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2022 DIGILAW 872 (KER)

A. T. Joy v. P. K. Sreenivasan

2022-10-13

A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN

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ORDER : Shoba Annamma Eapen J. The tenants are the revision petitioners. They filed these revision petitions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”), challenging the common judgment dated 30.11.2018 of the Rent Control Appellate Authority (Additional District Judge-I), Ernakulam in R.C.A.Nos.5 and 6 of 2017. As per the said judgment, the Appellate Authority confirmed the orders of eviction granted by the III Additional Munsiff and Rent Control Court, Ernakulam, in favour of the respondent-landlord under Section 11(3) of the Act. 2. Rent control petitions were filed by the respondent/landlord under Sections 11(3) and 11(8) of the Act. I.A.No.6526/2016 was filed for joint trial of the rent control petitions and since the contentions of the petitioners in both the petitions were on similar lines, the petitions were tried jointly. The landlord is the owner of a two storeyed building by name 'Sooraj Building' at Mathrubhumi junction at Kaloor and the rent control petitions were filed for eviction of the two rooms on the ground floor, which are adjacent premises, for the bona fide need of the dependent son of the landlord to start an exclusive boutique shop for men and women. It was contended that his son, who was a qualified textile and garment designer, is having immense knowledge and expertise in designing and hence, can earn a good living if he starts business at a commercially important location. 3. The respondents-tenants in the respective rent control petitions raised similar objections. They contended that the petition schedule shop rooms, which form part of the building, are small and separated and are not sufficient to meet the requirements of a boutique shop and even admitting that, even if the need is bona fide, the landlord has rooms of his own in the same building and that it is totally unsuitable to start a business as proposed by the respondent. It was further contended that the tenants are depending mainly on the income derived from the business conducted in the tenanted premises for their livelihood and there are no suitable rooms available in the locality for them to carry on the same. 4. PWs 1 and 2 were examined on the side of the landlord and RWs 1 to 3 on the side of the tenants. 4. PWs 1 and 2 were examined on the side of the landlord and RWs 1 to 3 on the side of the tenants. Exts.A1 to A11 and C1 & C2 commission reports were received in evidence before the Rent Control Court. 5. The Rent Control Court tried the petitions jointly. Eviction under Section 11(8) was not much canvassed by the landlord and hence, after considering the evidence, prayer under S.11(8) was declined and eviction under Section 11(3) of the Act was allowed as per order dated 31.10.2016. The petitioners were directed to surrender vacant possession of the petition schedule shop rooms within a period of forty five days from the date of that order. R.C.A.No.5/2017 (against RCP No.135/2015) and R.C.A.No.6/2017 (against RCP No.136/2015) were the appeals preferred by the respective petitioners. The Rent Control Appellate Authority, Ernakulam, considered the entire matter in detail. The evidence was considered and re-appreciated. After such elaborate consideration, the Appellate Authority confirmed the findings of the Rent Control Court and the appeals were dismissed. 6. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondent. 7. The petitioner/tenant in R.C.R.No.163 of 2019 is conducting business of electroplating and gold covering in the petition schedule room. The petitioners/tenants in R.C.R.No.139 of 2019 are running a shoe shop in the petition schedule shop room. Both are adjacent rooms. The common contentions raised by the tenants are that the need projected by the landlord lacks bona fides. The landlord is in the habit of evicting tenants and after getting the vacant possession of the tenanted premises, the landlord leases out the building to other tenants and they further contended that the building is unsuitable for the need now put forth by the landlord. 8. The bona fide need of the landlord is to start a boutique for his son, who is qualified and has expertise in the fashion designing field. In order to prove his qualification and expertise, the landlord has produced Exts.A9 to A11. The landlord and his son were examined as PWs 1 and 2 respectively. During cross examination, the tenants could not controvert regarding the expertise and need projected by the landlord. PW1 has deposed that he had worked in Gurgaon and Bangalore and in companies like Kitex as fashion designer and also has worked in boutiques in Delhi, Bangalore and Ajman. The landlord and his son were examined as PWs 1 and 2 respectively. During cross examination, the tenants could not controvert regarding the expertise and need projected by the landlord. PW1 has deposed that he had worked in Gurgaon and Bangalore and in companies like Kitex as fashion designer and also has worked in boutiques in Delhi, Bangalore and Ajman. The landlord could establish the expertise and qualification of the son of the landlord, for whom the need is projected. In a decision reported in Deena Nath v. Pooran Lal [ (2001) 5 SCC 705 ], it was held that 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. The landlord has succeeded in proving that his need is bona fide for the requirement of the shop rooms for his son to start business. 