Dismissed

Naduvilakandy Joshy v. Mrs. Poonathum Purayil Karippoli Kadeesumma

Kerala HC29 Nov 2021RCRev./397/2017

Case brief

AI extract

What is this about?

This revision petition dismissed the tenant's challenge to an eviction order under the Rent Control Act. The Court upheld the lower authorities' finding that the landlord's need was bona fide and the RTI reply did not prove vacancy. However, considering the COVID-19 pandemic, it granted six months for vacant possession on conditions.

What did the court decide?

Revision dismissed; six months granted for vacant possession subject to deposit of arrears, filing of affidavit of unconditional undertaking, and payment of future rent without default.

Naduvilakandy Joshy Vs Mrs. Poonathum Purayil Karippoli… — Property and Title | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 29^TH DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943

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R.C.REV.NO.397 OF 2017

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AGAINST THE JUDGMENT DATED 02.08.2017 IN R.C.A.NO.299 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (IST ADDITIONAL DISTRICT JUDGE),KOZHIKODE, AND THE ORDER DATED 27.10.2016 IN R.C.P.NO.43 OF 2015 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF), KOYILANDY

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REVISION PETITIONER:

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NADUVILAKANDY JOSHY, 40 YEARS, S/O N.K. SADANANDAN,NADUVILAKANDY HOUSE, EDAKKULAM AMSOM DESOM, P.O.EDAKKULAM, KOZHIKODE DISTRICT.

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BY ADVS. SRINATH GIRISH P.JERIL BABU

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RESPONDENT:

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MRS. POONATHUM PURAYIL KARIPPOLI KADEESUMMA 65 YEARS, D/O KUTTY MAMMY, FATHIMA MANZIL,CHEMANCHERY, THIRUVANGOOR DESOM,KOYILANDY TALUK, KOZHIKODE DISTRICT.

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BY ADV SMT.T.RASINI

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.C.REV.NO.397 OF 2017

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ORDER

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Anil K. Narendran, J.

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The petitioner is the respondent-tenant in R.C.P.No. 43 of 2015 on the file of the Rent Control Court (Munsiff), Koyilandy, a petition filed by the respondent herein-landlady under Sections 11(3) and 11(4)(iii) of Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building . The Rent Control Court by the order dated 27.10.2016 granted an order of eviction under Section 11(3) of the Act and the tenant was directed to put the landlady in possession of the petition schedule building within two months. The order of eviction sought for under Section 11(4)(iii) of the Act was declined.

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2 . Feeling aggrieved by the order of eviction granted by the Rent Control Court under Section 11(3) of the Act, the tenant filed R.C.A.No.299 of 2016 before the Rent Control Appellate Authority (1^st A dditional District Judge), Kozhikode, invoking the provisions under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment date d 02.08.2017, thereby confirming the order of eviction passed by the Rent Control Court under Section 11(3) of the act. Feeling aggrieved

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by the judgment dated 02.08.2017 of the Appellate Authority in R.C.A.No.299 of 2016 and the order of the Rent Control Court dated 27.10.2016 in R.C.P.No.43 of 2015, the petitionertenant is before this Court in this Rent Control Revision filed under Section 20 of the Act.

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On 05.12.2017, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued notice to the respondent-landlady by speed post. In I.A.No.3137 of 2017, this Court granted an interim stay of all further proceedings in E.P.No.130 of 2017 in R.C.P.No. 43 of 2015 on the file of the Munsiff Court, Koyilandy, for a period of one month. The said interim order, which was extended from time to time, was in force till 01.03.2018.

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Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlady.

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The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction granted by the Rent Control Court under Section 11(3) of the Act in the order dated 27.10.2016 in R.C.P.No.43 of 2015 , which stands confirmed by the judgment of the Rent Control Appellate Authority dated

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02.08.2017 in R.C.A.No.299 of 2016 .

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During the course of arguments, the learned counsel for the petitioner-tenant would confine the challenge made in this Rent Control Revision against the finding of the Rent Control Court and the Appellate Authority on the first proviso to Section 11(3) of the Act.

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The learned counsel for the petitioner-tenant would contend that the finding of the Rent Control Court and the Appellate Authority on the first proviso to Section 11(3) of the Act cannot be sustained in law, in view of the evidence on record, i.e., Ext.B1 reply by the Public Information Officer, Chemanchery Grama Panchayat, and also the admission in the oral testimony of the daughter of the landlady, who was examined as PW1.

