Anwar Ali v. Achambattu Shareef and others (R.C.R.75/2015 & R.C.R.5/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **RCREV. NO. 75 OF 2015** **AGAINST THE JUDGMENT DATED 28.01.2015 IN RCA NO.6/2014 OF RCAA, ADDITIONAL DISTRICT COURT, TIRUR CONCURRING WITH THE COMMON ORDER DATED 20.01.2014 IN RCP NO.9/2011 OF RENT CONTROL (MUNSIFF) COURT, PARAPPANANGADI.** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** ANWAR ALI AGED 47 YEARS S/O.KONIYATH MOIDEENKUTTY HAJI, K.M.STORES, NAHAS COMPLEX, BEACH ROAD JUNCTION, PARAPPANANGADI P.O. BY ADVS. SRI.ALAN PAPALI SRI.ANTONY ROBERT DIAS SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. KUM.P.K.RESHMA KALARICKAL SRI.SOJAN MICHEAL SRI.J.VIMAL ## **RESPONDENTS/APPELLANTS/PETITIONERS:** 1 ACHAMBATTU SHAREEF AGED 48 YEARS S/O.KIZHAKKINIYAKATH KUNHIKOYAMUTTY HAJI, BANGLAVIL HOUSE, PUTHARIKKAL, P.O.PARAPPANANGADI-676 303, MALAPPURAM DISTRICT. 2 SALEEMA SHAREEF AGED 42 YEARS, W/O.ACHAMBATTU SHAREEF BABU, DO. DO. 3 SHAROOQ SHAREEF AGED 20 YEARS, S/O.ACHAMBATTU SHAREEF BABU, DO. DO. 4 SHIHAL SHAREEF S/O.ACHAMBATTU SHAREEF BABU, (MINOR), REP. BY FATHER 1ST APPELLANT/1ST RESPONDENT,. (NEDIYA AMSOM DESOM, P.O.PARAPPANANGADI, TIRURANGADI TALUK). BY ADV SRI.G.SREEKUMAR (CHELUR) ,CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.10.2022, ALONG WITH RCRev..5/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.No.75 of 2015 and 5 of 2019 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **& THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **RCREV. NO. 5 OF 2019** **AGAINST THE JUDGMENT DATED 28.01.2015 IN RCA NO.6 OF 2014 OF THE RCAA, ADDITIONAL DISTRICT COURT, TIRUR CONCURRING WITH THE COMMON ORDER IN RCP NO.9/2011 DATED 20.01.2014 OF RCC, MUNSIFF COURT, PARAPPANANGADI.** ## **REVISION PETITIONERS/APPELLANTS/PETITIONERS:** 1 ACHAMBATTU SHAREEF BABU AGED 53 YEARS, S/O KIZHAKKINIYAKATH KUNHIKYAMKUTTY HAJI, NEDUVA AMSOM DESOM, P.O PARAPANANGADI, THIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676 303. 2 SALEEMA SHAREEF AGED 47 YEARS, W/O ACHAMBATTU SHAREEF BABU, NEDUVA AMSOM DESOM, P.O PARAPANANGADI, THIRURANGADI TALUK, MALAPPURAM DISTRICT-676 303. 3 SHAROOQ SHAREEF AGED 25 YEARS, S/O ACHAMBATTU SHAREEF BABU, NEDUVA AMSOM DESOM, P.O PARAPANANGADI, THIRURANGADI TALUK, MALAPPURAM DISTRICT-676 303. 4 SHIHAL SHAREEF AGED 18 YEARS, S/O ACHAMBATTU SHAREEF BABU, NEDUVA AMSOM DESOM, P.O PARAPANANGADI, THIRURANGADI TALUK, MALAPPURAM DISTRICT-676 303. BY ADV G.SREEKUMAR (CHELUR) ## **RESPONDENT/RESPONDENT/RESPONDENT:** ANWAR ALI AGED 49 YEARS, S/O KONIYATH MOIDEENKUTTY HAJI, K.M. STORES, NAHAS COMPLEX, BEACH ROAD JUNCTION, PARAPANANGADI, THIRURANGADI TALUK, MALAPPURAM DISTRICT-676 303. BY ADVS. GILBERT GEORGE CORREYA NISHIL.P.S. GEORGIE JOHNY ANITA ANN GEORGE **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21.10.2022, ALONG WITH RCRev..75/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.R.No.75 of 2015 and 5 of 2019 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **R.C.R.No.75 of 2015 and R.C.R.No. 5 of 2019** **------------------------------------------Dated this the 21[st] day of October, 2022** ## **O R D E R** ## **C.S.Sudha, J.** Both these R.C.Rs. have been filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act). R.C.R.No. 75/2015, has been filed by the respondent/tenant in R.C.A No.06/2014 on the file of the Rent Control Appellate Authority (RCAA), Tirur against the order dated 20/01/2014 in R.C.P.No.9/2011 on the file of the Rent Control Court (RCC), Parappanangadi. R.C.R.No.5/2019 has been filed by the petitioners/landlords against the concurrent findings of the court below dismissing the claim for eviction under Section 11(4)(ii). The parties in these revisions will be referred to as described in R.C.P. 2. The petitioners/landlords moved the RCC, Parappanangadi seeking eviction under Section 11(3) and 11(4)(ii) of the Act. The first petitioner has no job or employment and hence he requires the petition schedule rooms _bona fide_ for starting a business in furniture. He has no other buildings in his possession for running the proposed business. The respondent is not entitled to the benefit of the R.C.R.No.75 of 2015 and 5 of 2019 4 second proviso. It is also alleged that the dividing wall between two rooms out of the three rooms let out to the respondent has been demolished and the rooms converted to a single room. This according to the petitioners has destroyed or reduced its value and utility materially and permanently. Hence eviction was sought under Section 11(3) and 11(4)(ii) of the Act. 3. The respondent filed counter denying the need alleged. According to him, the need alleged is just a pretext for eviction. The respondent also claimed the benefit of the first and the second proviso to Sub section (3) to Section 11of the Act. He also contended that, it was much before the petitioners had purchased the tenanted premises, he had been inducted into the rooms as a tenant by its prior owner. It was with the consent and permission of the prior owner, the wall in between the two rooms had been removed and converted to a single room. This removal of the intervening wall has not in any way destroyed or reduced its value or utility materially and permanently as alleged by the petitioners. Therefore, he contended that the petitioners are not entitled to an order of eviction on either of the grounds prayed for. 4. The RCC rejected both the grounds for eviction and dismissed the R.C.P. In the appeal filed by the petitioners, the RCAA reversed the finding under Section 11(3) and confirmed the finding of the RCC rejecting the claim for eviction under Section 11(4)(ii). Aggrieved, both the petitioners as well as the respondent R.C.R.No.75 of 2015 and 5 of 2019 5 have come up in revision. 5. The question to be considered is whether there is any illegality or irregularity in the findings of the courts below. 6. Heard Ms.Anita Ann George, the learned counsel for the petitioners and Sri. G.Sreekumar, the learned counsel for the respondents. 7. As per Section 20 of the Act, 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 the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and it may pass such order in reference thereto as it thinks fit. It is true that this Court under Section 20 is not expected to reappraise the evidence produced by the parties in exercise of its revisional jurisdiction and the limited question that falls for its consideration is whether the procedure followed by the RCC and the Appellate Authority is illegal, irregular or improper. However, it is well settled that the powers of S.20 are wider than that is conferred under S.115 CPC. The nature and scope of the powers of revision under S.20 has been considered by the Apex Court in the decision in **Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 KHC 762: 2002 (6) SCC 1** . It has been held that when the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Subject to limitations placed on the exercise R.C.R.No.75 of 2015 and 5 of 2019 6 of revisional jurisdiction, it remains a part of the general appellate jurisdiction of a superior Court in a wider and larger sense. It has been further held that, a jurisdiction to examine the propriety of the order or decision carries with it the same jurisdiction as the original authority to come to a different conclusion on the said set of facts. If any other view is taken, the expression "propriety" would lose its significance. 8. We will first deal with the ground for eviction claimed under Section 11(3) of the Act. As referred to earlier, the need alleged in the R.C.P is that the first petitioner has no job or business of his own and so he _bona fide_ requires the tenanted premises for starting a business in furniture. There is no case in the R.C.P that the first petitioner has no source(s) of income whatsoever and hence he wants to start a business, as argued on behalf of the respondent. The respondent has no case that the first petitioner has any other job or employment. The first petitioner may have rental income, but that is not a ground to reject the claim put forward under Section 11(3). It is not necessary for the first petitioner to show that the need alleged is a dire need or that the landlord is on the verge of starvation or poverty to succeed under Section 11(3). One another factor which weighed in the mind of the RCC in doubting the _bona fides_ of the need alleged is the failure of the petitioners to produce any evidence to show that the first petitioner has any experience in the proposed business. Whether the landlord has experience in the proposed business or not is the lookout of the petitioners and whether the first petitioner would succeed in his business or not is not R.C.R.No.75 of 2015 and 5 of 2019 7 a factor to be taken into account to disbelieve or reject the _bona fides_ of the landlord. The RCC also concluded that it is a mere desire of the first petitioner without referring to any evidence on the basis of which the said conclusion has been arrived at. Therefore, the RCAA was right in reversing the finding of the RCC that the need alleged is not _bona fide_ . Hence, no interference into the finding of the RCAA on that point is called for. 9. The respondent claims the benefit of the first and second provisos to Section 11(3). However, the same is not seen considered by the RCC. Though the respondent contends that the petitioners are in possession of other rooms suitable for the need proposed, no material or evidence has come on record to establish the same. As far as the second proviso is concerned, the burden is on the respondent-tenant to prove both the limbs of the proviso, which are conjunctive and not disjunctive. The advocate commissioner has reported that there are several vacant rooms in the locality. According to the respondent, the advocate commissioner had visited the site on a Friday afternoon and hence the reason why he found several shop rooms closed, as most of the tenants had gone to the mosque. If so, the respondent ought to have examined the advocate commissioner to discredit the report or should have examined the tenants of the building which are reported to be vacant by the advocate commissioner. That has not been done by the respondent. It is true that the RCAA without any discussion, in a single sentence has concluded that the respondent is not R.C.R.No.75 of 2015 and 5 of 2019 8 entitled to the benefit of the second proviso. That certainly was not the correct procedure. There ought to have been a discussion as to why the respondent is not entitled to the benefit of the said proviso. Be that as it may, evidence on record, that is, the commission report shows the existence of other vacant rooms in the locality. The respondent has also not adduced any evidence to show that the income from the business being conducted in the tenanted premises is his sole means of livelihood. That being the position, the conclusion of the RCAA, that the respondent is not entitled to the benefit of the second proviso does not call for an interference. 