Assad v. Sebastian

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & ``` ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 ``` ``` RCREV. NO. 151 OF 2021 ``` ``` AGAINST THE JUDGMENT DATED 27.03.2021 IN R.C.A.NO.42 OF 2016 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY- II, KOTTAYAM, CONFIRMING THE ORDER DATED 30.07.2016 IN R.C.P.NO.3 OF 2015 OF THE RENT CONTROL COURT, ETTUMANOOR. ``` ## **`REVISION PETITIONER:`** ``` ASSAD, AGED 51 YEARS S/O ASSIS, BUSINESS, KALARICKAL HOUSE, THAVA- LAKKUZHI, ETTUMANOOR, PROPRIETOR, ASHA LADYS CENTRE, CENTRAL JUNCTION, ETTUMANOOR, KOTTAYAM- 686 631. ``` ``` BY ADVS. M.V.THAMBAN R.REJI, THARA THAMBAN B.BIPIN, ARUN BOSE SUNEESH KUMAR R. ``` ## **`RESPONDENTS:`** ``` SEBASTIAN, S/O LATE JOSEPH, CHIRAYIL HOUSE, KI- ZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, ETTUMA- NOOR P.O.PIN-686 631, NOW RESIDING AT ABROAD, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, DR. ABEY MATHEW, AGED 37 YEARS, MEDICAL PRACTICTION- ER, PAMPACKAL HOUSE, PANAMPALAM KARA, ARPOOKARA EAST P.O.KOTTAYAM DISTRICT, PIN-686 008. ``` ``` BY ADV R.VENUGOPAL ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.C.Rev.No.151 of 2021 2 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is the respondent-tenant in R.C.O.P.No.3 of 2015 on the file of the Rent Control Court (Munsiff), Ettumanoor, a petition filed by the respondent herein-landlord, under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking an order of eviction of the tenant from the petition schedule shop room, on the ground of arrears of rent from January, 2010 onwards. Going by the averments in the Rent Control Petition, originally the monthly rent of the shop room was Rs.3,000/-. On 01.01.2012, by mutual agreement, the monthly rent was enhanced to Rs.5,000/- till 31.12.2012 and thereafter, at the rate of Rs.6,000/- per month. Despite the issuance of statutory notice, the tenant has defaulted payment of rent. The tenant filed objection to RCP, contending that the original owner of the petition schedule shop room is no more. The tenant is not aware of the present owner of the building. In the year 1998, the monthly rent fixed was Rs.500/- and during October, 2010, the power of attorney holder of the landlord came to the petition schedule shop room and demanded arrears of rent. As per his direction, the tenant R.C.Rev.No.151 of 2021 3 deposited Rs.5,000/- each on 23.11.2012 and 21.12.2012 towards the arrears of rent. The tenant has deposited arrears of rent till December, 2015 before the Rent Control Court and he was ready to deposit the rent for the subsequent period. 2. Before the Rent Control Court, the landlord was examined as PW1 and Exts.A1 to A6 were marked on his side. The tenant was examined as RW1 and Exts.B1 to B4 were marked on his side. After considering the pleadings and evidence on record, the Rent Control Court arrived at a finding that the landlord is entitled to get arrears of rent at the rate of Rs.5,000/- per month from 23.03.2012 to 31.12.2012 and thereafter at the rate of Rs.6,000/- per month and that, Rs.18,000/- paid towards arrears of rent is liable to be adjusted towards the said dues. Based on that finding, the Rent Control Court passed an order of eviction under Section 11(2)(b) of the Act, directing the tenant to vacate the petition schedule shop room within one month from the date of that order. In the said order it was made clear that, on deposit of arrears of rent with interest at the rate of 6% per annum and the cost of the litigation, within one month from the date of that order, the order of eviction will stand vacated under Section 11(2)(c) of R.C.Rev.No.151 of 2021 4 the Act. Feeling aggrieved, the tenant filed R.C.A.No.42 of 2016 before the Rent Control Appellate Authority (Additional District Judge-II), Kottayam, under Section 18(1)(b) of the Act. That appeal ended in dismissal by the judgment dated 27.03.2021, thereby confirming the order of eviction granted by the Rent Control Court. Challenging the order dated 30.07.2016 of the Rent Control Court in R.C.P.No.3 of 2015 and also the judgment dated 27.03.2021 of the Rent Control Appellate Authority in R.C.A.No.42 of 2016, the petitioner-tenant is before this Court in this Rent Control Revision filed under Section 20 of the Act. 3. On 15.12.2021, when this Rent Control Revision came up for admission, urgent notice by speed post was ordered to the respondent, returnable by 03.01.2022. 4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the respondent-landlord. 5. The learned counsel for the petitioner-tenant would contend that the finding of the Rent Control Court that the rent of the petition schedule shop room was Rs.5,000/- per month from 23.03.2012 to 31.12.2012 and thereafter, it was enhanced to Rs.6,000/- per month, is perverse and patently illegal, so also the reasoning of the Appellate Authority in the R.C.Rev.No.151 of 2021 5 judgment dated 27.03.2021, confirming the order of eviction passed by the Rent Control Court. Therefore, the findings of the authorities below warrant interference, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 6. Per contra, the learned counsel for respondentlandlord would contend that the reasoning of the authorities below in the impugned order/judgment is neither perverse nor patently illegal warranting any interference, invoking the revisional jurisdiction under Section 20 of the Act. The learned counsel would point out that, as rightly found in the judgment of the Appellate Authority, the specific case of the landlord, which is supported by the oral testimony of PW1, that the landlord and the tenant mutually enhanced the monthly rent to Rs.5,000/- from January, 2012 to December, 2012 and thereafter at the rate of Rs.6,000/- stands unchallenged in cross examination. 7. As per Section 11(1) of the Act, notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. Section 11(2) of the Act deals with eviction on the ground R.C.Rev.No.151 of 2021 6 of arrears of rent. As per Section 11(2)(a), a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. As per the proviso to Section 11(2)(b), an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per Section 11(2)(c), the order of the Rent Control Court directing the tenant to put the R.C.Rev.No.151 of 2021 7 landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order. 8. Before the Rent Control Court and also the Appellate Authority, the learned counsel for the landlord pointed out the specific averments in paragraph 2 of the RCP that the rent was revised by mutual oral agreement on 01.01.2012 fixing it at Rs.5,000/- upto the period ending on 31.12.2012 and thereafter, at Rs.6,000/- per month is not denied in the written objection. The said averments are reiterated in the chief affidavit of PW1 and there was no specific cross examination on these aspects. The Rent Control Court found that the evidence of PW1 that the landlord and the tenant mutually enhanced the rent to Rs.5,000/- from January, 2012 to December, 2012 and thereafter, to Rs.6,000/- per month is not challenged in cross examination. Even though the landlord claimed arrears of rent from January, 2010, the RCP was filed only on 23.03.2015. R.C.Rev.No.151 of 2021 8 Therefore, considering the period of limitation, the Rent Control Court found that the landlord is entitled to get arrears of rent at the rate of Rs.5,000/- per month from 23.03.2012 to 31.12.2012 and thereafter, at Rs.6,000/-per month and that Rs.18,000/- already paid towards arrears of rent is liable to be adjusted. It has come out in evidence that the tenant committed default in payment of rent and that, despite the receipt of Ext.A1 notice, he failed to pay the arrears of rent. Therefore, the authorities below concurrently found that the landlord is entitled to an order of eviction under Section 11(2) of the Act. The reasoning of the authorities below in the impugned order/judgment is neither perverse nor patently illegal. 9. 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 R.C.Rev.No.151 of 2021 9 itself as to the legality, regularity or 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. 10. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have reappreciated 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 reappreciating 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 R.C.Rev.No.151 of 2021 10 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. 11. 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. ## 12. 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 R.C.Rev.No.151 of 2021 11 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** it 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 R.C.Rev.No.151 of 2021 12 landlord-tenant did not exist. ## 13. 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** the Apex Court reiterated that even the wider language of Section 20 of 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** 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. 14. 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** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well R.C.Rev.No.151 of 2021 13 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. 15. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the authorities below, which is neither perverse nor patently illegal, warrants no interference, invoking 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. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **C.S. SUDHA JUDGE** yd R.C.Rev.No.151 of 2021 14 ## **`APPENDIX`** ## **`PETITIONERS’ ANNEXURES:`** |**`PETITIONERS’ `**|**`APPENDIX`**<br>**`ANNEXURES:`**| |---|---| |**`ANNEXURE I`**|**`CERTIFIED COPY OF THE ORDER DATED`**| ||**`20.09.2021 IN E.A.NO.2 OF 2021 IN E.P.NO.10`**| ||**`OF 2018 IN R.C.P.NO.3 OF 2015.`**| |**`ANNEXURE II`**|**`TRUE COPY OF THE EXECUTION PETITION AS`**| ||**`E.P.NO.41 OF 2021 ON THE FILE OF THE`**| ||**`MUNSIFF COURT, ETTUMANOOR.`**| |**`ANNEXURE III`**|**`CERTIFIED COPY OF THE ORDER DATED`**| ||**`23.10.2021 IN E.P.NO.41 OF 2021 IN`**| ||**`R.C.P.NO.3 OF 2015 OF MUNSIFF COURT,`**| ||**`ETTUMANOOR.`**| |**`ANNEXURE IV`**|**`CERTIFIED COPY OF THE DELIVERY KAI CHIT IN`**| ||**`E.P.NO.41 OF 2021 OF MUNISFF COURT,`**| ||**`ETTUMANOOR.`**| |**`ANNEXURE V`**|**`NOTARISED AFFIDAVIT BY SRI.E.M. SURESH,`**| ||**`ADVOCATE, ETTUMANOOR, COUNSEL OFR THE`**| ||**`PETITIONER HEREIN BEFORE THE COURT BELOW`**| ||**`DATED 10.11.2021.`**|