Babu Pulikandy v. Larimu Bi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021/10TH AGRAHAYANA,1943 R.C.REV.NO. 96 OF 2019** **AGAINST THE JUDGMENT DATED 31.05.2018 IN R.C.A.NO.42 OF 2013 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), THALASSERY AND THE ORDER DATED 17.12.2012 IN R.C.P.NO.242 OF 2012 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** **REVISION PETITIONER:** **BABU PULIKANDY, AGED 54 YEARS, S/O. KRISHNAN NAMBIAR, TAILORING SHOP, HAJI ROAD, UNDER SDPI OFFICE, P.O PAPPINISSERI, KANNUR DISTRICT-670 561.** **BY ADV C.LEENA** **RESPONDENT:** **LARIMU BI,** **AGED 73 YEARS, D/O. MUHAMMED KUNHI, LARIMU BAGH, CHIRAKKAL AMSOM DESOM, P.O VALAPATTANAM, KANNUR-670 010.** **BY ADV SRI.P.K.MOHAMED JAMEEL** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.96 of 2019 ## **O R D E R** ## Ajithkumar, J. This is a rent control revision petition filed by the tenant. The respondent filed R.C.P.No.242 of 2012 before the Rent Control Court (Principal Munsiff), Kannur seeking eviction of the petitioner under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was dismissed. The respondent-landlord preferred R.C.A. No.42 of 2013 before the Rent Control Appellate Authority (Additional District Judge-II), Thalassery challenging the order declining eviction under Section 11(3) alone. The Appellate Authority allowed the appeal and the petitioner was directed to surrender vacant possession of the petition schedule shop room within two months from the date of the judgment. The said judgment is under challenge in this revision petition. 2. In the building, to which the petition schedule shop room forms a part, there are three rooms owned by the respondent. Her daughter, Smt.Raziya, who is a dependent on her, wanted to start a textile business, making use of the said 3 R.C.Rev.No.96 of 2019 three rooms. Therefore, the respondent wanted vacant possession of the petition schedule shop room. 3. The claim for eviction was resisted by the petitioner contending that Smt.Raziya did not have any experience and three rooms in question are not suitable or convenient to accommodate such a business, and therefore, the need urged was not bonafide. The petitioner set forth the further case that he has been depending for his livelihood on the income derived from the business in the petition schedule shop room and no other room for availing on rent in the locality is available. She further alleged that the demand of the respondent to pay an exorbitant rate of rent was declined by the petitioner and because of that reason the eviction proceedings were initiated. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. The learned counsel appearing for the petitioner contended that Smt.Raziya, who was examined as PW1, did 4 R.C.Rev.No.96 of 2019 not have any experience in conducting business, and therefore, the need urged cannot be said to be genuine. It is further submitted that two other rooms in the building are in the possession of other tenants and even if all the rooms are available vacant, the same cannot be put to use for the projected purpose. 6. PW1 categorically deposed in court regarding the reason for her deciding to start the business. She remained jobless and the textile business being conducted by her husband at Kannur had to be closed, since that business became loss. During cross-examination, PW1 stated that all the three rooms would be made a hall for accommodating the textile business in a convenient way. The petitioner while examined as RW1 showed ignorance as to whether these rooms could be converted into a hall. Considering the said evidence and also the attending circumstances, the Appellate Authority came to the conclusion that the need projected by the landlord was genuine. 5 R.C.Rev.No.96 of 2019 7. The learned counsel appearing for the respondent submitted that out of the three rooms, one room is already ordered to be vacated and the eviction proceedings with respect to the other room is pending before the Appellate Authority. The learned counsel appearing for the petitioner did not contradict the said fact. Since the respondent has been seriously pursuing the eviction of the tenants in the other rooms, which along with the petition schedule shop room are proposed to be used for starting a textile shop by PW1, the contention of the petitioner that the other rooms are still in the possession of the tenants does not assume any importance. For that reason, the bonafides of the respondent cannot be doubted. 8. Whether or not Smt.Raziya, PW1, is a dependent of the landlord does not require a serious discussion. There is nothing in evidence to show that PW1 has any building or room of her own. Being the daughter, PW1, therefore is a dependent of her mother, the landlady, for the purpose of getting an accommodation for her to start the proposed business. 6 R.C.Rev.No.96 of 2019 9. The next submission of the learned counsel for the petitioner is that the daughter of the respondent does not have any experience in running the business. In **Mohinder Prasad Jain v. Manohar Lal Jain [(2006) 2 SCC 724]** the Apex Court considered the question whether experience is a precondition to claim eviction under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. Section 13 enables a landlord to claim eviction of the tenant from the tenanted shop room on the ground of his bona fide personal requirement. The Apex Court held that there is no law which provides for such a precondition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or preconditions without fulfillment whereof the landlord may not be able to start a business. But for running a business for which there prescribed no qualification, experience in the business is not a precondition. 10. In **George T. I. v. K.L.Stanley [2013 (4) KHC 543]** this Court considered that question. It was held that previous experience cannot be insisted to test the bonafide 7 R.C.Rev.No.96 of 2019 need of the landlord, as it is not a requirement for a person to start and conduct a business. Therefore the submission of the learned counsel for the petitioner in that regard cannot be accepted. 11. RW1 deposed before the court that he is depending on the income derived from the tailoring work in the petition schedule shop room. No document with respect to the income, which he has been deriving, is produced. Even if it is taken that she has no income to depend upon other than what is being derived from her tailoring shop in the petition schedule shop room, he failed to prove the second limb of the second proviso. He admitted in the box that he did not enquire about the availability of other shop rooms in the locality despite, it has been pointed out that many rooms are available in the locality. In view of the said evidence, the Appellate Authority concluded that the petitioner failed to prove the second limb of the second proviso. 8 R.C.Rev.No.96 of 2019 12. 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 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 subsection (1) shall be at its discretion. 13. 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 9 R.C.Rev.No.96 of 2019 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 itself to legality, regularity and propriety of the order impugned before it. 14. 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 10 R.C.Rev.No.96 of 2019 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. 15. 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** it was contended that, however wide the jurisdiction of the revisional court under 11 R.C.Rev.No.96 of 2019 Section 20 of the Act may be, it cannot have jurisdiction to reappreciate 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 reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 16. 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 12 R.C.Rev.No.96 of 2019 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. 17. 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 supported by evidence on record and could not even be said - to be perverse in any way. The High Court could not have re 13 R.C.Rev.No.96 of 2019 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. 18. In view of the above legal principles, it is not possible for us to re-appreciate the evidence, especially when the Appellate Authority, being the first appellate court, has considered and marshalled the entire evidence before reversing the findings of the Rent Control Court. We are of the view that the findings in the judgment of the Appellate Authority and its order directing eviction of the petitioner do not suffer from any illegality, irregularity or impropriety, warranting interference under Section 20 of the Act. Hence this Revision Petition fails. We dismiss it. 19. The learned counsel for the petitioner has made a request to allow one year time for vacating the building pointing out the difficulty in finding out another building and making necessary arrangements for shifting. The learned counsel for the respondent would submit that a period of eight months for surrendering the room is reasonable. 14 R.C.Rev.No.96 of 2019 20. Having considered all the aspects, we deem it appropriate to grant eight months time to surrender vacant possession of the petition schedule building, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court 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 petition schedule building to the petitioner-landlady within eight months from the date of this order and that, he shall not induct third parties into possession of the petition schedule building; - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, 15 ## R.C.Rev.No.96 of 2019 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 petition schedule building will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr