Saturday, 30 November 2019

How to appreciate evidence in eviction suit on ground of bonafide need?

The bona fides is a state of mind. What has to be considered is whether the alleged bona fide need of the petitioner is really natural, real, sincere, honest or just a mere desire or pretense. In the circumstances, we find it hard to get convinced that the need set up by the petitioner that he really wanted the 94 sq.ft. shop room in the possession of the respondent for running the stationery business or that the alleged need is conceived in good faith. The provisions of the Statute cannot be stretched to such an extent that every claim put forward as bona fide need is preordained to culminate in an order of eviction. The court is bound to rest its decision on the totality of circumstances and not to have recourse to a segmentwise, truncated adjudication insulating the plea of bona fide need from the rest of the circumstances as done by the Appellate Authority. We find that the evidence really adduced in the case expose the hollowness of his case of not having any vacant shop room in his possession in order to accomplish his bona fide need. The contention of the respondent that false reasons are drummed up to build up a case of bona fide need by the petitioner and his father just to eject him out of the premises appears true. Hence, for the reasons mentioned above, we hold that the order of the Appellate Authority is liable to be set aside and the finding of the Rent Control Court affirmed. 

IN THE HIGH COURT OF KERALA

R.C. Rev. No. 380 of 2004

Decided On: 29.06.2005

 Muhammed Basheer Vs. A. Mujib Rahman

Hon'ble Judges/Coram:
Hon'ble Mr. Justice R. Bhaskaran & Mr. Justice K.R. Udayabhanu




1. The spearhead of the contention of the revision petitioner is that the Appellate Authority has grossly misunderstood the words of the apex Court that the Judge of facts when assessing and ascertaining the bona fides of the need set up should place himself in the armchair of the landlord and ask the question to himself whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. His grievance is that the court has a trifle identified itself with the landlord instead of dispassionately examining the genuineness of the proposed need and resorted to a contrived justification to hand out an order to ease him out of the commercial space. At the outset, we would like to clarify that, really, when the Supreme Court in Shiv Sarup Gupta v. Dr. Mahesh Chandra Gupta [MANU/SC/0432/1999 : (1999) 6 SCC 222)] counseled as above, what is meant is that the judge should visualise himself in the place of the landlord amidst the real life factual background in which he is situated and then honestly endeavour to gauge the truth of the matter. What is contemplated or envisaged is a totally transparent, detached and objective assessment, absolutely disassociated, in order to rule out the possibility of any private motive, hidden agenda or pretense for eviction on the part of the landlord. The armchair analogy has no element of affinity with the landlord or prejudice against the tenant, and the same is intended to be a totally objective test to probe the state of mind of the landlord.

2. The revision petition is directed against the verdict of the Appellate Authority in arriving at a divergent finding resulting in an order of ejectment of the revision petitioner/tenant from the petition schedule shop room. (The parties are hereinafter mentioned as per their status in the RCP). The respondent has harshly censured the reasoning of the Appellate Authority alleging that the same is the result of a misconceived or rather distorted perception as to the position of law in the matter and hence liable to be set aside.

3. The petition schedule shop room is outstanding with the respondent since 1978 as per entrustment from the predecessor-in-interest of the petitioner. The petitioner was vested with ownership of the above shop room vide; a gift deed. It is the case of the petitioner that he is bona fide in need of the premises in order to start a stationery business, being an educated unemployed.

4. On the other hand, it is contended by the respondent that the bona fide need alleged is nothing, but a fake claim. The petitioner has no necessity at all to engage in stationery business in order to eke out his livelihood, as he is extremely affluent. A shopping complex has been constructed by his father adjacent to the building in which the petition schedule shop room is situated, investing a sum of around Rs. 50 lakhs. The shopping complex is having 30 rooms; and 7 shop rooms therein are lying vacant right now. Aside from the above set up, the petitioner is running an electrical items retail outlet in an adjacent building. Moreover, the petitioner and his family have several other buildings and some of which are vacant, in the town.

5. The Rent Control Court held that the case of the respondent that the petitioner is running an electric shop was not proved, for want of positive evidence. But the court, mainly on the basis of the report of the commissioner that certain rooms are lying vacant in the building and that the same belonged to the parents of the petitioner and as the petitioner has not furnished any convincing reasons as to why the above rooms could not be utilised for his purpose, held that the need put forward is not bona fide.

6. The appellate authority redeciding the matter reversed the finding under Section 11(3). It is the firm view of the Appellate Authority that the rejection of the case of the landlord amounted to a clear infraction of the provision.

7. It is the definite case of the revision petitioner that the evidence adduced in the matter would clearly indicate that the bonafide need set up by the petitioner to start a stationery shop in the petition schedule shop room is only an ill crafted ploy to drive him out of the premises. The refrain of the respondent throughout is that the petitioner belonged to an exceedingly rich family that owned shopping complexes and in possession of a number of unoccupied shop rooms in the very same town itself. The accent is on the contention that the attitude of the Appellate Authority in isolating the petition schedule room and another room already tenanted as the only shop rooms under the ownership of the petitioner and treating the buildings owed by his parents as not liable to be taken into consideration while assessing and ascertaining the bona fides of the need set up defies logic and amounts to a grievous impropriety. Legal entitlement of the landlord to seek eviction should not be adjudged in a superficial technical sense. Evidently, credibility is at a premium as to the bona fide of the need set up as he could have easily started that business in the adjacent shop rooms which are lying vacant and owned by his parents.

8. A commission was taken out at the instance of the respondent; and the commissioner inspected the place twice. By the time the commissioner inspected the property at the second instance, one of the vacant shop rooms in the line of four shop rooms situated in the petition schedule building was found demolished. Out of the four shop rooms in the above building, two are owned by the petitioner and two rooms adjacent on the eastern side of the petition schedule shop room belonged to the mother of the petitioner. It is not disputed that the other shop room owned by the petitioner is in the possession of a tenant. The commissioner has reported that all the four shop rooms are of equal measurement, i.e., 94 sq.ft. and facing the main road. It is the shop room on the eastern end owned by the mother of the petitioner that was demolished on the second inspection of the Commissioner. The ostensible reason for demolition is to provide a spacious passage to the building on the rear side which is owned by the mother of the petitioner. At the instance of the respondent, the Commissioner has noted that posters were seen pasted over the rolling shutters of the above rooms owned by his mother and the posters related to a conference dated two months back to the date of inspection. There were spider webs and dust collected inside the rooms. In the other adjacent room, it is the case of the petitioner that his father is running a cement retail outfit as an agency of Malabar Cements. The Commissioner has noted that a sign board of Malabar Cement Agency was displayed on the shop room. 25 bags of cement were seen inside the room as well as some old racks and empty toffee glass jars. The Commissioner has not in Ext.C2 plan the buildings owned by the petitioner's parents and the building in which the petition schedule shop room is situated. The Commissioner has recorded that on the rear side of the building in which the petition schedule shop room is situated and adjacent to it in the same extended compound, two buildings are in existence, in the name of the mother of the petitioner. Canara Bank is functioning in the building situated on the back side of the petition schedule premises. There is another construction adjacent to the above building and the same contains six shop rooms of 50 sq.ft. each. The Commissioner has also reported that nearby there is another building that belonged to the father of the petitioner and the Lord Krishna Bank is occupying in the first floor of the same. There are three shop rooms in the ground floor of the above building and the same are in occupation. It is seen from Ext.C1 report of the Commissioner that the father of the petitioner opened the shop rooms allegedly kept unoccupied, adjacent to the petition schedule premises and also the other shop room wherein according to the respondent, the petitioner is conducting the electrical shop, although, it is mentioned that the licence of the above shop stood in the name of the Ashraf. The above person was not present at the time of inspection by the Commissioner. According to the respondent, another room in a separate shop building is also lying vacant and the same is also owned by the father of the petitioner. The Commissioner has reported that the above shop room was also opened by the father of the petitioner and shown to him. The Commissioner has reported that the title to the above room stood in the name of the brother of the father of the petitioner.

9. P.W. 1, the petitioner has testified with respect to his imminent requirement that brooks no delay, to start a business. According to him, he has no other income except the rent received from the two shop rooms that are owned by him. He is a Commerce graduate, married and having a child. He has no other avocation. According to him, the building in which the Lord Krishna Bank is functioning belonged to his father and he has no right over the same. He has stated that the shop rooms in the ground floor of the above building are in the possession of the tenants. The building in which the Canara Bank is functioning belonged to his mother. The adjacent room on the eastern side of the petition schedule shop room is owned by his mother, but his father is conducting business in cement therein. He has admitted that his father is not an authorised dealer of the cement company. In the cross examination, it has been brought out that he is residing along with his parents. It is his specific case that there are no vacant rooms owned by him or by his parents. All the same, he has admitted in the cross examination that out of the six rooms in the building adjacent to the building wherein the Canara Bank is functioning, three rooms are vacant.

10. R.W. 1, the respondent has asserted that the petitioner is conducting a shop which deals in electrical items and batteries. According to him, in the building complex owned by the petitioner's father, the construction of six shop rooms are over and pillars have been erected for further constructing sixty shop rooms. He has asserted that the father of the petitioner is not conducting cement business at all in the shop rooms adjacent to the petition schedule premises. The room adjacent to the same, which was vacant, was deliberately demolished just to spite him. R.W. 1 has deposed that most of the buildings situated in the main road of the particular town is owned by three persons/families - one being the father of the petitioner.

