Babington v. Sudhakar Vaman Rao

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 30TH DAY OF JANUARY 2018 / 10TH MAGHA, 1939 **RCRev..No. 41 of 2018** AGAINST THE JUDGMENT IN RCA 21/2017 of RENT CONTROL APPELLATE AUTHORITY-III (ADDL. DISTRICT JUDGE-III), THIRUVANANTHAPURAM DATED 20-12-2017 AGAINST THE ORDER IN RCP 16/2016 of RENT CONTROL COURT, THIRUVANANTHAPURAM DATED 27-02-2017 ## **REVISION PETITIONER/APPELLANT/COUNTER PETITIONER** BABINGTON,AGED 58 YEARS, SON OF D. FERGAD, RESIDING AT SUJA BHAVAN, MULLUVILA P.O, VENPAKAL, NEYYATTINKARA, THIRUVANANTHAPURAM -695 123, NOW RESIDING AT T.C.NO.15/168, F5 STREET, ALTHARA NAGAR, VELLAYAMBALAM, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM -695 010. BY ADVS.SRI.M.RAMASWAMY PILLAI SMT.PREETHY R. NAIR ## **RESPONDENT/RESPONDENT/PETITIONER** : SUDHAKAR VAMAN RAO AGED 57 YEARS, RESIDING AT ULHAS, TC.1/2523, ENRA-16, EDASSERY NAGAR, OPPOSITE U.P.SCHOOL, KUMARAPURAM, THIRUVANANTHAPURAM -695 011. BY ADV. SRI.A.B..MOHANA KUMAR (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- R.C.R.No.41 of 2018 -------------------------------Dated 30[th] January, 2018 ## **ORDER** ## **Ravikumar, J.** The captioned revision petition is filed against the judgment in R.C.A.No.21 of 2017 on the files of the Additional Rent Control Appellate Authority-III (Additional District Judge-III), Thiruvananthapuram confirming the order passed in R.C.P.No.16 of 2016 of the Rent Control Court, Thiruvananthapuram under section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (for short `the Act'). The respondent herein was the petitioner in the R.C.P. and the respondent in the appeal. He filed the Rent Control Petition under Section 11(3) of the Act for own occupation. The contention of the learned counsel appearing for the revision petitioner-tenant is that the Rent Control Court as also the Rent Control Appellate Authority had failed to properly construe Exts.B1, B2 and A1 and had they been construed properly the courts below ought to have arrived at a finding that there was no landlord-tenant relationship between the revision petitioner and the respondent herein and there was only an agreement of lease and licence. Admittedly, there is concurrent findings by the R.C.R.No.41 OF 2018 2 Rent Control Court as also the Appellate Authority in favour of the landlord under Section 11(3) of the Act. When such a concurrent finding is there, there can be limited scope for interference in exercise of the revisional power under Section 20 of the Act. The position was settled by a Constitution Bench of the Hon'ble Apex Court in **Hindustan Petroleum Corporation Ltd.** v. **Dilbahar Singh (2014 (4) KLT 182 (SC)).** The Hon'ble Apex Court considered the question as to what should be the nature of the consideration and examination of the evidence by High Courts in revisional jurisdiction under the Rent Control Acts and held that it should be confined to find out whether the findings of facts recorded by the court/authority below is according to law and whether it suffers any error of law. In paragraph 45 thereof, the Hon'ble Apex Court held thus:- “45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent R.C.R.No.41 OF 2018 3 Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” 2. We have heard the learned counsel for the revision petitioner. In the light of the aforesaid decision we will consider whether any interference is called for. 3. It is the admitted case that the respondent herein moved the Rent Control Petition under Section 11(3) of the Act stating that the petition schedule building is required for own occupation. The bona fide need expressed by the landlord was found genuine by the courts below and it is such findings that culminated in the aforementioned orders. In the contextual situation, it is also relevant to refer to the pleadings of the revision petitioner-tenant before the Rent Control Court. Admittedly, he filed a counter statement wherein he had stated that a sale agreement was executed in respect of the petition schedule building and the land appurtenant thereto measuring 3 cents, for ₹ 10,30,000/-. Evidently, he would also admit therein that a temporary R.C.R.No.41 OF 2018 4 rent deed was executed whereby he had agreed to pay a sum of ₹3,000/- as monthly rent. It is also relevant to note that while being cross examined as CPW1 he would admit that the petition schedule building was taken on lease. His oral account was reproduced by the appellate court in its judgment and it is only apropos to reproduce the same. He stated thus:- ""പടട്ടിക കകടട്ിടം ഞഞാന്‍ വഞാടകയയയയ എടടത് ഞാണയ........... വഞാടക കരഞാറട്ടില്‍ പറയടന്നതട രരൂപ 10,000 ആണയ. 2013 ലഞാണയ കകടട്” ിടം വഞാടകയയയയഎടടത് യ. നട്ടിലവട്ടില്‍ വഞാടക കരഞാര്‍ ഒന്നടടം Csæ. Thus, it is evident that while being examined as CPW1 the revision petitioner had deposed in tune with his pleadings in the counter statement. In other words, he would state that he is a tenant. But, at the same time, he disputed the claim of the respondent-landlord that the rate of rent admitted between them was 10,000/- and according to₹ him, it was only 3,000/-. Be it 3,000/- or 10,000/-, it is an₹ ₹ ₹ indisputable fact that in the proceedings before the Rent Control Court the precise case of the revision petitioner was that he took the petition schedule building on lease. In such circumstances, the question is whether he is legally entitled to dispute the landlord-tenant relationship, rather, the title of the landlord/respondent. No elaborate discussion on that issue is required in the light of the statutory bar contained under Section 116 of the Evidence Act. In terms of the said provision when it is evident that the person concerned is a tenant he could not dispute R.C.R.No.41 OF 2018 5 the title of his landlord. The indisputable position obtained in this case, as referred hereinbefore, would reveal that, even according to the revision petitioner, the petition schedule building was taken by him on lease and the amount of rent payable was 3,000/-. Now, the learned₹ counsel appearing for the revision petitioner contended that it is the improper consideration of Exts.B1, B2 and A1 that resulted in a finding favourable to the landlord by the courts below, under section 11(3) of the Act. The learned counsel attempted to canvass the position that the relationship between the revision petitioner and the respondent was not that of a landlord-tenant and the agreement was only an agreement of lease and licence. But, as noticed hereinbefore, it is not disputed before us that the courts below have incorrectly considered the pleadings in the counter statement rather, the objection. Above all, there is no case for the revision petitioner that he had disputed the existence of a temporary rent deed. As noticed hereinbefore, in his pleadings as also the evidence adduced by him as CPW1 he had categorically admitted the fact that there was a temporary rent deed and going by the same he was paying 3,000/- as rent for the petition₹ schedule building. In such circumstances, the revision petitioner cannot be heard to contend that the courts below ought to have discarded his pleadings as also his evidence while being examined as CPW1 and R.C.R.No.41 OF 2018 6 ought to have considered the case solely based on the other documents. In **Messrs. Trojan and Co.** v. **RM. N. N. Nagappa Chettiar** reported in **AIR 1953 SC 235** the Hon'ble Apex Court held that no case could be decided on grounds or facts outside the pleadings. In the decision in **S.N.Ranade** v. **Union of India** reported in **AIR 1964 SC 24** the Hon'ble Apex Court held that no kind of evidence could be looked into on a plea which was never put forward. In the case on had the pleadings of the petitioner as also his evidence as CPW1 would go against the contention advanced by the petitioner. The long and short of the discussion is that we found no reason to hold that the courts below had committed an error warranting an interference in exercise of the revisional jurisdiction as regards their findings under Section 11(3) of the Act. The findings under Section 11(3) of the Act, in the said circumstances, can only be held as an outcome of a proper appreciation of the evidence on record. When that be so, in the light of the decision in **Hindustan Petroleum Corporation Ltd.'s** case (supra) there is absolutely no room for any interference in exercise of the revisional jurisdiction. In short, this revision petition is liable to fail. 4. When we are about to part with this judgment the learned counsel appearing for the revision petitioner submitted that R.C.R.No.41 OF 2018 7 some reasonable time may be granted to the revision petitioner to give vacant possession of the petition schedule building to the respondentlandlord. It is submitted by the learned counsel that the revision petitioner is residing there along with her family. In such circumstances, we are inclined to grant six months' time to the revision petitioner-tenant for giving the vacant possession of the petition schedule building to the respondent in terms of the impugned judgment provided, he files an affidavit carrying an undertaking before the Rent Control Court to the effect that he would surrender the vacant possession of the petition schedule building to the respondent-landlord on the date of completion of six months period from today. The grant of aforesaid period would be subject to the further conditions that he would deposit the arrears of rent at the admitted rate and would also continue to pay the rent at the admitted rate during the said period. Subject to the above, this revision petition is dismissed. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **MARY JOSEPH Judge** TKS