Buildings (Lease and Rent Control) Act, 1965 (Kerala) – Section 11(2)(b), 11(3) and 11(4)(ii) – 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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K.NARENDRAN & P.G. AJITHKUMAR; JJ.
R.C.REV.NO.42 OF 2022; 11TH DAY OF APRIL 2022
RAMANALUKKAL SHAREEF v. MOHAMMED
Against the judgment dated 15.12.2021 in R.C.A. No. 8 of 2020 on the file of the Rent Control Appellate Authority (Addl.District Judge), Tirur which was filed against the order dated 27.01.2020 in R.C.P. No. 02 of 2018 on ther file of the Rent Control Court (Munsiff), Tirur
Revision Petitioner By Advs. T. Krishnanunni ( Sr.) Vinod Ravindranath M.devesh Meena. A. Thareeq Anver K. Anish Antony Anathazhath Ashwin Sathyanath M. R. Mini K. C. Kiran
Respondent By Adv. Jamsheed Hafiz (caveator) R1
O R D E R
The tenant is the revision petitioner. The respondentlandlord filed R.C.P.No.2 of 2018 before the Rent Control Court (Munsiff), Tirur, seeking eviction of the petitioner from the petition schedule shop room under Section 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court ordered eviction under Section 11(2)(b) and 11(3) and rejected the plea for eviction under Section 11(4)(ii) of the Act. An appeal was preferred under Section 18(1)(b) of the Act by the petitioner before the Rent Control Appellate Authority (Additional District Judge), Tirur; but not successful. Being aggrieved thereof, the petitioner has preferred this revision under Section 20 of the Act.
2. On 09.03.2022, the revision petition was admitted. The respondent entered appearance through his learned counsel.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. The petition schedule building was in the possession of the petitioner as a tenant even prior to the purchase of the same by the respondent. On 12.02.2002, the petition schedule shop room was purchased by the respondent. This is a three-shuttered room. Rent was enhanced to Rs.9,000/-. However, the petitioner kept the rent from November 2017 in arrears. The respondent is a Gulf returnee. He now remains unemployed. Since he had to undergo a surgery, he is not able to do any hard labour. In the circumstances, the respondent decided to start a bakery and stationery business in the petition schedule shop room. His son-in-law has a bakery at a nearby station and his assistance will be available to the respondent. On such grounds the respondent claimed eviction.
5. The petitioner resisted the rent control petition. He contended that rent was Rs.1,800/- and never has it been increased. Rent till 30.06.2017 was paid. But no receipt was issued by the respondent. Since increase in rent was demanded, rent from July 2017 onwards was not accepted by the respondent. The need urged by the respondent is not bona fide. The petition schedule shop room is situated near Mission Hospital, Codakkal, and therefore, it is not a suitable place for conducting a bakery and stationery business. The petitioner is depending for his livelihood solely on the income from the business in the petition schedule shop room. No suitable room is available in the locality to shift his business. On the said grounds, the petitioner sought to dismiss the petition.
6. The petitioner had been a tenant in the petition schedule shop room even prior to the respondent purchasing the same. On the purchase, the respondent was attorned to by the petitioner and the tenancy continued. 12.02.2002 is the date of purchase of the petition schedule room by the respondent. His case is that the rent was eventually increased to Rs.9,000/- per month. As of November, 2017, rent at that rate for 17 months has become due. Eviction was sought urging that the petitioner purposefully avoided payment of the rent during that period. The petitioner, on the other hand, contended that rent for a few months remained due, but not on account of his lapse such arrears occurred. It is his case that the rate of rent is Rs.1,800/- per month and the claim of the respondent that the rent was enhanced to Rs.9,000/-, is incorrect.
7. The learned counsel appearing for the petitioner would contend that no evidence has been let in by the respondent to prove that the rent was increased to Rs.9,000/-; whereas, the rate of rent was Rs.1,800/- is an admitted fact. In the absence of any evidence, mere oral assertion by the landlord cannot be taken as a proof regarding rate of rent and on that reason, the learned counsel would submit that the findings of the courts below are incorrect. It is submitted that the findings of the courts below resulted in arbitrary fixation of the rent, for which the courts had no jurisdiction. The rent can either be mutually agreed one or fixed by the court on a properly instituted proceedings under Section 5(1) of the Act. In the view of the learned counsel for the petitioner there is no evidence to substantiate that the parties ever had agreed the rate of rent as Rs.9,000/-. There is no case that fair rent for the petition schedule room was ever fixed either.
8. The learned counsel for the petitioner would submit that while appreciating the evidence in order to find out what exactly has been the rate of rent, there occurred manifest error on the part of both the courts below. In that regard, the decision in John v. Babu [1999 (3) KLT 269] was placed reliance on. In the said decision, it was held that,-
“Since it is the landlord who is approaching the Rent Control Court with the complaint that the tenant has kept in arrears rent due, the burden is on him to prove that the tenant has defaulted in paying the rent. In order to discharge the above burden the landlord has to prove the rent due by the tenant. If the tenant refuted the rate of rent and the allegation that he has defaulted rent and if the landlord fails to prove that the tenant has not paid or tendered the rent at the rate claimed by the landlord, the application of the landlord is only to be dismissed. The Court cannot take upon the duty of deciding “reasonable rate of rent payable in respect of the premises” and substitute the same for the rent due by the tenant as mentioned in Section 11(2)(b).”
9. The Appellate Authority particularly has considered the evidence in detail on this aspect. It was observed that the rent was periodically enhanced during the period of eight years before the purchase of the petition schedule shop room by the respondent, thereby to fix the rate as Rs.1,800/-. RW1 took a stand that though prior to the purchase, there was enhancement of rent several times, no such enhancement occurred after the purchase in 2002 by the respondent. The Appellate Authority on observing that the said stand taken by RW1 is quite improbable and having regard to the ordinary human conduct and also the natural events, it could only be held that the rent was increased to Rs.9,000/- per month as asserted by PW1. Such a reasoning may appeal to common sense. From the rival versions of PW1 and RW1, it is possible to have such an assumption as well. But assumptions or probabilities cannot take the place of proof. It being a civil litigation, preponderance of probability is enough to prove a fact. But when it comes to a dispute with respect to the rate of rent, in the absence of an order of court regarding fixation of fair rent, it is a matter of contract between the parties. It is not possible to bank upon mere probability to enter a finding regarding the rate of rent. In the absence of any independent materials from which an inference with respect to the rate of rent could be inferred, we are unable to appreciate the finding of the courts below.
10. Here is a case where PW1 deposed that the rent was Rs.9,000/- and RW1 stated that the rent was Rs.1,800/-. In the absence of any independent material, one version cannot be preferred to the other. In the said circumstances, we are of the view that the finding of the Rent Control Court that the rent agreed to between the parties for the petition schedule room for the relevant period is Rs.9,000/-, is an error both on facts and in law. That finding cannot be sustained. In reversal of the said finding, we hold that the rent at the rate of Rs.1,800/- has been in arrears for a period of 17 months as on 05.12.2017. It is true that the petitioner produced Ext.B1 series to show that he sent amounts by money order to the respondent. It however, would not cover the entire arrears of rent with interest and costs contemplated under Section 11(2)(b) of the Act. In the circumstances, order of eviction under Section 11(2)(b) of the Act is liable only to be affirmed and we do so.
11. The respondent claimed that he requires the petition schedule shop room for the purpose of starting a bakery and stationery business as he, after his return from Gulf, had undergone a surgery and is unable to carry out any hard labour. In the said circumstances his only option is to start a business of his own, so that he can earn for his livelihood. It was in the said scenario, he decided to start a bakery and stationery business in the petition schedule shop room.
12. The petitioner refuted the bona fides of that claim. It was contended that the petition schedule shop room is situated near to a hospital, where the medical shop business alone can flourish and a stationery and bakery business is quite unsuitable to the locality. Such a business cannot profitably be conducted there also.
13. The learned counsel would contend that the petitioner has been conducting a medical shop in the tenanted premises for quite a long period and considering the proximity of it to the Mission Hospital and in the absence of no other medical shops in the vicinity, the petitioner is entitled to get exemption from eviction under Section 11(11) of the Act. The petitioner is conducting a medical shop as his proprietory concern. Section 11(11) of the Act does not intend to include such an institution at all. Clause (i) of Section 11(11) of the Act provides exemption from eviction to a tenant, who is engaged in an employment notified by the Government as an essential service. A private medical shop is not an essential service. Neither, any evidence to show that the establishment of the petitioner is notified as an essential service by the Government is produced. In the said circumstances, the said contention is not tenable.
14. PW1, the respondent, deposed regarding his need to have vacant possession of the petition schedule shop room. Having returned from the Gulf and presently unemployed, it is his need to start a business. His son-in-law has a bakery business at Alathiyur, a place which is not far away from Thirunavaya, Codakal, where the petition schedule shop room is situated. He expects help and assistance from his son-inlaw, who is experienced in bakery business. The room is near a hospital. A bakery business there cannot be said to be unsuitable to the locality. The contention of the petitioner in that regard does not appear to be prudent. It may be correct to say that a medical shop may be a more appropriate business near a hospital. That can never mean that one cannot conduct a bakery in the vicinity of a hospital. The place where people throng and pass by, a bakery business can certainly flourish. At any rate, it is a matter of concern of the landlord and the tenant cannot have a say on it. When the landlord decided on his wisdom that he wants to conduct a bakery and stationery business in the petition schedule shop room, it is not available for the petitioner to contend that such a need a not bona fide saying that the room has no locational advantage for such a business. The question is only whether such a need was urged honestly and sincerely.
15. 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.
16. 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.
17. 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.
18. Viewed in the light of the aforesaid decisions and the evidence on record it is establishes that the need urged by the respondent is bona fide. We therefore affirm the findings of the courts below in that regard.
19. The petitioner has no contention that the respondent has in his possession any other building or room suitable for his purpose. The petitioner, however, raised a contention that he is entitled to get the benefit of second proviso to Section 11(3) of the Act. He as RW1 deposed in court that his only source of income is the business in the petition schedule shop room. The petition schedule shop room is a big one with three shutteres. The business there should certainly be in large volume. It cannot be expected that the petitioner is not maintaining statements of accounts regarding his business. Other than his oral testimony, the petitioner did not place on record any evidence to prove the income he has been deriving from the petition schedule shop room. Also, there is nothing to show that he has no other sources of income.
20. The Commissioner appointed in this case visited the local area where the petition schedule shop room is situated. In the report of the Commissioner several vacant rooms available in the locality are pointed out. No objection to Ext.C2 report has been filed. No explanation has come forth from the petitioner to show that none of such rooms is actually available. In the said circumstances, inevitable finding is that the petitioner failed to prove the ingredients of second proviso to Section 11(3) of the Act. The findings of the courts below in regard to this fact cannot therefore be interfered with.
21. 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. A Full Bench of this Court in Francis v. Sreedevi Varassiar [2003 (2) KLT 230] held that it is for the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience.
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 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 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.
24. In Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412] after considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh (supra) the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could not re-appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.
25. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it.
26. At the time of pronouncement of this Order, the learned counsel for the petitioner has made a request to afford time till 31.12.2022 for vacating the premises pointing out the difficulty in finding out another room.
27. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule rooms, 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 the petitioner will surrender vacant possession of the petition schedule rooms to the petitioner-landlord within six months from the date of this order and that, the petitioner shall not induct third parties into possession of the petition schedule rooms and further the petitioner shall conduct any business in the petition schedule rooms only on the strength of a valid licence/ permission/ consent issued by the local authority/ statutory authorities;
(ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default;
(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 rooms will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction.