Babulal v. Kamalu and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944** **RCREV. NO. 365 OF 2019 AGAINST THE JUDGMENT DTD 21/3/2016 IN RCP 5/2014 OF RENT CONTROL COURT, ALUVA AGAINST THE ORDER DTD 4/7/2019 IN RCA 17/2018 OF RCAA, NORTH PARAVUR** ## **REVISION PETITIONER/RESPONDENT/PETITIONER:** **BABULAL AGED 37 YEARS** **S/O. LATE BABU, KEZHUPPILLY HOUSE, ANGAMALY VILLAGE AND KARA, AUVA TALUK, ALUVA - 683 572** **BY ADVS.P.B.KRISHNAN** **P.M.NEELAKANDAN** **P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER B.ANUSREE MEERA P.** ## **RESPONDENTS/APPELLANTS/RESPONDENTS:** - **1 KAMALU, AGED 70 YEARS W/O. LATE RAMACHANDRAN, RESIDING AT KAPRAKKATTU HOUSE, PARAKKULAM ROAD, ANGAMALY VILLAGE AND KARA, ALUVA TALUK, ALUVA - 683 572** - **2 REMA, AGED 46 YEARS** - **D/O. LATE RAMACHANDRAN, RESIDING AT KAPRAKKATTU HOUSE, PARAKKULAM ROAD, ANGAMALY VILLAGE AND KARA, ALUVA TALUK, ALUVA - 683 572** - **3 MANIKUTTAN, AGED 44 YEARS S/O. LATE RAMACHANDRAN, RESIDING AT KAPRAKKATTU HOUSE, ANGAMALY VILLAGE AND KARA, ALUVA TALUK, ALUVA - 683 572** - **4 DILEEPAN, AGED 42 YEARS S/O. LATE RAMACHANDRAN, RESIDING AT KAPRAKKATTU HOUSE, PARAKKULAM ROAD, ANGAMALY VILLAGE AND KARA, ALUVA TALUK, ALUVA - 683 572** **BY ADV SUNIL V.MUHAMMED, R1 TO R4** - **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.R.No.365 of 2019** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.No.365 of 2019** **------------------------------------------Dated this the 24[th] day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This rent control revision filed under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 04/07/2019 in R.C.A.A.No.17/2018 on the file of the Rent Control Appellate Authority (RCAA), North Paravur, against the order dated 21/03/2016 in R.C.P.No.5/2014 on the file of the Rent Control Court (RCC), Aluva. The revision petitioner herein is the respondent in the appeal and the petitioner-landlord in the R.C.P. The respondents herein are the appellants in the appeal and the respondents-tenants in the R.C.P. The parties and documents will be referred to as described in the R.C.P. 2. R.C.P.No.5/2014 was filed by the petitioner seeking eviction under Section 11(3) of the Act. According to the petitioner, the petition schedule building situated over an extent of 2.120 cents was obtained by the petitioner as per Ext.A1 settlement deed. The petition schedule building had been taken on rent by the predecessor-in-interest of the respondents, namely, Ramachandran, from the grandmother of the petitioner on 12/07/1976 for 3 ## **R.C.R.No.365 of 2019** conducting a tailoring shop. The respondents are the wife and children of the said Ramachandran. After the death of Ramachandran, though the respondents continued with the tenancy, they are not doing any serious business therein. The respondents have other sources of income. The present monthly rent of the building is ₹3,000/-. The building is situated on the east of National Highway in Angamaly Town. The brothers of the petitioner's father, namely, Ponnappan and Ramesan, are holding properties on the northeastern side of the petition schedule property. The petitioner and his paternal uncles together are in possession of 8.120 cents which is inclusive 2.120 cents wherein the petition schedule building is situated. The petitioner and the aforementioned persons, decided to construct a three-storied shopping complex behind the petition schedule building. For the said purpose, the petitioner's uncle Ramesan approached the local authorities with Ext.A2 plan. As per Ext.A2 plan, the space occupied by the tenanted premises is to be left vacant after demolishing the same. The access to the shopping complex from the National Highway would be possible only if the tenanted premises is demolished. There is no proper view for the shopping complex from the National Highway due to existence of the petition schedule building. The schedule building is situated on the south-western corner of the shopping complex and hence the R.C.P. was filed seeking eviction under Section 11(3) of the Act. 4 ## **R.C.R.No.365 of 2019** 3. The respondents-tenants entered appearance and filed counter denying the need alleged in the petition. According to them, it is only a mere ruse for eviction. They also claimed the protection under the second proviso to Section 11(3). 4. PWs.1 to 4 were examined and Exts.A1 to A18 were marked on the side of the petitioner. RWs.1 and 2 were examined on the side of the respondents and Exts.B1 to B4 were marked. The report and plan of the Advocate Commissioner have been marked as Exts.C1 and C1(a) respectively. The RCC on appreciation of the oral and documentary evidence, found the need to be _bona fide_ and allowed the R.C.P. under Section 11(3). The matter was taken up in appeal by the respondents, which appeal has been allowed and the order of eviction passed by the RCC has been set aside. Aggrieved, the petitioner/landlord has come up in appeal. 5. The only point that arises for consideration is, whether the concurrent findings of the RCC and RCAA suffer from any illegality, irregularity or impropriety. 6. Heard Adv.P.B.Subramanyan, the learned counsel for the revision petitioner and Adv.Sunil V.Muhammed, the learned counsel for the respondents. 7. Section 20 of the Act says that, the High Court may, at any time, on the application of any aggrieved party, call for and examine the records 5 ## **R.C.R.No.365 of 2019** 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 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. It was further held in that - 6 ## **R.C.R.No.365 of 2019** (i) There is no reason to read and interpret S.20 of the Act narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby. (ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to "any order" and / or any proceedings, are available to be examined by the High Court for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitation on the scope of the High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as the law requires and justice demands. The Court can examine whether the findings rendered by the appellate authority are plausible and to consider that aspect, the Court can refer to the pleadings and evidence adduced by the parties. A pedantic approach cannot be made while examining the issue in the light of the requirement of the Act ( **Simon v. Rappai, 2008 (2) KHC 863)** . 8. The RCAA interfered with the finding of the RCC only on the ground that name of the petitioner is not seen in Ext.A2 plan and the role of the petitioner is not clear in Ext.A14 agreement. Admittedly, the shopping 7 ## **R.C.R.No.365 of 2019** complex agreed to be constructed as per Ext.A14 agreement and Ext.A2 plan, has been constructed. As per Ext.A18, the petitioner and his uncle Ponnappan executed a power of attorney in favour of his other uncle, namely, Ramesan, by which the latter has been authorised to do everything for and on behalf of the former. That explains the reason as to the absence of the name of the petitioner and the presence of the name of Ramesan alone in Ext.A2 plan. Ext.A18 was never noticed by the RCAA. 9. The other reason which prompted the RCAA to interfere with the order of the RCC is on the ground that the role of the petitioner is not clear in Ext.A14. We cannot agree with this finding also of the RCAA. The parties in Ext.A14, which includes the petitioner herein, are seen to have entered into an agreement to construct a multi-storied building behind the petition schedule property after demolishing the existing buildings including the petition schedule building. In Ext.A2 plan, the area where the petition schedule building is situated is shown as the loading and unloading area. The fact that the parties in Ext.A14 have acted upon the same, is clear from the fact that a multi-storied shopping complex has been constructed as agreed to in the agreement. Therefore, the RCC had rightly appreciated the evidence on record and granted eviction under Section 11(3) of the Act. The RCAA substantially erred in interfering with the findings of the RCC. Further, the respondents were also unable to establish the benefit of the second proviso to 8 ## **R.C.R.No.365 of 2019** Section 11(3) of the Act. As the RCAA has erred in interfering with the findings of the RCC, the same needs to be interfered with. In the result, the RCR is allowed. The impugned judgment is set aside. The order of eviction passed by the RCC under Section 11(3) of the Act is confirmed. The respondents shall vacate the building within a period of one month from the date of this order. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/