absolutely no merits in

the contention raised by the learned counsel for the petitioners that the bona fide need projected in the Rent Control Petition no more exists because of the subsequent events and as such the landlord is not entitled to an order of eviction under Section 11(3) of the Act. The finding of the Rent Control Appellate Authority while granting an order of eviction under Section 11(3) of the Act is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding the Appellate Authority has committed any material irregularity, warranting interference in exercise of the revisional jurisdiction under Section 20 of the Act.

39. Section 20 of the Kerala Buildings (Lease and Rent

Control) Act, 1965 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.

40. 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 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.

41. 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 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.

42. 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 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.

43. 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.

44. 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.

45. Viewed in the light of the law laid down in the decisions

referred to supra, conclusion is irresistible that no interference is warranted in the judgment dated 27.10.2017 of the Appellate Authority in R.C.A.No.5 of 2015.

46. The learned counsel for the petitioners would submit

that considering the situation prevailing in the country on account of COVID-19 pandemic, the petitioners may be given at least one year time to give vacant possession of the petition schedule shop rooms.

47. On the above request made by the learned counsel for

the petitioners, the learned Senior Counsel for the respondent- landlord would submit that a reasonable period of three months' time can be granted for surrendering the vacant possession of the petition schedule shop rooms, on condition that they shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default.

48. The learned counsel for the petitioners would submit

that the petitioners are prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and they shall continue to pay the monthly rent for the remaining period, without any default, till they give vacant possession of the petition schedule shop rooms to the landlord. In such circumstances, this Rent Control Revision is

dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority; however by granting three months' time to the petitioners-legal representatives of the original tenant, to surrender vacant possession of the petition schedule shop rooms to the respondent-landlord, considering the situation prevailing in the country on account of COVID-19

pandemic, subject to the following conditions:

(i) The petitioners herein (legal heirs of the original

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 shop room to the respondent- landlord within three months from the date of this

order and that, he shall not induct third parties into

possession of the petition schedule shop rooms 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 petitioners herein (legal heirs of the original

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 petitioners herein

(legal heirs of the original 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 rooms will stand cancelled automatically and the respondent-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 MIN