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Per contra, the learned counsel for the respondentlandlady would contend that the reasoning of the Rent Control Court and the Appellate Authority for granting an order of eviction under Section 11(3) of the Act, based on the finding that the need projected in the Rent Control Petition is bona fide; the first proviso to Section 11(3) of the Act has no application on the facts of the case; and that the tenant is not

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entitled to the protection of the second proviso to Section 11(3) of the Act, warrants no interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 9. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for

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his own occupation or for the occupation by any member of his

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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

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tenant is depending for his livelihood mainly on the income

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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.

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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

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must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.

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11 . In Ammu v. Nafeesa [2015 (5) KHC 718] a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra .

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12. In the instant case, the bona fide need projected in the Rent Control Petition was that of PW1, the daughter of the landlady, to start a tailoring shop in the petition schedule building. The Rent Control Court and the Appellate Authority, on a proper appreciation of the materials on record rightly arrived at a conclusion that the need projected by the landlady for seeking eviction of the petition schedule shop room under Section 11(3) of the Act is bona fide. The reasoning of the Rent Control Court and also that of the Appellate in the impugned order and judgment cannot be said to be either perverse or patently illegal or it suffers from any legal infirmity.

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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

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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.

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In M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC

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355] the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. In the said decision, the Apex Court relied on the law laid down in Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141] , wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court

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found that, even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question.

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In Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21] the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of

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the burden by adducing evidence either through his own

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testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its non-occupation. It is up to the tenant alone to take up the contention and prove that landlord is in vacant possession of premises.

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In Vasantha Mallan , relying on the law laid down by the Apex Court in M.L. Prabhakar [(2001) 2 SCC 355] the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to

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doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be

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taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for nonoccupation of the premises for his alleged needs.

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In the instant case, relying on Ext.B1 reply dated 11.04.2016 obtained under the Right to Information Act, 2005, from the State Public Information Officer, Chemanchery Grama Panchayat, the tenant contended that the landlady is in occupation of two shop rooms, i.e., room Nos.C.P.No.18/509 and C.P.No.18/513 a nd as such, she is not entitled for an order of eviction in view of the prohibition contained in the first proviso to Section 11(3) of the Act.

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The bona fide need projected in the Rent Control Petition was that of PW1, the daughter of the landlady, to start a tailoring shop in the petition schedule building. As per Ext.C1 report and Ext.C2 plan submitted by the Advocate Commissioner the petition schedule building is facing towards north. It is having frontage to Kappad-Thiruv angoor Road. There is also a veranda with a measurement of 3.55 meters X

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3.10 meters, in front of the petition schedule shop room. Insofar as the shop room bearing number C.P.No.18/509 is concerned, it is a small building behind the main building and the said building is having frontage to a small road, which is not having any importance like the Kappad-Thiruvangoor Road. The shop room bearing number C.P.No.18/ 513 is used for conducting Haritha Fancy Stores. Though PW1, during cross examination deposed that there is vacant room belonging to the landlady, the Rent Control Court as well as the Appellate Authority, relying on Ext.C1 report and Ext.C2 plan submitted by the Advocate Commissioner, arrived at a conclusion that there are no vacant rooms in the possession of the landlady, that can be used for the proposed need.

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Before the Rent Control Court and also the Appellate Authority, the tenant relied on Ext.B1 reply received under the Right to Information Act, from the State Public Information Officer, Chemanchery Grama Panchayat, in order to make out a case for the applicability of the first proviso to Section 11(3) of the Act. Before this Court, the learned counsel for the petitioner-tenant placed reliance on the decision of the Division Bench of this Court in Ramla v. Oshiparambil Chandran

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[2016(4) KHC SN 1] and also the judgment of a learned

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Judge of the Punjab High Court in Munshi Ram and Another

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v. Balkar Singh and Others [2018 ACJ 1157] .

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In Panoli Alikutty and Another v. Suresh Babu

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[2018 (5) KHC 621] the question that came up for consideration before a Full Bench of this Court was as to whether an entry in a property tax or house tax assessment book maintained by a local authority relating to the occupancy or vacancy of a building could be received as evidence of the said fact in the light of Section 26 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) in a proceedings for eviction under the Act. The Full Bench noticed that, Section 26 of the Act is only a provision which enables the parties to a proceedings under Section 5(1) of the Act to let in evidence as to the rental value of the buildings as fixed by the local authority for the relevant period for the purpose of levying property tax or house tax, as the case may be, by producing certified copies of the extracts from the property tax or house tax assessment books of the local authority. The scheme of the Act does not indicate that the legislature intended the parties to a proceeding for eviction under the Act to prove the vacancy

