Dismissed

Basheer v. P.Ashraf Koya Thangal

Kerala HC1 Aug 2022RCRev./75/2018

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed revision petitions filed by tenants against eviction orders. The tenant-landlord proved a bona fide need for the shop premises for business, and the tenants failed to prove livelihood dependence or unavailability of alternative accommodation under the second proviso to Section 11(3).

What did the court decide?

Tenants granted six months time to vacate premises upon filing an affidavit undertaking no third-party possession and paying arrears.

Basheer Vs P.Ashraf Koya Thangal — Pension and Retirement Benefits | Kerala HC (2022)

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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 1^ST DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 R.C.REV.NO. 74 OF 2018

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AGAINST THE JUDGMENT DATED 31.10.2017 IN R.C.A.NO.266 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED 31.08.2016 IN R.C.P.NO.128 OF 2014 OF THE RENT CONTROL COURT (PRINCIPAL

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MUNSIFF-I), KOZHIKODE

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REVISION PETITIONER:

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ABBAS M. AGED 58 YEARS, S/O.ENI, SUBYBAS JEWELLARY, PALLIKKAL SHOPING COMPLEX, NEAR KODUVALLY BUS STAND, KODUVALLY.P.O, KODUVALLY AMSOM DESOM, KOZHIKODE DISTRICT.

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BY ADVS.

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SRI.P.R.SREEJITH SMT.MAYA CHANDRAN SRI.M.PROMODH KUMAR SRI.K.B.SAJEESH

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RESPONDENT:

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P.ASHRAF KOYA THANGAL

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AGED 49 YEARS,S/O LATE ATTA KOYA THANGAL, PULLUNNI CHALIL HOUSE, PADANILAM.P.O, MADAVUR AMSOM DESOM, KOZHIKODE DISTRICT, NOW RESIDING AT ISHQRASOOL MANZIL, ARIBRA.P.O, MORAYOOR VILLAGE, KONDOTTY TALUK, KOZHIKODE DISTRICT-673649.

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R.C.Rev.Nos.74 & 75 of 2018

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BY ADVS. SRI.P.K.BABU SMT.T.V.NEEMA

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THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 07.07.2022, ALONG WITH R.C.Rev.NO.75/2018, THE COURT ON 01.08.2022 DELIVERED THE FOLLOWING:

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R.C.Rev.Nos.74 & 75 of 2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM 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 1^ST DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 R.C.REV.NO. 75 OF 2018

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AGAINST THE JUDGMENT DATED 31.10.2017 IN R.C.A.NO.265 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KOZHIKODE AND THE ORDER DATED 31.08.2016 IN R.C.P.NO.138 OF 2014 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF-I), KOZHIKODE REVISION PETITIONER:

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BASHEER

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AGED 58 YEARS, S/O. USMAN, PALLIKKAL SHOPING COMPLEX, NEAR KODUVALLY BUS STAND, KODUVALLY P.O., KODUVALLY AMSOM DESOM, KOZHIKODE DISTRICT.

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BY ADVS. SRI.P.R.SREEJITH SMT.MAYA CHANDRAN SRI.M.PROMODH KUMAR SRI.K.B.SAJEESH

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RESPONDENT:

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P.ASHRAF KOYA THANGAL

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AGED 49 YEARS, S/O. LATE ATTA KOYA THANGAL, PULLUNNI CHALIL HOUSE, PADANILAM P.O., MADAVUR AMSOM DESOM, KOZHIKODE DISTRICT, NOW RESIDING AT ISHQRASOOL MANZIL, ARIBRA P.O., MORAYOOR VILLAGE, KONDOTTY TALUK, KOZHIKODE DISTRICT - 673 649.

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R.C.Rev.Nos.74 & 75 of 2018

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BY ADVS. SRI.P.K.BABU SMT.T.V.NEEMA

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THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 07.07.2022, ALONG WITH R.C.Rev.NO.74/2018, THE COURT ON 01.08.2022 DELIVERED THE FOLLOWING:

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R.C.Rev.Nos.74 & 75 of 2018

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O R D E R

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Ajithkumar, J.

