Vadakayil Abubacker vs Faysal Rahman

R.C.Rev.No.,R.C.A.No.,R.C.P.No.,Name of the petitioner-tenant

71 of 2021,33 of 2018,12 of 2015,Vadakayil Abubacker

72 of 2021,37 of 2018,9 of 2015,Pradeepkumar

73 of 2021,34 of 2018,13 of 2015,Jithesh

75 of 2021,30 of 2018,8 of 2015,P.Kesavan

79 of 2021,32 of 2018,7 of 2015,P.Munhimohammed

in a wetland without getting any permission from the authorities for reclamation and conversion of the wetland into dry land.,,,

The petitioner in R.C.Rev.No.79 of 2021 is RW1. He deposed that the building was constructed illegally in a wetland. As against the version of,,,

RW1, PW1 deposed that the land was reclaimed decades ago, at the time of his purchasing the property the building was already 35 years old and,",,,

therefore the construction cannot be said to be illegal. Oral evidence may not have much relevance with respect to that aspect.,,,

The respondent purchased the property along with the building in question by virtue of Ext.A1, sale deed. It is dated 23.05.2013. It can be seen",,,

from Ext.A1 that the respondent purchased the landed property along with an existing building. Of course, the tenure of the land has been shown as",,,

wetland. As far as this rent control proceedings are concerned, the said fact has no much relevance. If the construction is not legal, it is a matter to be",,,

dealt with under the provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008. It is for the respondent-landlord to face the",,,

consequences, if any. That cannot be a reason to say that the claim of the respondent who is the landlord, a fact which is beyond dispute now, for",,,

eviction of the tenants from the building is not bonafide. Therefore, the said contention of the petitioners regarding maintainability of the petitions is",,,

untenable.,,,

Ext.A4 is the deed of partnership as per which the respondent along with Sri.Sudhi is conducting the business in solar panels at Kodungallur. The,,,

learned counsel appearing for the petitioners would submit that by virtue of clause 11 in Ext.A4 the respondent is not entitled to commence a new,,,

venture in the same field in any way competing with the firm business and therefore his claim for eviction for the reason that he wants the petition,,,

schedule rooms for starting such a business cannot be said to be a genuine one. Even if he obtained all the rooms, he would not therefore be able to",,,

start the business.,,,

The terms in a deed of partnership are parts of a contract between the partners of the firm. Any prohibition or bar for one of the partners to start,,,

another business of similar nature is a matter of concern of such a partner. That is not a bar created by law. It is a matter of contract. It may be,,,

correct that, if a partner in violation of such a restrictive term in the deed starts a fresh business in the same field, the respondent would be violating",,,

the provisions of the deed. The other partner alone has a cause to espouse the grievance. In any view of the matter that cannot be a reason for,,,

disallowing the plea for eviction by the erring partner. The tenants cannot be heard to contend that for that reason the need projected by the landlord is,,,

not bonafide.,,,

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.,,,

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.,,,

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).,,,

There are fourteen rooms in the building. Ext.C6, rough sketch, picturizes the layout of the building and each room. In the index of Ext.C6 it is",,,

shown that five rooms are available vacant with the respondent. If it is taken from the north, room Nos.2, 3, 10, 11 and 13 are the vacant rooms. Even",,,

if it is considered that those rooms are vacant and available with the respondent, the same being not adjoining ones, he may not be able to make use of",,,

the rooms for the projected purpose. Further, the very case of the respondent-landlord is that in order for housing the large scale business he proposed",,,

to start, all the 14 rooms are required. In the matter of utilizing the space belonging to the landlord, the liberty has to be given to him provided, of",,,

course, it is not fanciful or a ruse for eviction. We are of the view that availability of five vacant rooms with the respondent would not fetter him",,,

claiming eviction of all the tenants on the ground of need he has projected.,,,

PW1 asserted that he has business in solar panels abroad also, apart from his involvement as a partner in the similar business at Kodungallur. The",,,

petitioners have not challenged the financial capacity or ability of the respondent to start such a business. RW1 was put to, during cross examination,",,,

about those facts, but he feigned ignorance. All the aforesaid evidence and circumstances were taken into consideration by the courts below. After",,,

such detailed consideration only both the courts arrived at the conclusion that the need urged by the respondent was bonafide.,,,

Yet another contention raised by the learned Counsel for the petitioners is that the petitioner in R.C.Rev.No.72 of 2021 is not the actual tenant, but",,,

one Sri.Sreenivasan is the tenant. It is accordingly contended that an eviction proceedings initiated even without ascertaining the identity of the tenant,",,,

deserves only to be dismissed. The said contention will not stand for the simple reason that the petitioner has contested the rent control petitions,",,,

carried the matter to the Appellate Authority and further to this Court by filing R.C.Rev.No.72 of 2021. If he is not the tenant what is his interest to,,,

take the pains of contesting the matter this far. In the circumstances, we have no hesitation to find that the petitioner Sri.Pradeepkumar is the tenant in",,,

the shop room scheduled to R.C.P.No.9 of 2015.,,,

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. Following this principle,",,,

this Court in Gireeshbabu T.P. (supra) held that both limbs under the second proviso to Section 11(3) of the Act are conjunctive and the burden of,,,

proof is on the tenant.,,,

With reference to second proviso to Section 11(3) of the Act, the only evidence adduced is the oral testimony of RW1. He is the petitioner in",,,

R.C.Rev.No.79 of 2021. He deposed that he gave evidence on behalf of the respondents-tenants in all the rent control petitions. Having set up a plea,,,

that all of them are entitled to the benefit of the second proviso to Section 11(3) of the Act, it was the burden of each one of them to adduce evidence",,,

in support of that plea. The reason may be their ignorance or wrong legal advice. Either be the reason, lack of evidence on that aspect cannot be",,,

countenanced at this fag end as a reason for ordering a retrial. A person can give oral evidence in court regarding a fact that is in his personal,,,

knowledge and information alone. RW1 deposes that the other tenants also are relying for their livelihood solely on the income derived by them from,,,

their business in the respective petition schedule rooms. It is hard to believe that he stated such facts from his personal knowledge. Hence that,,,

evidence cannot be acted upon.,,,

That apart, oral evidence alone is not sufficient ordinarily to prove the fact that the tenants are king out their livelihood solely on the income derived",,,

from the business in the tenanted premises. Even regarding the income of RW1 from his business, there is no cogent evidence. In these",,,

circumstances, we are of the view that the respondents did not prove that the sole source of income for the petitioners’ livelihood is the income",,,

from their business in the respective petition schedule shop rooms.,,,

It is true that PW1 did not state positively that other rooms are available in the locality to avail on rent. The burden to prove that fact is on the,,,

tenants. Therefore the failure of PW1 to state about availability of alternative buildings in the locality is not enough to find this point in favour of the,,,

tenants. RW1 would not assert even that no other rooms are available in the locality for being taken on rent. In the light of the said evidence, we find",,,

that the petitioners did not discharge their burden to prove the requirement of second proviso to Section 11(3) of the Act.,,,

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 at its discretion.,,,

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.",,,

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.,,,

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.,,,

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.",,,

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.,,,

Viewed in the light of the above principles of law, we hold that the findings entered into by the courts below regarding the bonafides of the need",,,

urged by the respondent-landlord and he is entitled to get the petitioners evicted from the respective petition schedule shop rooms under Section 11(3),,,

of the Act, are not suffering from any illegality, irregularity or impropriety. In the circumstances, we are of the view that the revision petitions are",,,

devoid of any merit and liable to be dismissed.,,,

We, accordingly, dismiss all these revision petitions. The petitioners-tenants are directed to surrender vacant possession of the respective petition",,,

schedule shop rooms to the respondent-landlord within a period of two months from today.,,,