Chittankandi Sasidharan v. Kochipeedikayil Kasim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943** **R.C.REV. NO. 156 OF 2021** **AGAINST JUDGMENT DATED 05.08.2021 IN R.C.A.NO.74 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), THALASSERY AND THE ORDER DATED 30.01.2016 IN R.C.P.NO.149 OF 2015 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** **CHITTANKANDI SASIDHARAN,** **AGED 69 YEARS, S/O.KUMARAN, DOOR NO.PD 230 (OLD PD 242C), FLOUR MILL, KURUVA ROAD, P.O.THAYYIL, KANNUR - 670 003.** **BY ADV C.LEENA** **RESPONDENT:** **KOCHIPEEDIKAYIL KASIM** **AGED 72 YEARS, S/O.ABDUL RAHIMAN, BUSINESS, 'SHABNA COTTAGE', THANA, KANNUR - 670 012.** **BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 20.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No. 156 of 2021 ## **O R D E R** ## Ajithkumar, J. The petitioner in this Rent Control Revision filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is the tenant. The respondent-landlord filed R.C.P.No.149 of 2015 before the Rent Control Court (Principal Munsiff), Kannur, seeking eviction under Section 11(2)(b) and 11(3) of the Act. The Rent Control Court ordered eviction under Section 11(3) of the Act. The appeal filed by the petitioner as R.C.A.No.74 of 2016 before the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery was dismissed. Feeling aggrieved of the said judgment and the order, the petitioner filed this Revision Petition. 2. The respondent sought eviction of the petitioner on the basis of the contention that the petitioner kept the rent from 01.03.2015 in arrears and the respondents wanted the petition schedule shop room along with its adjacent rooms to be used as a godown of his existing business under the name and style 'Tap Gallery and Pipe Gallery'. The petitioner 3 R.C.Rev.No. 156 of 2021 resisted the claim for eviction by filing a counter statement. He contended that there was no purposeful arrears of rent and the need urged by the respondent was not bonafide inasmuch as he has vacant possession of other rooms in the same building and that the petitioner has been depending for his livelihood solely on the income derived from the business being conducted by him in the petition schedule shop room. It was also contended that no other building is available in the locality for shifting his flour mill business being conducted in the petition schedule shop room. 3. The Rent Control Court examined PW1, PW2, RW1 and RW2. Exts.A1 to A15, B1, B1(a) and Ext.C1 were marked in the joint trial of R.C.P.No.149 of 2015 together with R.C.P.No.151 of 2015. After analysing and appreciating the said evidence, Rent Control Court ordered eviction under Section 11(3) of the Act. The prayer for eviction under Section 11(2)(b) of the Act was not pressed by the respondent before the Rent Control Court. The Appellate Authority confirmed the order of eviction. 4 R.C.Rev.No. 156 of 2021 4. Heard the learned counsel for the appellant and the learned counsel appearing for the respondent. 5. The learned counsel appearing for the petitioner mainly stressed on the point that at least three rooms in the same building are available vacant and the respondent can very well use the said rooms for the godown. The explanation offered by the respondent not to use the said rooms is quite unsatisfactory, and therefore, the petitioner is entitled to be protected from eviction by virtue of the first proviso to Section 11(3) of the Act. The learned counsel also would submit that the said facts would tell upon the bonafides of the respondent in claiming eviction on the ground of own occupation as well. Coming to the second proviso to Section 11(3) the learned counsel conceded that there has not been enough evidence in support of the plea of the petitioner. 6. PW1 is the respondent-landlord. He deposed regarding his requirement of getting the petition schedule shop room as well as the adjoining room, which is the subject matter R.C.P.No.151 of 2015 on the file of the Rent Control 5 ## R.C.Rev.No. 156 of 2021 Court, Kannur for accommodating godown of his sanitary business. It is his version that the godown is now housed in a rented premises and it is an absolute necessity to shift the godown to his own shop rooms, which are quite adjacent to his show room. 7. PW2 was examined to prove that the godown of the respondent has been accommodated in the rented premises. PW2 deposed that the building of his children was let out to the respondent and it is being used by him as godown. Ext.B10 is the rent agreement. The Appellate Authority as well as the Rent Control Court on considering the said evidence found that the godown of the respondent business concern is now housed in a rented building and his need to shift the same to the petition schedule shop room and the adjacent room is genuine and bonafide. 8. It has come out in evidence that two rooms in the first floor of the same building are available vacant. But from the evidence of PW1 and Ext.C1, it has been proved that the said rooms are small ones and the staircase is not convenient 6 R.C.Rev.No. 156 of 2021 enough to use the said rooms for the purpose of godown. The authorities below relying on the said evidence held that the first proviso to Section 11(3) cannot be invoked in this case to deny the claim for eviction. 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. 7 R.C.Rev.No. 156 of 2021 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 Court. While considering whether the High Court could have reappreciated 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 reappreciating 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. 8 R.C.Rev.No. 156 of 2021 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 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 9 R.C.Rev.No. 156 of 2021 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 Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate 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 re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist. 10 R.C.Rev.No. 156 of 2021 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 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 11 R.C.Rev.No. 156 of 2021 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 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. The Appellate Authority, being the first appellate court, has considered and marshalled the entire evidence in great detail and confirmed the finding of the Rent Control Court. 16. Having considered all the aforesaid aspects, we are of the view that there is no reason to interfere with the finding of the judgment of the Appellate Authority. It does not suffer from any illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 17. The learned counsel for the petitioner has made a request to afford one year for vacating the premises pointing out the difficulty in finding out another room and making 12 R.C.Rev.No. 156 of 2021 necessary arrangements for shifting his business. The learned counsel for the respondent is agreeable to grant nine months’ time. 18. Having considered all the aspects, we deem it appropriate to grant nine months’ time to surrender vacant possession of the petition schedule shop room, 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 shop room to the petitioner-landlord within nine months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room and further that he will conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; 13 ## R.C.Rev.No. 156 of 2021 - (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, 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 shop room 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