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The tenants are the revision petitioners. The respondentlandlord filed R.C.P.Nos.128 and 138 of 2014 before the Rent Control Court (Principal Munsiff-I), Kozhikode, seeking eviction of the petitioners under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Petitions were dismissed by the Rent Control Court as per common order dated 31.08.2016. R.C.A.Nos.265 and 266 of 2016 were preferred by the respondent under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge-II), Kozhikode. The appeals were allowed in part ordering eviction of the petitioners from the respective petition schedule shop rooms under Section 11(3) of the Act. Aggrieved by the said judgment, the petitioners have preferred these revision petitions under Section 20 of the Act.

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The revision petitions were admitted to file.

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Execution of the orders of eviction was stayed initially for a

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R.C.Rev.Nos.74 & 75 of 2018

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period of one month. The order of stay was extended from time to time and is still in force.

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The petition schedule shop room involved in R.C.P.No.128 of 2014 is on the ground floor and the petition schedule shop room involved in R.C.P.No.138 of 2014 is on the first floor of the building. The respondent seeks eviction of the petitioners from the respective shop rooms on the ground of bona fide need for his own occupation. He wants to start a textile shop in the ground-floor room and a tailing unit in the first-floor room.

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That claim was resisted by the petitioners raising several contentions. That, the respondent filed R.C.P.Nos.72 and 73 of 2009 seeking eviction of the petitioners from the respective tenanted premises on the ground of arrears of rent and bona fide need. Those R.C.Ps. and the appeals thereon were dismissed. They filed revision petitions in that matter and withdrew later. Hence, the present petitions are barred under Section 15 of the Act. Bona fides of the need urged by the respondent was disputed on many grounds. The benefit of

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R.C.Rev.Nos.74 & 75 of 2018

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the first and second provisos to Section 11(3) of the Act was also claimed by the petitioners.

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At the trial, the respondent was examined as PW1.

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The petitioners were examined as RWs.1 and 2. Two Commissioners in these cases were examined as CWs.1 and 2. Exts.A1 to A13, B1, C1, C1(a), C2 and C2(a) were marked. Evidence was considered in detail by the Rent Control Court. The need urged by the respondent was not accepted as bona fide by the Rent Control Court. It was also found that the petitioners were entitled to the benefit of the second proviso to Section 11(3) of the Act. Accordingly, the Rent Control Court dismissed the petitions. Before the Appellate Authority, the correctness and legality of the findings of the Rent Control Court were seriously contested. After re-appreciation of the evidence, the Appellate Authority accepted the case of the respondent with respect to the plea for eviction on the ground of bona fide need, and resultantly, the Appellate Authority directed the petitioners to surrender vacant possession of the respective petition schedule shop rooms within 15 days from the date of the judgment.

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R.C.Rev.Nos.74 & 75 of 2018

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It is contended that R.C.P.Nos.128 and 138 of 2014 are barred by the provisions of Section 15 of the Act, for the reason that the respondent abandoned earlier Rent Control Petitions filed by him seeking eviction on the ground of bona fide need. R.C.P.Nos.72 and 73 of 2009 were filed by the respondent seeking eviction of the petitioners on the ground of arrears of rent and bona fide need. Those petitions were dismissed and the appeals were also dismissed. The respondent filed R.C.Rs. before this Court in the matter. When the matter came up for hearing before this Court, the respondent sought permission to withdraw the cases reserving his right to initiate fresh proceedings for eviction. The learned counsel appearing for the respondent submits that the need then urged was that the respondent wanted to start an Unani treatment centre. But on realising that he was not competent to render Unani treatment, he abandoned that idea. It was for that reason he withdrew from the earlier rent control petitions. The learned counsel would submit that firstly, the respondent obtained leave to initiate fresh eviction

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R.C.Rev.Nos.74 & 75 of 2018

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proceedings against the petitioners and secondly, that there was no decision in the R.C.Ps. on merits, so as to attract the mischief of Section 15 of the Act.

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As per the provisions of Section 15, the Rent Control Court is bound to reject a petition for eviction summarily if there was an earlier petition between the same parties and the claim in such petition was substantially the same. The further condition for getting the provisions of Section 15 attracted is that the issues in the previous proceedings have been finally decided. In Janakiamma and

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Others v. Bhaskaran Nambiar [2014 (4) KLT 931] , this

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Court held that what is referred to in Section 15 of the Act is only on re-agitating issues. One of the differences between Section 11 of the Code of Civil Procedure, 1908, and Section 15 of the Act is, the former refers to "matter directly and substantially in issue" and in the latter, the word "matter" is conspicuously absent, and it denotes only "facts in issue". This is obvious because grounds of eviction in the Rent Control Act are based on personal action relatable to the landlord or

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R.C.Rev.Nos.74 & 75 of 2018

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tenant, which by very nature is recurring. The expression "substantially" used in Section 15 of the Act would necessarily indicate that the issue must have been decided on merits in the former proceedings.

