Chalikkandy Raveendran v. Balán and Others

## **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.36 OF 2021 AGAINST THE JUDGMENT DATED 19.11.2020 IN R.C.A.NO.50 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERY AND THE ORDER DATED 20.01.2018 IN R.C.P.NO.29 OF 2008 OF THE RENT CONTROL COURT (MUNSIFF), THALASSERY** ## **REVISION PETITIONER:** ## **CHALIKKANDY RAVEENDRAN** **AGED 70 YEARS, S/O. KUNHIRAMAN, RESIDING AT CHALIKKANDY HOUSE, MOUVANCHERI P. O., KANNUR. BY ADV SRI.C.K.SREEJITH** ## **RESPONDENTS:** |**1**|**CHALIKKANDY BALAN**| |---|---| ||**AGED 74 YEARS, S/O. KUNHIRAMAN,**| ||**NOW RESIDING AT VELARODE HOUSE, KANAYANNUR,**| ||**P.O.MOUVANCHERI, C.P.VIII-83, M.C.R. BANK,**| ||**IRIVERY AMSOM, MIDAVILODE DESOM,**| ||**KANNUR - 670613.**| |**2**|**SAFIA E.K.**| ||**W/O. MOOSA, RESIDING AT SAFIA MANZIL,**| ||**P.O.KOYYODE (VIA), KADACHIRA, KANNUR - 670621.**| |**3**|**KABEER E. K.**| ||**S/O. MOOSA, RESIDING AT SAFIA MANZIL,**| ||**P.O. KOYYODE (VIA), KADACHIRA, KANNUR - 670621.**| 2 ## R.C.Rev.No.36 of 2021 - **4 HAIRUNNEESA E.K.** - **D/O. MOOSA, RESIDING AT SAFIA MANZIL, P.O. KOYYODE (VIA), KADACHIRA, KANNUR - 670621.** - **5 SHAKEER E.K.** **S/O. MOOSA, RESIDING AT SAFIA MANZIL, P.O.KOYYODE (VIA), KADACHIRA, KANNUR - 670621. BY ADV SMT.C.LEENA** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.36 of 2021 ## **O R D E R** ## Ajithkumar, J. This is a Rent Control Revision filed by the petitionertenant. R.C.P.No.29 of 2008 was filed by the respondentlandlord before the Rent Control Court (Munsiff), Thalassery, seeking eviction of the tenant under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition was allowed ordering eviction of the petitioner from the petition schedule shop room under Sections 11(2)(b) and 11(3) of the Act. The plea for eviction under Section 11(4)(i) was declined. The tenant's appeal, R.C.A.No.50 of 2018 was dismissed by the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery. That judgment is under challenge in this revision petition. 2. Order of eviction under Section 11(2)(b) of the Act was not challenged before the Appellate Authority and therefore the question requires consideration is the order for eviction under Section 11(3) of the Act alone. 4 R.C.Rev.No.36 of 2021 3. The daughter of the landlord, Smt.Hairunneesa, is a dependent on him. She wanted to start a tailoring-cumreadymade unit in the petition schedule shop room. The landlord does not have in his possession any other building suitable for the purpose. Setting forth those reasons, the landlord sought eviction on the ground of bonafide need. 4. The petitioner resisted the said claim by contending that Smt. Hairunneesa is incapable of conducting any tailoring or readymade business and the need projected was only a ruse for eviction. The petitioner also contended that he has been depending for his livelihood on the income derived from the tailoring business being conducted by him in the petition schedule shop room and no other suitable room or building is available in the locality to shift his business. 5. Both the authorities below found that the need urged by the respondent-landlord was genuine and that the petitioner was not entitled to get the benefit of the second proviso to Section 11(3) of the Act. During the pendency of the appeal, the landlord died and his legal representatives were impleaded, who 5 ## R.C.Rev.No.36 of 2021 are respondents 2 to 5. 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents 2 to 5. 7. Smt.Hairunneesa was examined as PW2. The landlord gave evidence as PW1. PW3 is the husband of PW2. All of them deposed before court regarding the need. It is their version that PW2 wanted to start a tailoring-cum-readymade shop in order to generate income to support her family. It was further stated that PW3, who was working in Gulf, lost his job and came back. Therefore, PW3 also is there to render help and support to PW2. The petitioner contended that in 2012 only PW3 lost his job, and when the same is pointed out as a reason for starting business by PW2 in the petition filed in the year 2008, the projected need becomes doubtful. Both the authorities below repelled that contention. The fact that PW3 was employed does not mean that his wife, PW2, cannot start and conduct a business of her own. When PW3 lost his job, that became an added necessity for PW2 to start the business. We are of the view that such a latent 6 ## R.C.Rev.No.36 of 2021 development is not a reason to find that the need urged was not genuine. 8. The contention of the petitioner based on the second proviso was found against for the reason that he did not produce any document in regard to the income he has been deriving from the tailoring shop in the petition schedule shop room. His oral testimony alone is insufficient to find that fact in his favour. It is an admitted fact that the petitioner took up an employment in Kuwait and he left for Kuwait after entrusting the business with his brother, the 1[st] respondent. In such a situation, it cannot be said that he had to depend for his livelihood on the income derived from the business in the petition schedule shop room. Availability of other rooms for availing on rent in the locality was deposed to by PW1. No effort was taken by the petitioner to prove the nonavailability. Based on those evidences, the courts below held that the petitioner is not entitled to get the benefit of the second proviso to Section 11(3) of the Act. 7 R.C.Rev.No.36 of 2021 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 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. 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 8 R.C.Rev.No.36 of 2021 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. 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 9 R.C.Rev.No.36 of 2021 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 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 10 R.C.Rev.No.36 of 2021 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. 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 11 R.C.Rev.No.36 of 2021 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 supported by evidence on record and could not even be said - to be perverse in any way. The High Court could not have re 12 R.C.Rev.No.36 of 2021 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. 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 in detail and confirmed the finding of the Rent Control Court. 16. Accordingly, we hold that there is no reason to interfere with the findings in the judgment of the Appellate Authority or in the order of the Rent Control Court. The judgment and the order do not suffer from any illegality, irregularity or impropriety. Hence this Revision Petition fails. We dismiss it. 17. The learned counsel for the petitioner has made a request to afford one year time for vacating the building pointing out the difficulty in finding another building and making necessary arrangements for shifting. The learned counsel for the respondent-landlord would submit that a 13 R.C.Rev.No.36 of 2021 period of three months for surrendering the room is reasonable. 18. Having considered all the aspects, we deem it appropriate to grant six 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-landlord within six 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 14 ## R.C.Rev.No.36 of 2021 continue to pay rent for every succeeding months, 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-landlord 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