11. It is on the basis of the above evidence that the Rent Control Court held that the need put forward by the petitioner did not appear to be bona fide. On the other hand, the Appellate Authority was of opinion that in the absence of positive evidence to establish that the petitioner is running the alleged business in electrical items, the bona fide need set up stood established. The court found nothing inconsistent or incredible in the version of P.W. 1 that he has no other income except the rent from the two tenanted shop rooms. As there is no case that the petitioner has got any other job, there is nothing to doubt the genuineness of the need set up. The court relied on the decisions of the Supreme Court reported in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta [MANU/SC/0432/1999 : (1999) 6 SCC 222] and Sarla Ahuja v. United India Insurance Co. Ltd. MANU/SC/0665/1998 : (1998) 8 SCC 119) and observed quoting from Shiv Sarup Gupta's case (ibid.) that Judge should evaluate the genuineness of the bona fide requirement raised by the landlord by placing himself in the armchair of the landlord and ask the question to himself, whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere and honest; and if the answer be in the positive, the need is bona fide. The Appellate Authority held that the petitioner is entitled to insist to have the shop room owned by him for conducting the proposed business. It was noted that even if there are buildings owned by his parents, the same cannot be taken up as a ground to deprive the petitioner of the requirement. Whether the petitioner's father is actually doing cement business in the adjacent shop room is a matter that need not even be looked into. It was observed that even in cases where the landlord himself is proved to have another building of his own, the same is not sufficient to negative the plea of bona fide need and that it is the discretion of the landlord and that the choice is his as he is the best judge of his requirement. The clause as to the special reasons envisaged under the first proviso to Section 11(3) is not attracted in the instant case as the other rooms are not owned by the petitioner himself. The petitioner is not bound to mention special reasons for not occupying the building of the other members of his family, it was held. Hence the objections' of the respondent in this regard were rejected at the threshold itself without any detailed consideration.

12. We find that it is admitted by P. W. 1 that he is residing along with his parents. He has no case that his parents did not permit him to occupy any of the rooms owned by them. On the other hand, his case is that there are no vacant rooms owned by his parents. Of course, the contention that the petitioner's father has constructed a multi storeyed shopping complex wherein construction of around sixty shop rooms have been completed is not proved as such. The Commissioner has only mentioned that three small shop rooms are vacant in one of the buildings owned by his mother. Nevertheless, at the first time of the inspection of the Commissioner, two shop rooms lying adjacent to the petition schedule shop room, it appears, were vacant, although an attempt was made to show that in one of the above rooms, the petitioner's father was conducting business in cement. According to the respondent, the cement bags were kept in the shop room only to be used for the construction of the building on the rear side, which appears to be convicting in the circumstances in the absence of any proof as to the functioning of a retail outlet of cement in the above room. According to the respondent, the board of Malabar Cement Agency was just exhibited on the place on the even of the inspection of the Commissioner, which is very much likely. It is seen that the RCP was filed in October, 1996 and notice demanding vacant possession was sent in May, 1996. The Commissioner inspected the property at first on 05-04-1997. It was subsequent to the first inspection on the above date that the other shop room adjacent to the room in which cement was found stocked was dismantled. Hence the evidence would indicate that atleast the above shop rooms were lying vacant when the petitioner wanted to start the alleged stationery business. Even P.W. 1, the petitioner has admitted that three shop rooms were lying vacant in the building situated adjacent also. Of course, strictly the above rooms are not owned by the petitioner, but by his parents. The petitioner and his wife and child are residing along with his parents as noted above he has no case that he wanted to be independent and did not want to occupy the premises owned by his parents or that the same are beyond his reach. The bona fides is a state of mind. What has to be considered is whether the alleged bona fide need of the petitioner is really natural, real, sincere, honest or just a mere desire or pretense. In the circumstances, we find it hard to get convinced that the need set up by the petitioner that he really wanted the 94 sq.ft. shop room in the possession of the respondent for running the stationery business or that the alleged need is conceived in good faith. The provisions of the Statute cannot be stretched to such an extent that every claim put forward as bona fide need is preordained to culminate in an order of eviction. The court is bound to rest its decision on the totality of circumstances and not to have recourse to a segmentwise, truncated adjudication insulating the plea of bona fide need from the rest of the circumstances as done by the Appellate Authority. We find that the evidence really adduced in the case expose the hollowness of his case of not having any vacant shop room in his possession in order to accomplish his bona fide need. The contention of the respondent that false reasons are drummed up to build up a case of bona fide need by the petitioner and his father just to eject him out of the premises appears true. Hence, for the reasons mentioned above, we hold that the order of the Appellate Authority is liable to be set aside and the finding of the Rent Control Court affirmed. We do so. All the same, we find that the rent of the petition schedule shop room has been fixed for about quarter of a century back and that the premises is situated in a prominent location, in the heart of the town. It appears to us that the rent is liable to be updated as per the present commercial set up. We find that it would be reasonable to refix the rent at Rs. 750/per month for the petition schedule shop room from this day onwards and direct the revision petitioner/tenant to pay the future rent at the above rate. The petitioner/landlord may if he desires, move the Rent Control Court, if the above enhancement is not sufficient.

The revision petition is allowed. The decision of the Rent Control Appellate Authority is set aside, the judgment of the Rent Control Court is affirmed.


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