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or occupancy of a building by producing certified extracts of the property tax or the building tax assessment books of the local authority. The said certified extracts can at best be a piece of evidence and the occupancy of the building needs to be established by the parties by other corroborative evidence. The Full Bench held that the view taken in Cheruvalath

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Krishnadasan v. Addissery Raghavan [2017 (4) KHC 894] that the entries in the property tax assessment register cannot be taken as conclusive proof of the vacancy position of a building conforms to the provisions of the Act and, therefore, in order. In Nabeesa Abdul Khader v. Suresh Kurian [2009 (2) KHC 64] this Court did not hold that an entry in a property tax or building tax assessment register can be received as evidence to establish the vacancy position of a building. Instead, this Court has only held that a presumption can be drawn based on an entry in a property tax or building tax assessment register relating to occupancy or vacancy of the building and it is for the opposite party to dislodge the said presumption. Having understood the scope of Section 26 of the Act, as indicated above, there is absolutely no basis for any such presumption. As entries are made in the property tax and

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building tax assessment registers of the local authorities as part of official acts, even dehors Section 26 of the Act, the Courts are entitled to presume that such entries have been made in the regular course of business in the light of illustration (e) of Section 114 of the Indian Evidence Act, 1872. But, illustration (e) in the said provision permits only presumption to be drawn in matters of procedure. It does not permit a presumption to be drawn where the question does not relate to the manner of doing an official act. The decision in Nabeesa Abdul Khader is, therefore, to be clarified to that effect. In Abdul Kader v. George Joseph and another [2009 (1) KHC 296] the Division Bench held that an entry in the property tax or building tax assessment register maintained by the local authority is evidence of the vacancy position of a building. The said decision cannot be accepted as correct and the Full Bench overruled the same.

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In view of the law laid down by the Full Bench in Panoli Alikutty , relying on Ext.B1 reply received under the Right to Information Act, from the State Public Information Officer, Chemanchery Grama Panchayat, the tenant cannot make out a case for the applicability of the first proviso to

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Section 11(3) of the Act.

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Viewed in light of the law laid down in the decisions referred to supra, conclusion is irresistible that the finding of the Rent Control Court and that of the Appellate Authority that the first proviso to Section 11(3) of the Act in the impugned order and judgment cannot be said to be either perverse or patently illegal or it suffers from any legal infirmity.

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In Sait Nagee Purushotham and Co. Ltd. v. Vimalabai Prabhulal [(2005) 8 SCC 252] the Apex Court held that, it is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.

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The landlord is the best judge of his need or requirement and the manner in which he should conduct his affairs. It is not for the tenant to dictate terms as to which premises will be suitable or not for the proposed business of the landlord, or to advice the landlord what he should do and what he should not do. Neither the tenant nor the court can thrust upon its opinion or wisdom on the landlord and dictate terms in this regard.

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25. The Rent Control Court as well as the Appellate Authority found that the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. The learned counsel for the petitioner-tenant did not raise any challenge against the finding of the Rent Control Court and the Appellate Authority on the second proviso to Section 11(3) of the Act.

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26. 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 subsection (1) shall be in its discretion.

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In Rukmini Amma Saradamma v. Kallyani

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Sulochana [(1993) 1 SCC 499] , the scope of revisional

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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 reappreciated 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.

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In T. Sivasubramaniam v. Kasinath Pujari

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[(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.

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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

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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.

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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

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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.

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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

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the High Court while exercising revisional jurisdiction.

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32 . The learned counsel for the petitioner-tenant would submit that considering the situation prevailing in the country on account of COVID-19 pandemic, the tenant may be given at least eight months time to give vacant possession of the petition schedule room.

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33. On the above request made by the learned counsel for the tenant, the learned counsel for the respondent-landlady would submit that a reasonable period of five months may be granted to the tenants for giving vacant possession of the petition schedule shop room, on c ondition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default.

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The learned counsel for the tenant would submit that the tenant is prepared to clear the entire dues towards arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule shop room to the landlady.

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In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority; however by granting six months' time to the petitioner-tenant, to surrender vacant possession of the petition schedule shop room to the respondent-landlady, considering the situation prevailing in the Country on account of COVID-19 pandemic, subject to the following conditions:

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(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 he will surrender vacant possession of the petition schedule shop room to the petitioner-landlady within six months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room;

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(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

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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 month, without any default;

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(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 shop room will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction.

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Sd/ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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MIN

Naduvilakandy Joshy v. Mrs. Poonathum Purayil Karippoli Kadeesumma

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Naduvilakandy Joshy v. Mrs. Poonathum Purayil Karippoli Kadeesumma

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