9. The next contention of the tenants that the landlord is in the habit of getting evicted the tenants on similar grounds, was considered in detail by the courts below. In order to substantiate the claim, RW3 was examined. He deposed that he vacated the premises of the landlord within one month of demand and he further deposed that he was asked to vacate the premises for the son of the landlord to start a business in the premises, but the room was let out to another tenant. Other than the allegations of RW3, nothing was placed on record to prove the contentions. During cross examination, PW1 denied forceful eviction of RW3 alleging bona fide need of his son and asserted that RW3 vacated on his own. No other incidence than what is deposed by RW3 was adduced by the tenants. The courts below, on a detailed consideration, came to the conclusion that the tenants failed to prove the said contention. We do not find any reason to hold otherwise. 10. The learned counsel for the petitioners/tenants strenuously contended that the son of the landlord is not a dependent of the landlord. It may be true that the son of the landlord has other income, but, it is not the financial dependency, that matters. We do not find any reason to hold otherwise. 10. The learned counsel for the petitioners/tenants strenuously contended that the son of the landlord is not a dependent of the landlord. It may be true that the son of the landlord has other income, but, it is not the financial dependency, that matters. The son being the member of the family is dependent on his father for the shop rooms for conducting business. Dependency does not mean financial dependency, but dependency for the building which belong to the landlord. There must be sufficient pleading that they are dependent upon the landlord so that the tenant could disprove the dependency. It was thus held in Krishnan Thampi v. Sankaradas [ 2002 (1) KLT 930 ] and Ismail v. Kesavan [2004 KHC 543]. Hence, the requirement of his son, put forth by the landlord would certainly come within the ambit of Section 11(3) of the Act. 11. The further contention of the tenants is that they are entitled for the benefit of the first proviso to Section 11(3) of the Act. It is the definite case of the tenants that there are vacant rooms in the building, where the petition schedule property situates, and that the petitioner and his son have other buildings also in their possession. It is relevant to refer to Exts.C1 & C2 commission reports. The Advocate Commissioner has very clearly mentioned in Exts.C1 & C2 that the petitioner is not occupying or conducting any business in any of the shops in the building. The Commissioner was specifically asked to report whether there are vacant rooms in the larger building, it was mentioned in the report that there are no vacant rooms in the building though they are owned by the landlord. The tenants neither took any step to examine the commissioner and substantiate their contention nor adduced any other evidence to substantiate their claim that the petitioner and his son own any other building. 12. The son of the landlord, being an expert in fashion designing, wishes to start a business in the petition scheduled building, being rooms on the ground floor. For a business to flourish, like the one now put forth, it is always necessary to have the most easy accessible space. 12. The son of the landlord, being an expert in fashion designing, wishes to start a business in the petition scheduled building, being rooms on the ground floor. For a business to flourish, like the one now put forth, it is always necessary to have the most easy accessible space. The business in the upper floors will be considerably less when compared to the business conducted on the ground floor and it is for the landlord to decide as to whether he should start a business or where to start a business and it is not for the tenants to dictate to the landlord regarding the feasibility of the rooms. The tenants did not bring on record any evidence to show that the landlord is in possession of other suitable rooms or building for conducting business for his son. The protection under second proviso to Section 11(3) is not urged in the revision before this Court. The courts below have considered in detail all the contentions raised by the tenants and have concluded that the need put forth by the landlord is bona fide. Both the fact finding courts have concurred with the view and it is not possible for us to take an altogether different approach. We do not find any reason to interfere with the judgment and order passed by the courts below. 13. In Rukmini Amma Saradamma v. Kallyani Sulochana [ (1993) 1 SCC 499 ], it was 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. It was further held that, 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. 14. In Hindustan Petroleum Corpn. Ltd. 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 and held 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. 15. 15. In Thankamony Amma v. Omana Amma N. [ AIR 2019 SC 3803 : 2019 (4) KHC 412 ], 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. 16. 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, these Revision Petitions fail. We, accordingly, dismiss R.C.Rev.Nos.139/2019 and 163/2019. However, we grant time upto 30.06.2023 to the tenants to surrender the building on the following conditions; (a) The tenants shall file an undertaking 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, that they will surrender vacant possession of the petition schedule shop rooms to the petitioner landlord on or before 30.06.2023. (b) The tenants shall clear the entire arrears of rent, if any, within one month from the date of receipt of certified copy of this judgment and shall continue to pay rent till they vacate the building. (c) Needless to say, in the event of the respondents-tenants in the Rent Control Petition failing to comply with any of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop rooms will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction.