Bushra Samad and others v. Santhamaniyamma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939 RCRev..No. 40 of 2018 -----------------------AGAINST THE JUDGMENT IN RCA 6/2014 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), PATHANAMTHITTA DATED 25-08-2017 AGAINST THE ORDER IN RCP 1/2013 of RENT CONTROL (MUSNIFF) COURT, ADOOR DATED 12-12-2013 REVISION PETITIONER(S)/APPELLANTS 2 TO 4 IN R.C.A. NO. 6/2014 & RESPONDENTS IN R.C.P.NO. 1/2013 - 1 BUSHRA SAMAD, AGED 41 YEARS, W/O. LATE ABDUL SAMAD, RESIDING AT MURINGAMOOTTIL HOUSE, EDATHARA, KALANJOOR P.O., PATHANAPURAM VILLAGE, KOLLAM DISTRICT. - 2 AFSAL SAMAD, AGED 21 YEARS, S/O. LATE ABDUL SAMAD, RESIDING AT MURINGAMOOTTIL HOUSE, EDATHARA, KALANJOOR P.O., PATHANAPURAM VILLAGE, KOLLAM DISTRICT. - 3 AFSANA SAMAD, AGED 16 YEARS (MINOR), D/O. LATE ABDUL SAMAD, RESIDING AT MURINGAMOOTTIL HOUSE, EDATHARA, KALANJOOR P.O., PATHANAPURAM VILLAGE, KOLLAM DISTRICT. (MINOR ADDITIONAL 3RD REVI: PETITIONER IS REPRESENTED BY THE GUARDIAN, HER MOTHER THE 1ST REVI: PETITIONER) BY ADV.SRI.JAGAN ABRAHAM M.GEORGE RESPONDENT(S)/RESPONDENTS/PETITIONERS: --------------------------------------------------- 1. SANTHAMANIYAMMA, AGED 60 YEARS, W/O. LATE KUTTAN PILLAI, RESIDING AT GOWREESAM (KANJIRAKATTU), KALANJOOR MURI, KALANJOOR VILLAGE, KONNI TALUK, PIN-689691 2. K.S. AMBILI, AGED 30 YEARS, D/O.SANTHAMANIYAMMA, RESIDING AT GOWREESAM (KANJIRAKATTU), KALANJOOR MURI, KALANJOOR VILLAGE, KONNI TALUK, PIN-689691 3. K.S.VIDHYA, AGED ABOUT 25 YEARS, D/O.SANTHAMANIYAMMA, RESIDING AT GOWREESAM (KANJIRAKATTU), KALANJOOR MURI, KALANJOOR VILLAGE, KONNI TALUK, PIN-689691 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCRev..No. 40 of 2018 () APPENDIX PETITIONER(S)' EXHIBITS: ANNEXURE A1: TRUE COPY OF THE RATION CARD OF THE REVISION PETITIONERS/TENANTS. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A. TO JUDGE ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================== R.C.R. No.40 OF 2018** ## **==========================** Dated this the 19[th] day of February, 2018 ## **ORDER** _Mary Joseph, J._ The tenants in R.C.P.No.1/2013 on the files of the Rent Control Court, Adoor is in revision against the concurrent findings of the said court as well as that of the Rent Control Appellate Authority, Pathanamthirra on bona fide need of the landlord and consequent order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). 2. In the R.C.P., vacant surrender of the tenanted premises in the possession of the tenant was sought by the landlord. One Kuttan Pillai, the late husband of Smt.Santhamaniyamma was the owner of the petition schedule building and the rooms in the ground floor of the said building had been leased out to the tenant. The daughter of Smt.Santhamaniyamma has completed M.B.A. and being unemployed, the latter decided to start a business in home appliances **R.C.R.40/2018** :-2-: for her daughter in the shop room occupied by the tenant as well as other rooms in her possession and accordingly, a demand for vacant surrender was made to the tenant in that regard. Though several rooms were available in various parts of Kalanjoor junction to accommodate his business at the relevant time of demand, the tenant was not ready to surrender the petition schedule shoproom. Despite serving of lawyer notice demanding vacant surrender, the tenant has not responded favourably and accordingly, R.C.P. was filed seeking eviction under Section 11(3) of the Act. Rent was also kept as arrears, but as admitted by the landlord, after receiving the notice, it was cleared off by the tenant by making payment. 3. The tenant resisted the R.C.P. contending that textile business is being run in the petition schedule shoproom and since he is laid up due to paralysis, his wife is managing the business at the relevant time. It is contended further that, the daughter of late Kuttan Pillai, for whose need the vacant surrender of the tenanted premises was sought, is employed in Whirlpool Company. It is also contended that **R.C.R.40/2018** :-3-: rooms were lying vacant near to the petition schedule shop room in the possession of the landlord and those could be utilised by him for the proposed business, that other suitable shop rooms are not available in the locality for him to shift his business and that no other source of income is available for him to sustain his livelihood apart from the one conducted by him in the tenanted premises. 4. Before the Rent Control Court, on the side of the landlord, the landlady and her son-in-law respectively were examined as PW1 and PW2 and Exts.A1 to A6 were let in as documentary evidence. On the side of the tenant, the tenant herself and yet another witness respectively were examined as RW1 and RW2 and Exts.B1 to B4 were marked. Exts.X1,X2, X1 series and C1,C1(a) and (b) were also marked as court exhibits. 5. The Rent Control Court, Adoor considered the rival contentions and ultimately found on the strength of the evidence adduced before it that the need projected by the landlord is a bona fide one. It is urged by Sri.Jagan Abraham.M.George, the learned counsel **R.C.R.40/2018** :-4-: representing the tenant that the Rent Control Court and the Rent Control Appellate Authority have erred in arriving at a finding in favour of the landlord and in view of the appreciation of evidence in its wrong perspective, this Court's interference in revisional jurisdiction is needed. In view of the argument so advanced by the learned counsel, we had gone into the evidence available on record to see whether the court below had erred in appreciating the same. 6. The landlady, who was examined as PW1, had categorically stated about the requirement of the tenanted premises in vacant possession for her daughter, a graduate in MBA, who was unemployed then, to start a business in home appliances. According to her, she had the financial resources and her daughter had the skill to start the proposed business. The tenant though raised a contention that the daughter of the landlady is employed in Whirlpool, did not adduce any evidence in that respect. Even if such a proof is produced, if the daughter of the landlady cherishes the desire to start a business aiming better prospects, she cannot be blamed for that and it could not **R.C.R.40/2018** :-5-: be taken to have any impact upon the bona fides in the need projected by her, liable to deteriorate it. Ext.A2 series are also brought in evidence, which are nothing, but applications filed by the landlady to obtain licence for starting the proposed business. The son-in-law of the landlady had also mounted the box and deposed as PW2. According to him, both himself and his wife are MBA holders. He deposed categorically about the intention to start a business in the petition schedule shop room after obtaining the same in vacant surrender from the tenant. According to him, he had resigned from his employment with Whirlpool in May,2013 itself and his wife is totally unemployed. 7. The wife of the tenant, who was examined as RW1, had deposed that the landlord had attempted to obstruct the smooth running of her business by several measures. She had also procured and got marked Ext.X1 series before the Rent Control Court, which are copies of complaints lodged by her against the landlord for causing such obstruction. It is true that the oral evidence tendered by **R.C.R.40/2018** :-6-: RW1 that the landlord obstructed the entry to the tenanted premises and thus hindered the smooth running of the textile business conducted by her therein was well strengthened by Ext.X1 series which include complaints lodged by RW1 before the Accommodation Controller and other authorities to project the cause of hindrance from the landlord. But, those cannot be taken to have the impact of deteriorating or adversely affecting the bona fides in the need projected by the landlord in any way and therefore, cannot be said to have discarded erroneously by the authorities below. 8. Therefore, strong evidence have been adduced by the landlord to establish the need to start the proposed business as a bona fide one. Not only the need is established by the oral evidence tendered, but also by Ext.A2 series, which are the applications for licence filed by the tenant before the Kalanjoor Grama Panchayath. Apart from establishing the desire in mind, the landlord has succeeded in establishing that positive acts have already been initiated by him towards starting the venture. His evidence that he resigned the job in **R.C.R.40/2018** :-7-: whirlpool in May,2013 and that his wife is unemployed also remained uncontroverted by the tenant. The documentary evidence of Ext.A2 series are also available, which would convincingly establish the positive actions on move from the side of the landlord to achieve his desire to start the proposed business, materialised. It is in the backdrop of these strong pieces of evidence on record that the Rent Control Court had found the need projected by the landlord for vacant surrender of the petition schedule shop room as a bona fide one. On a true and proper appreciation of the said evidence, the Rent Control Appellate Authority had also rendered a finding concurrent to that of the Rent Control Court. In the said circumstances, we are not convinced by the argument of the learned counsel for the tenant that the appreciation of the evidence on record by the authorities below in an erroneous and improper manner, had resulted in rendering a finding regarding the bona fide need in favour of the landlord. 