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In the light of the proposition of law obtained from the above decisions, there cannot be a bar under the provisions of Section 15 of the Act in these cases. Earlier, R.C.Ps. were not decided on merits. Further, the respondent withdrew those petitions reserving his right to initiate fresh eviction proceedings. Therefore, the Appellate Authority rightly had repelled the said contention. Hence, we find no reason to interfere with the same.

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The learned counsel appearing for the petitioners contended that the room scheduled in R.C.P.No.138 of 2014 is lying integrated with another room, which belongs to a different landlord, and therefore, no eviction can be ordered. If the petitioners are to be evicted, the tenancy has to be split up, which is impermissible under the provisions of law. It is seen from the Commissioner's report that the said rooms

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have been made a common hall by removing the party wall. But it is a fact that the petitioner occupies the rooms under different tenancy arrangements. It may be true that both rooms were united by removing the dividing hall. That does not mean that the premises demised by the respondent to the petitioner lost its identity. In fact, there is no union of two tenancies notwithstanding the integration of areas of such tenancies. Therefore, it cannot be said that there would be splitting up of tenancy in case of ordering eviction of the petitioner from the shop rooms involved in R.C.P.No.138 of 2014.

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10. In Mar Appraem Kuri Co.Ltd. v. Dix [2004 (1)

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KLT 678] , this Court considered the situation when the splitting up of tenancy and consequent bar from seeking eviction will be attracted. This Court held that,-

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“On purchasing the tenanted premises the unity and integrity of the estate could be split up and the assignee landlord could seek eviction on the available grounds under Section 11 of the Act. The assignee, however, has to show that the assigned portion is in a state of being identified and partial eviction is possible on facts. There

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is no need for the consent of the tenant for severance of the reversion and the assignment of the part so severed. Further, there is no need for a consensual attornment since the attornment is brought about by operation of law. Therefore the question of limitation on the right of the landlord against splitting up of the integrity of the tenant, inhering in the inhibitions of his own contract does not visit the assignee of the part of the reversion. If the assignee landlord could make out a case for eviction under Section 11 of the Act, the fact that the tenant had not consented to the attornment or that it would disrupt the unity and integrity of the tenancy which he had with the original landlord is of no avail or consequence.”

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The aforesaid view fortifies that the petitioner cannot resist

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the plea for eviction on the ground of splitting up of the tenancy.

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The learned counsel appearing for the petitioners would contend that the evidence of PW1 itself reveals that he has put forth the need of starting a textile shop and a tailoring unit in the petition schedule shop rooms without any bona fides. In the earlier rent control petitions, he maintained that he wanted to start an Unani treatment centre in the same

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R.C.Rev.Nos.74 & 75 of 2018

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premises. He dropped that idea and he came forward with a new proposal of starting a textile shop and a tailoring unit. He

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deposed before the court that when he returned from Gulf itself, he had the idea of starting a textile shop. He further emphasised that he had such an idea for the last eight years, but he did not give any reasons for initiating the proceedings after such a long lapse of time. When considering the said nature of his testimony, in the view of the learned counsel, the need he urged cannot be said to be genuine or honest.

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Section 11 of the Act deals with the 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

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R.C.Rev.Nos.74 & 75 of 2018

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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.

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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

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R.C.Rev.Nos.74 & 75 of 2018

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premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant.

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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.

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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

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R.C.Rev.Nos.74 & 75 of 2018

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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.

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PW1 deposed that he has two daughters and it is necessary for him to start a business of his own to augment his income. He deposed in court that the idea of starting a textile business originated eight years before, but only subsequently he thought of initiating the proceedings for

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R.C.Rev.Nos.74 & 75 of 2018

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eviction on the basis of such a need. It may be noted that in order to start a business, one has to have not only a building but also all other resources, including sufficient funds. When PW1 deposed before the court that despite having an idea to start such a business for long, he could practicalised it only later, it cannot be said that he has any oblique motive behind it. There was no bar for him to initiate eviction proceedings at any time. But it is for him to make all other arrangements, and therefore, only on account of the delay, his bona fides, cannot be doubted. Applying the principles laid down in the aforesaid decisions, the need urged by PW1 can only be said to be honest and genuine. The Appellate Authority rightly had held so and we do not find any reason to interfere with the same.

