C.P. Karthikeyan @ Babu v. Haseena Nazeer and A.P. Abdul Nazer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021/18TH KARTHIKA, 1943 R.C.REV.NO.106 OF 2021** **AGAINST THE JUDGMENT DATED 20.01.2021 IN R.C.A.NO.10 OF 2017 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE), KALPETTA, WAYANAD AND THE ORDER DATED 06.03.2017 IN R.C.P.NO.9 OF 2013 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF), MANANTHAVADY,** ## **WAYANAD** ## **REVISION PETITIONER:** ## **C.P.KARTHIKEYAN @ BABU** **AGED 64 YEARS, S/O. P.RAGHAVAN,** **BABAS HARDWARES, NEAR POST OFFICE, DOWN BAZAR, MANANTHAVADY P.O., WAYANAD DISTRICT, PIN-670645.** **BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SRI.M.V.BALAGOPAL SMT.PREETHI. P.V.** ## **RESPONDENTS:** **1 HASEENA NAZEER AGED 45 YEARS, W/O. A.P.NAZER, ATHIRANIPURATH HOUSE, PANDIKADAVU, MANANTHAVADY VILLAGE, TALUK & POST, WAYANAD DISTRICT, PIN-670645.** 2 R.C.Rev. No.106 of 2021 **2 A.P.ABDUL NAZER, AGED 52 YEARS ATHIRANIPURATH HOUSE, PANDIKADAVU, MANANTHAVADY VILLAGE, TALUK & POST, WAYANAD DISTRICT, PIN-670645.** **BY ADVS. SRI.JOHN K.GEORGE SMT.M.B.SHYNI** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev. No.106 of 2021 ## **O R D E R** ## Ajithkumar, J. The revision petitioner is the respondent-tenant in Rent Control Petition No.9 of 2013 on the file of the Rent Control Court (Munsiff), Mananthavady. The Rent Control Court allowed the relief of eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965; while dismissing the prayer for eviction under Section 11(4)(ii) of the Act. The petitioner filed Rent Control Appeal No.10 of 2017 before the Rent Control Appellate Authority (Additional District Court-II), Kalpetta. Having failed, the petitioner has come up with this Revision Petition under Section 20 of the Act. 2. The respondents-landlord pleaded that the petitioner has kept the rent for the petition schedule shop room in arrears since December, 2009, the respondents bonafide in need of the petition schedule room for starting a textile business and the petitioner had effected material alterations to the petition schedule shop room in a way as to 4 R.C.Rev. No.106 of 2021 reduce its value and utility. 3. The petitioner resisted the eviction petition by filing a counter statement. It was contended that the petitioner was a tenant in another room belonging to the father of the 1[st] respondent, to whom the petition schedule room also originally belonged to, and after obtaining vacant possession of that room saying that his son wanted to start a business, he did not care to start business. The present attempt of the respondents to evict the petitioner stating that the room is required for starting a textile readymade business is without any bonafides. The benefit of second proviso to Section 11(3) was also claimed by the petitioner. It was further contended that the alleged material alteration was carried out by the 1[st] respondent’s father. 4. On 20.09.2021, when this matter came up for admission, Advocate Sri.John K.George entered appearance for the respondents. Today, we heard Senior Counsel Sri. T. Sethumadhavan appearing for the petitioner and Sri. John K. George, the learned counsel for the respondent. 5 R.C.Rev. No.106 of 2021 5. The petitioner confined his contentions in this Revision Petition to one ground; need urged by the respondents is not bonafide. It is contended that having the original landlord, father of the 1[st] respondent, got back in 2002 another room let out to the petitioner on the pretext of his son’s need of starting a pharmacy business, did not start any such business, instead let it out to third parties. Therefore, the present attempt is only a ruse for evicting the tenant from the petition schedule room and not at all for starting any business by the respondents. 6. PW1 is 1[st] respondent-landlady. She deposed that she wanted to start a textile readymade business in the petition schedule shop room. It has come out that PW1 does not have any avocation now and she has capacity and resources to start such a business. Moreover, her husband, presently abroad, is intending to come back to join the business. When the landlady categorically put forward such a case and gives evidence before the court, it is not possible for the tenant to contend that the projected need is not genuine. 6 R.C.Rev. No.106 of 2021 In the absence of anything in evidence to show that the respondents have any dubious object for ejecting the petitioner from the tenanted premises, it is not possible to doubt the bonafides of the respondents. ## 7. In **Ameer and Another v. M/s. B. Amoo and Brothers and Others [2019 (4) KLT 476]** this Court held that a mere desire or wish evinced by a landlord would not amount to bonafide need. Landlord must prove that he genuinely requires the accommodation for his own use or for the occupation of any member of his family dependent on him. In other words, bonafide need must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting a tenant. Applying that principle, we examined the genuineness of the need projected by the respondents. We are of the view that there is no reason to doubt the bonafides of the respondents. 8. The petitioner candidly admitted that the respondents are owners of the petition schedule shop room. The fact that the father of the 1[st] respondent got back another 7 R.C.Rev. No.106 of 2021 room earlier from the possession of the petitioner as a tenant saying that his son wanted to start a business in pharmacy is not disputed. The learned Senior Counsel argued that after obtaining vacant possession, without starting the business, let it out to another person and it definitely reflects the lack of bonafides on the part of the respondents. That was in 2002. It was not by the 1[st] respondent, but by her father. That can no way be a reason to doubt the need now projected by the respondents. 9. We, after hearing learned counsel appearing on either side and considering the materials on record, find that the Appellate Authority had appreciated the entire evidence and considered every aspect of the matter before holding that the need projected by the respondents is bonafide. The findings with reference to the first and second proviso to Section 11(3) also were rendered after considering all relevant aspects. 10. 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 8 R.C.Rev. No.106 of 2021 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. 11. 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 re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot 9 R.C.Rev. No.106 of 2021 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. 12. 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 10 R.C.Rev. No.106 of 2021 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. 13. 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 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 11 R.C.Rev. No.106 of 2021 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. 14. 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 12 R.C.Rev. No.106 of 2021 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. 15. 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 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 13 R.C.Rev. No.106 of 2021 jurisdiction. 16. We, in the light of the above legal principle, hold that, in exercising the powers under Section 20 of the Act, this Court cannot interfere with the impugned judgment of the Rent Control Appellate Authority (Additional District Court- I), Kalpetta in R.C.A No.10 of 2017. The Revision fails. 17. The learned Senior Counsel appearing for the petitioner would submit that in order to find out a room for shifting the business being conducted in the petition schedule room, at least one year time is required. Accordingly, he seeks to grant a period of one year for vacating the premises. The learned counsel for the respondents submitted that three months' time is more than enough to find out an alternative accommodation for the petitioner, who is said to be in possession of several other rooms. 18. Having considered the entire matter in detail, we deem it appropriate to grant six months' time for surrendering vacant possession of the shop room to the respondents. Hence, this Revision Petition is dismissed. The petitioner is 14 ## R.C.Rev. No.106 of 2021 granted six months' time to surrender the vacant possession on 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 six 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; - (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 15 R.C.Rev. No.106 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 shop room will stand cancelled automatically and the petitioners-landlords 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