9. The next question mooted for consideration is whether the evidence on record has been erroneously appreciated by the **R.C.R.40/2018** :-8-: authorities below while entering into a finding against the tenant that he is not entitled to avail the benefits of the first and second proviso to Section 11(3) of the Act. 10. In this connection, the oral evidence of the wife of tenant as RW1 and documentary evidence consisting of Ext.B1, Exts.C1, C1(a) and (b) are relevant. RW1 had asserted orally that herself and her family were depending mainly on the income derived from the petition schedule shoproom for their livelihood and that other suitable rooms are not available in the locality for her to shift the business. Ext.B3 is the copy of the ration card produced by her and it cannot be taken to have any relevancy in the matter of proof of her main source of income. 11. It is true that a commission was taken up by the tenant to establish the 2[nd] limb of the second proviso to Section 11(3). But the Advocate Commissioner, who had been deputed to ascertain the matter, through his report filed as Ext.C1 had helped the court only to arrive at a finding that a vacant room is available in the locality itself **R.C.R.40/2018** :-9-: at a distance of about 75 metres away from the tenanted premises. 12. Therefore, the attempt of the tenant to establish conjunctively the twin limbs of the second proviso to Section 11(3) in discharge of the statutorily imposed burden has thoroughly failed and it was in the said circumstances that the authorities below have found concurrently that the benefit of the 2[nd] proviso is also not available to the tenant. 13. The decision rendered by the Constitutional Bench of the Apex Court in **Hindustan Petroleum Corporation Ltd.** v. **Dilbahar Singh** [2014(4)KLT 182] clearly describes the realm within which, a court exercising revisional jurisdiction could function. The dictum of the Apex Court is extracted hereinbelow:- “ _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 the Court/Authority below, if perverse or has been arrived at_ **R.C.R.40/2018** :-10-: _without consideration of the materials 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 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.”_ 14. In view of the aforesaid dictum, the revisional court could only exercise the jurisdiction from within the ambit as prescribed by the Apex Court in the decision supra. It could only be exercised by the court, when the party approaching, would be able to point out that the finding of fact recorded by the court/authority below is perverse or has been arrived at without consideration of the material evidence on record or such finding is based on no evidence or misreading of the **R.C.R.40/2018** :-11-: evidence or is grossly erroneous that if allowed to stand, it would result in gross miscarriage of justice. Only in the aforesaid circumstances, the court exercising revisional jurisdiction can entertain a revision petition filed to correct the error, which is patent. 15. As already found from the discussion as hereinabove made, the appreciation of the evidence by the court/authority below to arrive at the concurrent findings on the bona fide need is not vitiated by any of the grounds described in the decision cited supra and therefore, interference is totally uncalled for. On the reason, we are declined to interfere with the concurrent findings. At the time when we are about to part with the judgment, the learned counsel for the revision petitioner has canvassed for granting an extension of one year time to surrender vacant possession of the tenanted premises to the landlord. One year is too lengthy a time and that would undoubtedly cause prejudice to the landlord, who has established his bona fide need and obtained an order in his favour. Therefore, we are inclined to grant only six months' time on terms as **R.C.R.40/2018** ## :-12-: mentioned hereinbelow:- - _1) The tenant shall file an affidavit containing an unconditional undertaking that she shall surrender vacant possession of the tenanted premises on expiry of the six months' period as stated above, which would be counted from the date on which the affidavit is filed. Such an affidavit shall be filed within two weeks from the date of receipt of a copy of this order._ - _2) The tenant shall pay arrears of rent if any and also continue to pay the monthly rent, at the admitted rate to the landlord, without failure._ This Rent Control Revision fails and accordingly, is dismissed. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **MARY JOSEPH (JUDGE)** **spc/** **R.C.R.40/2018** :-13-: **C.T. RAVIKUMAR, J.** **R.C.R.40/2018** :-14-: **JUDGMENT September, 2010**