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It was contended that the respondent had other rooms also in his possession in which he can conveniently start such a business. But the petitioners did not specifically plead as to the availability of any particular room in the possession of the respondent. Only if it is pleaded and proved

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R.C.Rev.Nos.74 & 75 of 2018

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that the landlord is in possession of vacant premises, he is cast with the obligation of explaining special reasons for not occupying such rooms. Here, the petitioners did make only a vague contention that the respondent has vacant rooms in his possession. Such a plea is not enough to attract the first proviso to Section 11(3) of the Act. Needless to say, evidence is totally lacking on this aspect, and therefore, the said plea of the petitioners can only be rejected.

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As per the second proviso to Section 11(3) of the Act, the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 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

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R.C.Rev.Nos.74 & 75 of 2018

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similar to that of the tenanted premises in terms of the rate of rent and convenience.

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This view regarding the burden of proof has been approved by the Apex Court in Kunhamma @ Lakshmi Ammas Children and another v. Akkali Purushothaman

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and others [(2007) 11 SCC 181], where it was observed,

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“From a perusal of the judgment of the Full Bench of the Kerala High Court reported in Francis v. Sreedevi Varassiar [2003 (2) KLT 230] we observe that the onus lies on the tenant to prove that he was dependent on the income derived from the business being carried on from the demised premises and that there was no other suitable building to which he could shift his business.”

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The petitioner in R.C.Rev.No.74 of 2018 is conducting a furniture shop in the petition schedule premises. He as RW1 deposed that his only income to depend upon for his livelihood is from the said business. The petitioner in R.C.Rev.No.75 of 2018 is conducting a textile business. He also claimed that his sole source of livelihood is the income from that business. He, as RW2, deposed for substantiating that contention. The Appellate Authority pointed out the

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R.C.Rev.Nos.74 & 75 of 2018

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shabby nature of the evidence tendered by RWs.1 and 2. RW1 feigned ignorance when put to him that his son was conducting another business, which in fact is his own. His version was that he did not know what his son was doing. Similarly, from the oral testimony of RW2, it has come out that he has another business. He has tried to explain away that allegation by stating that the business is in the name of his wife. Their oral testimonies are not enough to inspire confidence for entering a finding that they can depend on the income from the respective business alone for their livelihood. No document or independent evidence was brought in to render corroboration to their oral testimonies. In the circumstances, we are constrained to hold that the petitioners have failed to prove the first limb of the second proviso to Section 11(3) of the Act.

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PW1 has pointed out the availability of certain rooms in the locality for availing on rent. The Commissioners were appointed in these cases, but they were not asked to ascertain about the non-availability of any room in the locality.

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R.C.Rev.Nos.74 & 75 of 2018

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Thus, the evidence in this respect is also scanty. Therefore, we hold that the petitioners failed to discharge their burden as far as the second proviso to Section 11(3) of the Act is concerned.

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In short, the findings of the Appellate Authority resulting in ordering eviction of the petitioners under Section 11(3) of the Act are not liable to be interfered with on the ground of illegality, irregularity or impropriety by this Court invoking its jurisdiction under Section 20 of the Act. Therefore, these petitions are liable only to be dismissed. Hence, the revision petitions are dismissed.

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At the time of pronouncement of this order, the learned counsel for the petitioners has made a request to afford six month's time for vacating the premises pointing out the difficulty in finding out other rooms and making necessary arrangements for shifting their business.

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Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop rooms, subject to the

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R.C.Rev.Nos.74 & 75 of 2018

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following conditions:

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(i) The respondents-tenants in the Rent Control Petitions 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 rooms to the petitioner-landlord within six months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities;

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(ii) The respondents-tenants in the Rent Control Petitions 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;

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(iii) Needless to say, in the event of the respondents-tenants in the Rent Control Petitions failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of

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the petition schedule shop rooms will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/- P.G. AJITHKUMAR, JUDGE

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dkr

Basheer v. P.Ashraf Koya Thangal

Case brief

What is this about?

What did the court decide?

Basheer v. P.Ashraf Koya Thangal

Case brief

What is this about?

What did the court decide?

What the court decided

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