Abdurahiman Kutty E. @ Athruman Kutty v. A.K. Shahul Hameed

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ``` ``` R.C.REV.NO.111 OF 2022 ``` ``` THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT-I), KOZHIKODE / I ADDITIONAL MACT, KOZHIKODE ARISING OUT OF THE ORDER DATED 29.06.2019 IN RCP NO.11 OF 2017 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF COURT-I) KOZHIKODE REVISION PETITIONER/APPELLANT/PETITIONER: ``` ``` ABDURAHIMAN KUTTY E. @ ATHRUMAN KUTTY, AGED 66 YEARS, S/O. BAVUTTY HAJI, ERERAKKAL HOUSE, P.O.KODUVALLY, KODUVALLY AMSOM AND DESOM, THAMARASSERY TALUK, KOZHIKODE DISTRICT - 673 572. ``` ``` BY ADVS. ``` ``` P.B.KRISHNAN; P.B.SUBRAMANYAN; SABU GEORGE MANU VYASAN PETER ABRAHAM BABU KALLIVAYALIL ``` ## **`RESPONDENT/RESPONDENT/RESPONDENT:`** ``` A.K.SHAHUL HAMEED, AGED 52 S/O. PYINIL AHAMMED KUTTY HAJI, OTHAYOTH POYIL HOUSE, P.O. KIZHAKKOTH, KIZHAKKOTH AMSOM AND DESOM, THAMARASSERY TALUK, KOZHIKODE DISTRICT - 673 572. BY ADVS. FIROZ K.M.; M.SHAJNA(K/1017/2006) ``` ``` FOLLOWING: ``` 2 R.C.R No.111 of 2022 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner herein filed R.C.P.No.11 of 2017 on the file of the Rent Control Court (Principal Munsiff-I), Kozhikode, invoking the provisions under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the respondent herein from the petition schedule premises. The averments in that Rent Control Petition are to the effect that the petitioner permitted the respondent to use the petition schedule premises for a period of 11 months, as per a licence agreement dated 12.11.2015. The period of licence agreement expired on 12.10.2016. As per the terms of the licence agreement, the respondent is liable to pay a monthly licence fee of Rs.6,000/-. The petitioner required the respondent to vacate the premises and to remove the articles, by issuing notice dated 25.10.2016. The respondent was ready to vacate the premises on receipt of the notice and the key was handed over to the petitioner. Accordingly, the petitioner commenced renovation works for conducting a new business by his dependent sons, namely, Muhammed and Shihabudeen, in that premises. However, the respondent made a forcible entry into the premises with the help of local police and some persons associated with Vyapari Vyavasai Ekopana Samithi and thereafter, filed O.S.No.576 of 2016 before the 3 R.C.R No.111 of 2022 Principal Munsiff Court-I, Kozhikode, claiming to be a tenant and seeking injunction against forcible dispossession. According to the petitioner, though the respondent was not granted any tenancy right, the petitioner decided to treat him as a tenant, in view of the contentions raised in O.S.No.576 of 2016. Accordingly, the petitioner filed R.C.P.No.11 of 2017 before the Rent Control Court, seeking eviction of the respondent from the petition schedule premises, since his dependent sons require that premises for starting business in fancy and stationery items. 2. Before the Rent Control Court, the respondent entered appearance and filed counter. On the side of the petitioner, Exts.A1 to A4 were marked and his son was examined as PW1. On the side of the respondent, Exts.B1 to B7 were marked and RWs 1 and 2 were examined. After considering the pleadings and evidence on record, the Rent Control Court arrived at a conclusion that there is no landlord-tenant relationship between the petitioner and the respondent and as such, the Rent Control Petition is not maintainable and the same was accordingly dismissed. 3. Challenging the order dated 29.06.2019 of the Rent Control Court in R.C.P.No.11 of 2017, the petitioner filed R.C.A.No.123 of 2019 before the Rent Control Appellate Authority (Additional District Judge-I), Kozhikode, invoking the provisions 4 R.C.R No.111 of 2022 under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 17.12.2021, whereby the order of the Rent Control Court stands confirmed. 4. Feeling aggrieved by the order of the Rent Control Court and the judgment of the Appellate Authority, the petitioner is before this Court in this Rent Control Revision, invoking the provisions under Section 20 of the Act. 5. On 04.07.2022, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued notice to the respondent, returnable within four weeks. On 24.01.2023, this Court called for the trial court records. 6. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 7. The issue that requires consideration in this Rent Control Revision is as to whether any interference is warranted on the order of the Rent Control Court and the judgment of the Appellate Authority, whereby R.C.P.No.11 of 2017 filed by the petitioner stands dismissed on the ground of maintainability. 8. Section 11 of the Kerala Buildings (Lease and Rent Control) Act deals with eviction of tenants. 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 5 R.C.R No.111 of 2022 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 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. 