10. The petitioners have challenged the concurrent findings of the court below on the ground for eviction sought under Section 11(4)(ii). It is no doubt true that this Court in revision cannot interfere with the findings of fact recorded by the courts below or conduct a re-appreciation of evidence. But if the approach of the courts below are erroneous and the courts below have misdirected itself in the appreciation of evidence, this Court would certainly be justified in interfering with the findings of the courts below. In the case on hand, the specific case pleaded in the R.C.P by the petitioners is that three separate rooms have been let out to the respondent by way of three lease agreements, that is, one room by lease dated 31/07/2008 and two rooms as per two lease deeds dated 16/08/2008. This allegation, or this case put forward by the petitioners in the R.C.P is no where seen disputed by the respondent in the counter filed or in the evidence let in. The fact that the wall R.C.R.No.75 of 2015 and 5 of 2019 9 separating two rooms out of the three rooms let out to the respondent has been removed is admitted. The case of the respondent is that it was much before the entrustment in the year 2008 by the petitioners that this wall had been removed. According to him, the intervening wall had been removed with the permission and consent of the previous landlord and therefore, at this point of time, the petitioners cannot complain that it has been removed after the entrustment in the year 2008, resulting in destruction of its value and utility. Though the respondent has taken up the contention that the wall had been removed with the permission and consent of the prior owner, absolutely no evidence has been let in to substantiate the same. He has also not given an explanation for not examining the previous owner, who is alleged to have given him the permission to remove the wall. If, it was actually two rooms only that had been rent out to the respondent, then there was no reason or necessity to execute three lease deeds, which have been specifically referred to in the R.C.P and which have not been denied by the respondent. Therefore, in these circumstances, the contention of the respondent that even when the rooms were let out him by the petitioners, there was no intervening wall between room number 1 and room number 3 can only be held to have been not substantiated. 11. Now coming to the question whether the removal of the wall has destroyed or reduced its value or utility materially and permanently. The Apex Court in **Vipin Kumar v. Roshan Lal Anand, 1993 (2) SCC 614** has held that the R.C.R.No.75 of 2015 and 5 of 2019 10 diminution in value and utility of the building will have to be assessed from the point of view of the landlord and not that of the tenant. Further, a material alteration made by the tenant unauthorizedly may be advantageous to the tenant or several others who may occupy the building for various purposes. But if the landlord wanted to utilise or retain the same in its original form, his complaint regarding alteration of the building is valid enough for establishing the ground under Section 11(4)(ii) ( **Iritti Cooperative Hospital Society v. Damodaran, 2010 (3) KLT 823** ). In **Ayissabeevi v. Aboobaker, 1971 KLT 273** , it has been held that an act resulting in obliteration of the boundary line of the demised property tagging on the same with the adjoining property through a medium of a corridor would amount to an act materially and permanently reducing its utility and value of the demised premises. 12. It has come out from the records that after removing the intervening wall, an iron beam has been put up to give necessary support to the roof. This itself would probabilise the case put forward that the removal of the wall would certainly affect the stability of the building. That being the position, the ground under Section 11(4)(ii) of the Act has been made out and so the concurrent findings of the courts below are clearly erroneous and so we find that interference into the findings is called for. In the result, R.C.R.No.75/2015 is dismissed and R.C.R.No.5/2019 is allowed . The judgment of the RCAA rejecting the ground under Section 11(4)(ii) is R.C.R.No.75 of 2015 and 5 of 2019 11 reversed and eviction is ordered under the said ground also in addition to the ground under Section 11(3). Considering the facts and circumstances of the case, the respondent is given six months' time from this date to surrender vacant possession of the rooms to the revision petitioner on condition that he files an undertaking before the RCC on or before **21/12/2022** to vacate the tenanted premises within a period of six months' from today and also on condition that the respondent pays the arrears of rent if any, on or before 21/12/2022 and also continue to pay the monthly rent on or before the 10[th] day of every succeeding month till he vacates the tenanted premises. Interlocutory applications, if any pending, shall stand closed. **Sd/P.B.SURESH KUMAR JUDGE Sd/C.S.SUDHA JUDGE** Jms/18.10