Abdul Jabbar v. Abdul Gafoor

RCRev.No.89 of 2024 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON** **MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946** **RCREV.NO.89 OF 2024** **AGAINST THE ORDER DATED 26.06.2023 IN RCP NO.10 OF 2021 OF THE RENT CONTROL COURT, MUNSIFF-MAGISTRATE'S COURT, PATTAMBI IN JUDGMENT DATED 22.01.2024 IN R.C.A.NO.14 OF 2023 OF THE COURT OF THE RENT CONTROL APPELLATE AUTHORITY, DISTRICT JUDGE, PALAKKAD ---------** ## **REVISION PETITIONER/S:** **ABDUL JABBAR, AGED 56 YEARS, S/O.PUZHANKARA ILLATH MUHAMMED KUNJI, KAIPPAMANGALAM AMSAM DESOM, KAPPAMANGALAM P.O., THRISSUR DISTRICT, PIN – 680681.** **BY ADVS. K.B.PRADEEP HARISANKAR R HRIDYALAKSHMI P.** ## **RESPONDENT/S:** **ABDUL GAFOOR, AGED 54 YEARS, S/O.KOTTAPPURATH HYDER, NETHIRIMANGALAM AMSAM DESAM, PATTAMBI P.O., PATTAMBI TALUK, PIN – 679303.** **BY ADVS. R.SREEHARI(K/895/2000) CAVEATOR SREEHARI R HAMZA A.V.(K/1588/2022) APARNA M.P.(K/001753/2024) VIGNESH S.(K/3697/2022) DHANYA C.R.(K/562/2005) P.B.KRISHNAN (SR.)(K/1193/1994)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev.No.89 of 2024 2 ## **ORDER** ## **Harisankar V. Menon, J.** This revision petition is presented by the respondenttenant in RCP No.10 of 2021 before the Rent Control Court (Munsiff-Magistrate's Court), Pattambi, and the appellant in RCA No.14 of 2023 before the Rent Control Appellate Authority (District Judge), Palakkad. The petition before the Rent Control Court is filed by the respondent-landlord herein, seeking eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the 'Act'). 2. By an order dated 26.6.2023, the Rent Control Court Pattambi, has come to the following findings: - i. As regards the claim of arrears of rent, the contentions raised by the respondent-tenant were not accepted, and the claim for eviction under Section 11(2)(b) of the Act was rejected. - ii. As regards the relief for eviction under Section 11(3) of the Act on account of _bona fide_ need, the claim is accepted and the eviction ordered as prayed for. - iii. As regards the claim on the basis of the second proviso to Section 11(3) of the Act, the Rent Control Court, Pattambi, found that the tenant is RCRev.No.89 of 2024 3 not entitled to the said claim. iv. The claim of the landlord under Section 11(4) of the Act was also considered and turned down. Thus, the Rent Control Court, Pattambi, has ordered eviction with respect to the provisions of Section 11(3) of the Act. 3. The petitioner-tenant filed RCA No.14 of 2023 against the above order before the Rent Control Appellate Authority. It was contended that the claim under Section 11(3) of the Act ought not have been allowed without examining the son of the landlord since the _bona fide_ need was with reference to the starting of a business by the landlord with his son. It was also contended that the landlord had other buildings, and therefore the eviction ought not have been ordered. The appellate authority, by an order dated 22.01.2024 has found that the building pointed out by the tenant is actually in the name of the wife of the landlord, purchased by her father, and situated at a different place than the place where the petition schedule building is situated. As regards the second building pointed out by the tenant, it was found to have been rented out three years before the evidence was tendered. Therefore, the benefit of the first proviso to Section 11(3) of the Act was not available. Secondly, as regards the contention regarding non-examination RCRev.No.89 of 2024 4 of the son of the landlord, in view of the qualification of the son, which was proved by the certificate issued, the non-examination of the son was held to be not fatal. Similarly, the benefits under the second proviso to Section 11(3) of the Act were not extended to the petitioner for want of evidence. 4. It is against the above orders, the present revision petition is filed under Section 20 of the Act. 5. We have heard the learned counsel for the petitionertenant and the senior counsel for the respondent-landlord. 6. It is under the provisions of Section 20 of the Act that this revision petition is presented before this Court by the petitioner-tenant. A reading of Section 20 of the Act would make it clear that this Court while considering a revision petition filed under Section 20 of the Act is not acting as a first or second court of appeal. It is only a revisional jurisdiction that is conferred upon this Court. Every order issued by the Rent Control Court and Rent Control Appellate Authority cannot be interfered by this Court. There cannot be any re-appreciation of evidence also. In this connection, the decision rendered by the Apex Court in **Rukmini Amma Saradamma V. Kallyani Sulochana and Others [(1993) 1 SCC 499]** is referred to. RCRev.No.89 of 2024 5 In the said judgment, at paragraph 20, the Apex Court has laid down the scope and ambit of Section 20 of the Act as follows: “20. We are afraid this approach of the High Court is wrong. 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 (Exts.C1 and C2 mahazar). In our considered view, 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 reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.” In the light of the above principles laid down by the Apex Court, the re-appreciation of the evidence as contended by the petitioner-tenant cannot be carried out in this revision petition. The above principles laid down by the Apex Court have been later approved by a constitution bench in the decision reported as **Hindustan Petroleum Corporation Limited V. Dilbahar Singh [(2014) 9 SCC 78]** and again in the decision rendered RCRev.No.89 of 2024 6 ## as **Thankamony Amma and Others v. Omana Amma N. and Others [AIR 2019 SC 3803]** . 7. On an elaborate consideration of the contentions raised with reference to the impugned orders, we find that the Rent Control Court (Munsiff-Magistrate's Court) as well as the Appellate Authority have taken into account the evidence placed before them properly. The _bona fide_ need pointed out by the landlord, with reference to the starting of a new business with his son, who is qualified, need not be doubted. Re-appreciation of the said evidence cannot be carried out in this revision petition. The contention with respect to the other buildings pointed out by the petitioner-tenant is also rightly turned down by the Rent Control Court, Pattambi, and the appellate authority with specific reference to the ownership and location of the alternate property as well as the availability of the same at the time when the _bona fide_ need is pointed out. The claim under the second proviso to Section 11(3) of the Act is also rightly rejected on the basis of the evidence on record. In such circumstances, we are of the considered opinion that there is no merit in this revision petition, and the same is only to be dismissed. RCRev.No.89 of 2024 7 8. The learned counsel for the petitioner-tenant would submit that the petitioner-tenant may be granted at least one year time to vacate the scheduled premises. 9. On the above submission made by the learned counsel for the petitioner-tenant, the learned counsel for the respondent-landlord would submit that the landlord has no objection in this Court granting a reasonable time to the tenant for surrendering vacant possession of the scheduled premises on conditions. 10. In such circumstances, this Rent Control Revision Petition is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and the impugned order of the Rent Control Court(Munsiff-Magistrate’s Court); however, by granting ten months' time to the petitionertenant, to surrender vacant possession of the scheduled premises to the respondent-landlord subject to the following conditions: - (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 scheduled RCRev.No.89 of 2024 8 premises to the petitioner-landlord within ten months from the date of this order and that, he shall not induct third parties into possession of the scheduled premises and further he shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/consent issued by the local authority/statutory authorities; - (ii) The respondent-tenant in the Rent Control Petition shall continue to pay rent for every succeeding months, without any default; - (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 scheduled premises will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **HARISANKAR V. MENON, JUDGE** ln