9. In the instant case, the Rent Control Court as well as the Appellate Authority concurrently found that there is no landlordtenant relationship between the petitioner and the respondent and as such the Rent Control Petition is not maintainable in law. The reasoning of the Rent Control Court as well as the Appellate Authority on the above issue is supported by the law laid down in the decisions referred to in the impugned order/judgment. ## 10. In **Manjoli Purushothaman Vs. Mullaveettil Abu** **[2016:KER:946]** , on similar facts, a Division Bench of this Court 6 R.C.R No.111 of 2022 considered the maintainability of a Rent Control Petition, wherein the petitioner pleaded that the document executed between the parties is only a licence. However, in order to avoid contentious issues and the delay in disposal of the case, is accepting the transaction to be a lease. After considering the rival contentions, the Division Bench held that such a stand taken by the petitioner in the Rent Control Petition cannot and does not change the character of the transaction. That was entered into between the parties. Paragraph 7 of that judgment reads thus; “7. ……… The petitioner has no case either in his pleading or in his evidence that the real intention of the parties while executing Ext.Al document was in fact to bring a lease into existence. On the contrary, the case of the revision petitioner throughout is that, the transaction was only a licence. What he has pleaded in paragraph 5 of the Rent Control Petition is only that, in order to avoid contentions issues and to avoid delay, he was accepting the transaction to be a lease. Therefore, this is a case where, despite the intention of the parties being to bring a licence agreement into existence, the landlord has proceeded to accept the transaction to be a lease to avoid unnecessary contentions and to avoid delay. The said stand cannot and does not change the character of the transaction that was entered into between the parties.’’ 11. In the instant case, the specific case of the petitioner is that the respondent was permitted to occupy the petition schedule premises on the basis of a licence agreement. During cross 7 R.C.R No.111 of 2022 examination, PW1 reiterated the case of the petitioner and made it clear that he does not admit a tenancy in respect of the petition schedule premises and the amount that is being collected is only a licence fee. In view of the contentions raised by the respondent in O.S.No.576 of 2016 before the Principal Munsiff Court-I, Kozhikode, the petitioner decided to treat the respondent as a tenant, though he was not granted any tenancy right. 12. The Rent Control Court as well as the Appellate Authority, after considering the pleadings and evidence on record, arrived at a conclusion that there is no landlord-tenant relationship between the petitioner and the respondent and as such R.C.P.No.11 of 2017 is not maintainable in law. The said reasoning of the Rent Control Court as well as the Appellate Authority cannot be said to be either perverse or patently illegal. 13. Section 20 of the Kerala Buildings (Lease and Rent Control) Act 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 8 R.C.R No.111 of 2022 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 sub-section (1) shall be in its discretion. ## 14. In **Rukmini Amma Saradamma v. Kallyani Sulochana** **[(1993) 1 SCC 499]** , the scope of revisional powers of the High Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated 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 9 R.C.R No.111 of 2022 itself to legality, regularity and propriety of the order impugned before it. ## 15. In **T. Sivasubramaniam v. Kasinath Pujari [(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. ## 16. 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 Saradamma [(1993) 1 SCC 499]** it 10 R.C.R No.111 of 2022 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. 17. 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 Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma [(1993) 1 SCC 499]** the Apex Court reiterated that even the wider language of Section 20 of 11 ## R.C.R No.111 of 2022 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 [(1993) 1 SCC 499]** 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. 18. 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 [(1993) 1 SCC 499]** , **Ubaiba [(1999) 5 SCC 645]** and **Hindustan Petroleum Corporation Limited [(2014) 9 SCC 78]** 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 the High Court while exercising revisional jurisdiction. 19. In **Abdul Salam v. Sebastian [2013 (4) KLT 592]** , a Division Bench of this Court held that, even though in the decisions of the Apex Court and this Court, it has been held that, in revisional 12 ## R.C.R No.111 of 2022 jurisdiction there cannot be a re-appreciation of evidence in order to come to a different conclusion on the same set of facts, it has been held in those decisions itself that, if the view taken is perverse and the statutory scheme has not been kept in mind and if it requires correction, then Court can re-appreciate the evidence. When the argument is that, the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the pleadings and evidence. ## 20. In **Regy V. Edthil v. Hubert Leslie D'Cruz [2016 (2)** **KLJ 164]** , a Division Bench of this Court held that, the High Court (in revision) is obliged to test the order of the Rent Control Court on the touch stone of whether it is according to law. For that limited purpose, it may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Control Court is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. 21. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Rent Control Court as well as the Appellate Authority that R.C.P.No.11 of 2017 filed by the petitioner, against the respondent, 13 R.C.R No.111 of 2022 seeking an order of eviction under Section 11(3) of the Act is not maintainable in law is neither perverse nor patently illegal. It cannot also be said that while arriving at such a conclusion, the Rent Control Court or the Appellate Authority has committed a manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. In the result, this Rent Control Revision fails and the same is accordingly, dismissed. However, without prejudice to the right of the petitioner to approach the competent civil court seeking appropriate relief against the respondent. **Sd/-** **Sd/G. GIRISH, JUDGE** vgd